Full opinion text
MEMORANDUM OPINION ROY, District Judge. On September 27,1978, plaintiffs Johnnie Gilbert and Horace Walters filed charges with the Equal Employment Opportunity Commission [EEOC] alleging racial discrimination by the Little Rock Police Department [LRPD], On September 27, 1978, plaintiffs Johnnie Gilbert, Horace Walters, Andrew Lockhart, and Billy O’Donald filed the original complaint in this action against the City of Little Rock, the Civil Service Commission [CSC], and Walter E. “Sonny” Simpson (in both his individual and official capacities). Relief was requested under 42 U.S.C. § 2000e-5(f), 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Fourteenth Amendment. On October 17, 1978, plaintiffs filed an amended complaint which dropped the CSC as a defendant. On February 16,1979, Julius Bryant, Jack Matlock, Maxie Alexander, Grady Anthony, Marcella Wilson, and Finis Lowe filed charges with the EEOC alleging racial discrimination by the LRPD. On February 22, 1979, Julius Bryant, Jack Matlock, Maxie Alexander, Grady Anthony, Marcella Wilson, Finis Lowe, Jessie Briscoe and Larry Bazzelle filed a motion to intervene and a complaint. Their action was based upon 42 U.S.C. § 2000e-5(f), 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, the Fourteenth Amendment, 31 U.S.C. § 1221, 31 U.S.C. § 1242, and 31 U.S.C. § 1244 of the State and Local Fiscal Assistance Act of 1972. The action was also brought under 42 U.S.C. § 3789d of the Omnibus Crime Control and Safe Streets Act of 1968. Injunctive relief and punitive and compensatory damages are sought by the plaintiffs and intervenors. This case was tried to the Court for most of a 3-week period in January 1982. At the close of plaintiffs’ case, a nonsuit was taken as to the individual case of intervenor Finis Lowe. At the conclusion of the trial the parties requested that the briefing schedule be delayed until the transcript was prepared. The last brief was filed on June 8, 1982, and the case is now ready for decision. On February 4, 1982, a hearing was held on intervenor Sergeant Grady Anthony’s request for a temporary injunction against the appointment of lieutenants from the eligibility list which was certified February 4, 1982. This Court denied the request for the reason that Sergeant Anthony had not shown the threat of irreparable injury or the other requirements necessary for the issuance of a preliminary injunction. Dataphase Systems, Inc. v. C. L. Systems, Inc., 640 F.2d 109 (8th Cir. 1981). In the case at bar, the plaintiffs and intervenors have alleged that the promotion system for the City of Little Rock impacts on the black employees in a disproportionate fashion, and that each of the individual plaintiffs and intervenors has been treated in a discriminatory fashion as to job assignments, discipline, and other matters. Another contention is that the number of black hires each year has an impact on the number of blacks available for promotion to supervisory positions in later years, so this issue will also be considered. Carlton McMullin (white) was City Manager from October 31, 1973, until approximately July 11, 1980. Mahlon Martin (black) has served as City Manager from July 21, 1980, to the present. Walter E. “Sonny” Simpson has served as Police Chief since July 9, 1977. Gale Weeks served as Police Chief from September 1, 1969, to April 20, 1977. The members of the City Board of Directors at the time of the trial were Gale Weeks (white), John Langston (white), Webb Hubbell (white), Myra Jones (white), Sandy Keith (white), Lottie Shackleford (black) and Mayor Charles Bussey (black). The Board of Directors, who are elected at large by the qualified voters of Little Rock, appoint the City Manager. The method of electing directors was upheld in the case of Leadership Roundtable, et al. v. City of Little Rock, et al., 499 F.Supp. 579 (E.D.Ark.1980), aff’d per curiam, 661 F.2d 701 (8th Cir. 1981), against a challenge based on racial discrimination. The Civil Service Commission [CSC] of the City of Little Rock, a body of five members, is responsible for certain matters relating to the Little Rock Police and Fire Departments. Arkansas law governs the jurisdiction and procedures of the CSC. Pursuant to statutory authority, the CSC has promulgated rules and regulations governing the administration and enforcement of its activities. The CSC is charged by state law with promulgating lists of candidates for promotions in civil service positions, and the certifying of candidates in numerical order from which the candidates are selected in exact rank order (Ark.Stak Ann. § 19-1603). The CSC has promulgated guidelines for promotional procedures in the Police Department. The rules and regulations of the CSC contain the following statement: “Discrimination based on race, religion, creed, sex or age is expressly forbidden. Any job candidate and/or employee may request and the Civil Service Commission will hear all appeals in violation of this section. Appeals on charges of discrimination shall be made to the Civil Service Commission, after administrative processes with management have been exhausted.” The CSC has jurisdiction over appeals from disciplinary actions in the Police Department. The following people have served on the CSC during the time between January 1, 1975, and the present: Roy Beard (white), April 1965 through April 1977; Dr. Jerry Jewell (black), April 1969 through April 1975; Peyton Rice (white), April 1969 through April 1975; Fred Hook (white), November 1971 through September 1978; Charles Crawford (black), April 1972 through April 1977; Dale Booth (white), November 1973 through present; Steve Baker (white), April 1975 through April 1981; Perlesía Hollingsworth (black), April 1977 through July 1979; Maryann Eastin (white), April 1977 through present; Lynn Davis (white), September 1978 through present; Darrell Brown (black), July 1979 through present; Sam Tatum (white), April 1981 through present. Ark.Stat.Ann. § 19-1603 requires the Civil Service Commissioners to prescribe and enforce regulations for Fire and Police Departments. Such rules and regulations have the force of law. This statute requires open, competitive examinations to be used to assess the qualifications of each applicant. An eligibility list must be maintained in order of standing on examination and automatically expires after one year. The department head must select the highest name on the list for promotion. Advertising of examinations is required. Ark.Stat.Ann. § 19-1307 requires that all examinations must be fair and impartial and must test the qualifications of applicants for the particular service and positions to be filled. Ark.Stat.Ann. § 19-1603 provides that no person shall be eligible for appointment to any position in the Police Department who has not arrived at the age of 21 years or who is over the age of 45 years. Ark.Stat.Ann. § 42-1005(e) (1979) empowered the executive commission on law enforcement standards to establish minimum selection and training standards for employment of all law enforcement officers. In accordance therewith, a Rules and Regulations Manual (Joint Exhibit 10) has been promulgated which provides in Section 1002 that an applicant for a position with a police department must not have been convicted by a state or by the federal government of a crime, the punishment for which could have been imprisonment in a federal penitentiary or a state prison. It also provides that an applicant for such a position must be a high school graduate or have passed the General Education Development [GED] test indicating high school graduation level. It provides that the governing body of any county, city or town may waive the high school graduate requirement or the GED test equivalency requirement at its discretion. The City of Little Rock has not waived this requirement. The educational and age requirements were supported by testimony in the record. Section 1002 of the regulations also sets forth other minimum' selection requirements. Act 45 of 1981 transferred all powers and functions of the executive commission to the newly formed Arkansas Commission on Law Enforcement Standards and Training. Walter E. “Sonny” Simpson is Chief of Police in the LRPD. Serving under him at the time of trial were two assistant chiefs, Clarence Hunter (black) and Jesse Hale (white). The department is divided into 7 divisions which are as follows: Administration, Community Relations and Training, Detention, Investigation and Apprehension, Patrol and Auxiliary, Records and Support, and Organized Crime and Intelligence. Five captains report to the assistant chiefs and are directly responsible for the command of the divisions. The job classifications of the uniformed personnel in the Police Department, beginning with the entry level category, are as follows: Police Officer, Sergeant, Lieutenant, Captain, Assistant Chief and Chief. The Personnel Department has created job descriptions for each rank which list the duties and requirements for each job. Police officers with 5 years of active service are eligible to apply for promotion to sergeant. (This minimum service requirement was raised from 3 to 5 years by the CSC on February 26, 1981.) Sergeants with 1 year active service in that job classification are eligible to apply for lieutenant. Lieutenants with 1 year active service in that job classification are eligible to apply for promotion to captain. Permanent lieutenants (those who have completed a probationary period) and captains are eligible to apply for promotion to assistant chief and chief. Police officers serve a period of probation of 12 months before appointment is complete and 6 months before any promotion is complete. The LRPD uses a book of rules and regulations and a policy manual by which the officers are to abide. The causes for reprimand, suspension or removal include but are not limited to the following: incompetence and neglect of duty, negligent or willful damage to public property or waste of public supplies, absence without leave and excessive absenteeism. Any employee suspended, dismissed or demoted from the LRPD may, by his written request to the CSC, have the action reviewed. Said request must be made within 10 days after notification by the department head requesting a hearing. The CSC shall grant an administrative hearing at which the employee may introduce evidence and be represented by a person of his choosing. The decision is by majority vote of the members of the CSC. The decision of the CSC may be appealed to the circuit court and higher. A Little Rock city ordinance supporting equal opportunity and affirmative action was adopted by the Board of Directors in 1971. The City of Little Rock adopted its first affirmative action plan in 1973 which was limited to the Police Department. In 1974 the plan was extended to cover all city departments. Other affirmative action plans were adopted in 1975,1979, and 1981. In a Title VII action the relevant time period begins 180 days prior to the filing of a charge with the EEOC, 42 U.S.C. § 2000e-5(e). All allegedly discriminatory actions which occurred prior to that cutoff date are treated as if they had never been the basis for a charge. Although such actions may be relevant background information, they have no present legal consequences. Even a practice which gives present effect to past discrimination is not unlawful under Title VII. United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). In the instant case the first EEOC charges were not filed until September 27,1978; therefore, the relevant time period for purposes of Title VII began on March 27, 1978. All acts which occurred prior to- that date are legal under Title VII. All promotion lists certified prior to that date are legal, and not relevant to the disparate impact issues. The statute of limitations for a 42 U.S.C. § 1981 action in Arkansas is Ark.Stat.Ann. § 37-206 (3 years). Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Martin v. Georgia-Pacific Corp., 568 F.2d 58 (8th Cir. 1977). Ark.Stat.Ann. § 37-206 is also the statute of limitations for § 1983 actions. Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977). Therefore, all allegedly discriminatory acts which occurred prior to September 27, 1975, are not remediable under § 1981 and § 1983. This is not a class action. Plaintiffs never included in their complaint any request for relief on behalf of a class nor did they move for class certification in accordance with the provisions of Rule 23 of the Federal Rules of Civil Procedure or Local Rule 24(3). However, at the end of the trial plaintiffs moved for certification of a class and the Court after careful consideration of the record denied the motion for lack of merit. The plaintiffs have no standing to press any claims of discriminatory discharge for none of the plaintiffs have been fired by the LRPD. Since all of the plaintiffs were hired, new hire statistics are only relevant as background information. Any issues affecting Clarence Hunter are now moot. He has not filed an EEOC charge nor has he filed suit against the LRPD. The facts did not warrant certifying a class in order to bring Hunter in as a party. Hunter has recently retired and is no longer employed at the LRPD. Any alleged discrepancy in his salary with Assistant Chief Hale was fully explained by the fact that Hale had been an assistant chief for 2 years longer than Hunter. There is no evidence whatever to support plaintiffs’ assertions that Hunter’s position was merely a “token” position. Although trial of this cause centered around Title VII, other causes of action were alleged in the complaints and must be discussed. An action brought under § 1981 is subject to the same allocation of the burden of proof as is present in Title VII disparate treatment cases. Kenyatta v. Bookey Packing Co., 649 F.2d 552 (8th Cir. 1981); Paxton v. Union National Bank, 519 F.Supp. 136 (E.D.Ark.1981) (also citing Kenyatta). The plaintiff must prove intent to discriminate on the part of the defendant. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976); Marshall v. Kirkland, 602 F.2d 1282, 1283 (8th Cir. 1979) (§ 1981 and § 1983). Back pay under § 1981 is not restricted to the 2-year limit which 42 U.S.C. § 2000e-5(g) imposes on Title VII actions, but is limited only by Arkansas’ 3-year statute of limitations. Johnson v. Railway Express Agency, Inc., supra. Pursuit of EEOC procedures required by Title VII does not toll the statute of limitations for § 1981 actions based on the same transactions. Id., 421 U.S. at 465-66, 95 S.Ct. at 1722-23; Greene v. Carter Carburetor Co., 532 F.2d 125 (8th Cir. 1976). The plaintiff in a § 1983 action must also prove discriminatory intent on the part of the defendant. Thompson v. School District of Omaha, 623 F.2d 46, 48 (8th Cir. 1980); Marshall v. Kirkland, supra, at 1288; Clark v. Mann, supra, at 1112. Municipalities and local governmental units are “persons acting under the color of law” within the meaning of § 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Exhaustion of administrative remedies is not a prerequisite to suit under § 1983. Simpson v. Weeks, 570 F.2d 240 (8th Cir. 1978), cert. denied, 443 U.S. 911, 99 S.Ct. 3101, 61 L.Ed.2d 876 (1979). In City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), the United States Supreme Court held that municipalities are immune from punitive damages under § 1983. The Court was persuaded that the purpose of deterrence would not be accomplished by the allowance of punitive damages against municipalities. Id. Actions under § 1985 involve the typical elements of constitutional discrimination claims (e.g., § 1981 or § 1983 claims), plus the additional element of a conspiracy on the part of the defendants to deprive the plaintiff of equal protection or privileges and immunities under the laws. A class-based, invidiously discriminatory intent is an essential element of a prima facie case under § 1985. McNally v. Pulitzer Publishing Co., 532 F.2d 69, 74 (8th Cir. 1976). In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the United States Supreme Court stated at 102, 91 S.Ct. at 1798: “The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” To prevent circumvention of EEOC conciliation procedures, the United States Supreme Court has held that deprivation of a right created by Title VII cannot be the basis of an action under § 1985. Great American Federal Savings and Loan Assn. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). The inclusion of a Fourteenth Amendment claim in the present case is redundant because the § 1981 and § 1983 causes of action are based on the Fourteenth Amendment. Washington v. Davis, supra. The requirement of a showing of discriminatory intent is constitutional and applicable to Fourteenth Amendment claims. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Discrimination claims brought under the revenue sharing statute are governed by Title VII standards and may include disparate treatment and/or disparate impact claims. United States v. City of Miami, 614 F.2d 1322, 1328-29, rehearing granted, 625 F.2d 1310 (5th Cir. 1980); United States v. City of Chicago, 549 F.2d 415 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). 31 U.S.C. § 1244 specifically provides for a private right of action in “an appropriate United States District Court or in a State Court of general jurisdiction.” The plaintiff must first file an administrative complaint with the Secretary of the Treasury or with an agency with which the Secretary has an agreement to investigate noncompliance under the Act. Ninety days after the administrative complaint is filed, administrative remedies are deemed to be exhausted and the plaintiff may institute a civil action. Relief available is “any temporary restraining order, preliminary or permanent injunction or other order, including the suspension, termination, or repayment of funds, or placing any further payments under this chapter in escrow pending the outcome of the litigation.” Discretionary attorney’s fees and costs are authorized. No provision is made for award of monetary damages to plaintiffs. Actions brought under the Crime Control Act are subject to the same standards applied to Title VII actions, including disparate impact claims. United States v. Commonwealth of Virginia, 620 F.2d 1018, 1022 (4th Cir.), cert. denied, 449 U.S. 1021, 101 S.Ct. 589, 66 L.Ed.2d 483 (1980); United States v. City of Miami, supra, at 1328-29; Brown v. New Haven Civil Service Bd., 474 F.Supp. 1256, 1264 (D.Conn.1979). 42 U.S.C.S. 3789d(c)(4)(A) explicitly provides for a private right of action by a “person aggrieved in an appropriate United States district court or in a State court of general jurisdiction.” The plaintiff must first file an administrative complaint with the Law Enforcement Assistance Administration or “any other administrative enforcement agency.” Sixty days after the administrative complaint is filed, or upon the determination of the merits of the complaint by the Administration or agency, whichever is earlier, administrative remedies are deemed to be exhausted and the plaintiff may institute a civil action. Other than a provision for attorney’s fees for a prevailing plaintiff, the Act does not spell out the remedies available to a private plaintiff but implies that injunctive relief is appropriate. There is no provision for monetary damages. Actions brought under Title VII may seek to remedy either disparate treatment or the results of a disparate impact upon a protected group. As indicated in the recent 8th Circuit case of Coble, et al., v. Hot Springs School District No. 6, et al., 682 F.2d 721 (8th Cir. 1982), acts of intentional discrimination for which race was a motivating factor must be proven under the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The court held in McDonnell Douglas that, first, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection” (at 802, 93 S.Ct. at 1824). Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. The complainant in McDonnell Douglas established a prima facie case by showing (1) that he belonged to a racial minority; (2) that he applied for and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. The United States Supreme Court explained this theory in Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977): “The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the United States Supreme Court clarified the employer’s burden to “articulare] a legitimate, nondiscriminatory reason” for a challenged action: “ * * * The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. [Footnote added] [Emphasis added] * * * * * * “The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credencé.” At 254, 255, 101 S.Ct. at 1094, 1095 (citations omitted). The current prevailing standard for the employer’s burden in responding to a prima facie disparate treatment case is that the employer must present admissible evidence “legally sufficient to justify a judgment for the defendant.” Thereafter, the employee has the burden of proving by a preponderance of the evidence that the proffered reason is merely a pretext for discrimination. The plaintiff must prove that race was a “motivating factor” for the action. Clark v. Mann, supra. The Eighth Circuit Court of Appeals addressed the matter in Johnson v. Bunny-Bread Co., 646 F.2d 1250, 1254 (8th Cir. 1981), in which case discriminatory discharges, job assignments and harassment were alleged and the court stated: “Clearly an employer bears no burden of persuading by a preponderance of the evidence that it was actually motivated by its proffered reason.” A number of plaintiffs’ witnesses testified about discrimination in the administration of discipline, awarding of transfers, and harassment of black officers by whites. The discipline and transfer claims will be discussed infra in the plaintiffs’ individual cases. However, the allegations of racial harassment will be dealt with at this point. Many incidents which happened prior to September 1975 have historical significance and serve as background information against which evidence in this case is viewed. The importance of such evidence has been weighed and considered by the Court. The City stipulated that it engaged in racial discrimination before the effective date of Title VII (1972). However, this admission is to be considered only to the extent legally permissible, and should not eclipse the efforts in recent years of the Department to end racial harassment. The Court also notes that some of the officers about whose actions plaintiffs have complained in the past are no longer employed by the LRPD, namely, Sergeant Pridgen, Sergeant Baer, Lieutenant Anderson, Sergeant Bill Bates, and Jim Harris. Their absence indicates an improved racial atmosphere at the LRPD. During the relevant time frame, the evidence is insufficient to establish a pattern of racial harassment at the LRPD. The plaintiffs have not shown that racial harassment is the “standard operating procedure” at the Department. In fact, most allegations are isolated events that cannot in and of themselves support a finding that a racially-biased atmosphere has permeated the LRPD since September 1975. Reprimands were issued to those involved in racial incidents and action taken to promptly correct the situation when the information came to the attention of the officers in charge. The Eighth Circuit Court of Appeals in Johnson v. Bunny Bread Co., supra, stated: “After a painstaking review of the transcript, we conclude that as a matter of law the racial slurs, if any, used at Bunny Bread did not violate Title VII. We find no steady barrage of opprobrious racial comment. The use, if any, of racial terms was infrequent, was limited to casual conversation among employees, and with possible rare exceptions was not directed toward appellants. ‘[Mjore than a few isolated incidents of harassment must have occurred. Racial comments that are merely part of casual conversation, are accidental, or are sporadic do not trigger Title VIPs sanctions.’ EEOC v. Murphy Motor Freight Lines, Inc., 488 F.Supp. 381, 384, 22 FEP Cases 892 (D.Minn.1980) (citations omitted). See Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88, 16 FEP Cases 462 (8th Cir. 1977). Such racial slurs as were present at Bunny Bread were largely the result of individual attitudes and relationships which, while certainly not to be condoned, simply do not amount to violations of Title VII.” It was held in Spearmon v. Southwestern Bell Telephone Co., 505 F.Supp. 761 (E.D. Mo.1980), aff’d, 662 F.2d 509 (1981), that a supervisor’s isolated act of racial harassment did not show a consistent plan or scheme by the defendant to harass the plaintiff. In Pouncy v. Prudential Insurance Co., 499 F.Supp. 427, 438 (S.D.Tex.1980), aff’d, 668 F.2d 795 (5th Cir. 1982), the court stated that the plaintiff must prove more than the mere occurrence of isolated “accidental” or sporadic discriminatory acts. Rather, he must establish by a preponderance of the evidence that racial discrimination was the defendant’s “standard operating procedure — the regular rather than the unusual practice.” Citing Teamsters v. United States, supra, 431 U.S. at 336, 97 S.Ct. at 1855. See, also, Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Mosley v. General Motors Corp., 497 F.Supp. 583 (E.D.Mo.1980). In the case of DeGrace v. Rumsfeld, 614 F.2d 796 (1st Cir. 1980), the court stated: “It may not always be within an employer’s power to guarantee an environment free from all bigotry. He cannot change the personal beliefs of his employees; he can let it be known, however, that racial harassment will not be tolerated, and he can take all reasonable measures to enforce this policy.” Where an employer had a policy against racial harassment and disciplined white supervisors that it knew had engaged in harassment, the isolated acts of harassment by supervisors were held insufficient to establish a pattern and practice of racial discrimination in Croker v. Boeing Co., supra. The LRPD proved that its practices come within the framework of the principles enunciated in Croker and DeGrace, supra, and violations of Title VII did not occur. Chief Simpson has taken affirmative action seriously at the LRPD and worked diligently to develop a good program. The Department has sponsored English classes for officers through the University of Arkansas at Little Rock, the classes being held on the LRPD premises. Classes in criminal evidence and criminal justice have also been offered. Julius Bryant and Jessie Briscoe are among those who have taken advantage of the courses, although Jessie Briscoe subsequently dropped out. The City of Little Rock pays the tuition for these classes. In early 1978, Chief Simpson first met with the members of the Black Police Officers Association [BPOA]. Several of the plaintiffs were present at this meeting. He discussed the most recent sergeant’s examination with them and pointed out that few blacks had taken and passed the examination, and that no one could help them unless they took and passed the examinations. He never promised them promotions if they did pass. However, the Chief discussed ways in which the blacks could prepare for the written and oral examinations and improve their chances of promotion. About two months later, Chief Simpson met with members of BPOA again and they discussed progress in their preparations for the tests. The Chief’s third meeting with the BPOA members was held about six weeks before the 1978 sergeant’s examination. At the conclusion of the meeting Johnnie Gilbert read a resolution that the BPOA had drafted to the effect that if the Chief did not guarantee that two blacks would be promoted to sergeant, they would sue him. When the members of BPOA threatened the Chief with a lawsuit, before the test had even been given, they disregarded the fact that as part of the City’s efforts to make the tests as objective as possible, the Chief had relinquished his “Chief’s points” and that he personally had no power whatever to influence promotions. However, he did assist them all he could in preparation. A major focus of the LRPD’s affirmative action effort is in the recruitment of minorities and women for the position of police officer. Recruiting trips have been made to Pine Bluff, Helena, Forrest City, and Little Rock where representatives of the Training Division and Personnel Department attempted to recruit minorities and women. These efforts included, inter alia, the placement of advertisements on the radio and the taking of applications. Grady Anthony attempted to recruit blacks at Chief Simpson’s direction in 1978, and he was instructed to put forth every effort to recruit minorities. Sergeant Anthony made trips to Philander Smith College and the University of Arkansas at Pine Bluff in May 1978. Anthony’s monthly report filed June 27, 1978, clearly demonstrates the difficulty in getting applicants to participate in the entrance examination process. Other reports reflect Anthony’s continued efforts and also continued problems. Chief Simpson initiated the “Cadet Program” because he thought that recruitment strength would lie in recruiting young people. Lieutenant Daley and his personnel attended career days, job fairs, colleges, high schools and the Urban League meetings to attract minority cadet applicants. Much of Sergeant Anthony’s recruitment efforts were also aimed at cadets. A number of the black cadets went on to become police officers. Julius Bryant and Finis Lowe are two examples. Defendants’ Exhibit No. 12 demonstrates the success of the cadet program in recruiting blacks. Page 1 of Defendants’ Exhibit 12 sets forth, by race, the number of cadets hired by the LRPD from January 1, 1974, through August 14, 1981. Page 2 of Defendants’ Exhibit 12 shows the number of whites and blacks who were hired as cadets and later went on to become police officers. The reason for the small numbers in very recent years is that cadets cannot become police officers until their 21st birthday. Cadets also now receive primary consideration for police officer vacancies. Since January 6, 1980, six blacks have been promoted from cadet to police officer. Defendants’ Exhibit 16 also demonstrates that in spite of the recent financial crunch, there were twenty-two blacks at the LRPD on January 8,1982. Mahlon Martin is presently the City Manager and is the Chief Executive Officer of the City. In the position of City Manager, Martin has direct control over the Chief of Police. Martin, who is black, has been involved in the City’s affirmative action efforts since 1969 (except for a brief period between November 1979 and July 1980). As a matter of fact, he went to work in 1969 as a minority recruiter for the police and fire departments. He testified that in his opinion the system has not worked perfectly but that tremendous progress was made in affirmative action and that the promotional system did not discriminate on a racial basis. (T. 508-^19) In light of Mr. Martin’s background and experience, his opinion is entitled to a great deal of weight. The LRPD uses what is known as “progressive discipline.” For minor infractions of the departmental rules and regulations, the discipline for a first violation is usually an oral counseling session by the officer’s supervisor. For the second such offense, a written reprimand, which is placed in the officer’s personnel file, is in order. Progressively more severe discipline in the form of 1 to 30 days’ suspension may follow for repeated violations. Officers have the right to submit a rebuttal to a written reprimand, which is also placed in his or her personnel file. When an officer is suspended, he must be notified in writing and he is given a right to appeal the action first to the CSC and later to the circuit court. Officers, both white and black, are often “counseled” by their supervisors. These counseling sessions are for the officer’s own good, to improve his or her job performance, and to let the officer know what areas need to be improved. Some take the criticism well; others do not. Counseling by the supervisors at the LRPD is a necessary part of the individual’s growth as a police officer and it is vital to the effective administration of the Department. The Court finds blacks were not discriminated against individually or as a group by the counseling sessions. The evidence shows that both blacks and whites have received similar disciplines for similar infractions. Some plaintiffs testified that they had been discriminated against in regard to discipline, but the defendants presented convincing testimony that discipline had been fairly administered. From the records, defendants’ expert witness, Dr. Robert F. Baker, analyzed the discipline system and found it to be fairly administered. Disparate impact may occur if a facially neutral employment practice, applied evenly to whites and blacks, bars a disparate number of blacks for consideration for promotion. Though it is necessary to prove intentional discrimination under a claim of disparate treatment, it is not required when pressing a disparate impact claim. Teamsters v. United States, 431 U.S. 324, 336, n. 15, 97 S.Ct. 1843, 1855, n. 15, 52 L.Ed.2d 396 (1976). In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the United States Supreme Court recognized that the thrust of the 1964 Civil Rights Act was directed to the consequences of employment practices in addition to or even apart from the motivation of the employer. Every individual employee is protected against practices that are fair in form but discriminatory in operation. Connecticut, et al. v. Winnie Teal, et al.,U.S. -, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). In Teal the court made the following statement: “ * * * The statute speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities. A disparate impact claim reflects the language of § 703(a)(2) and Congress’ basic objectives in enacting that statute: ‘to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.’ 401 U.S., at 429-430 [91 S.Ct. at 852-53] (emphasis added). When an employer uses a non-job-related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier has a significant adverse effect on minorities or women, then the applicant has been deprived of an employment opportunity ‘because of .. . race, color, religion, sex, or national origin.’ In other words, § 703(a)(2) prohibits discriminatory ‘artificial, arbitrary, and unnecessary barriers to employment,’ 401 U.S., at 431 [91 S.Ct. at 853] that ‘limit ... or classify ... applicants for employment ... in any way which would deprive or tend to deprive any individual of employment opportunities.’ (emphasis added.)” If disparate impact is established, the burden shifts to the employer to show that the practice has a “manifest relationship to the employment in question”; the “touchstone is business necessity.” Griggs v. Duke Power Co., supra, 401 U.S. at 431-32, 91 S.Ct. at 853-54; McCosh v. City of Grand Forks, 628 F.2d 1058, 1062 (8th Cir. 1980); Kirby v. Colony Furniture Co., 613 F.2d 696, 703 (8th Cir. 1980). Even in disparate impact cases, the plaintiff must prove that he is qualified for the job in question. Ramirez v. Hofheinz, 619 F.2d 442 (5th Cir. 1980). An employer may rebut a prima facie case of disparate impact by showing that a selection device (such as the promotional processes at issue herein) is valid under the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.5 (1979). As discussed infra, the LRPD did in fact demonstrate that its promotional processes and all the subparts for sergeant and lieutenant are valid under the Uniform Guidelines, rebutting any showing of disparate impact. Dr. Lee Hoffman, plaintiffs’ witness, was qualified by the Court as an expert statistician, specializing in the area of employment discrimination with a Ph.D. degree from Princeton. He also had several other degrees and considerable experience in his field. Dr. Hoffman performed multiple analyses of the material and data, the bulk of which covered the years 1975 through 1979, concerning the promotional system of the LRPD. He reviewed the material contained in all the joint exhibits and his analysis of this information was received as Plaintiffs’ Exhibit 1. This exhibit contained charts and statistical data in support of plaintiffs’ allegations. Dr. Hoffman testified inter alia that the affirmative action program for the LRPD was a failure; that there were violations of the Four-Fifths Rule in promotions and hiring ratios. He testified that a violation of the Four-Fifths Rule is not inconsistent with a failure to find statistically significant differences using the Chi Square Test because the Chi Square Test is not sensitive enough to reveal a statistically significant difference in outcome for samples of this size. Further, he testified that adverse impact is revealed in the promotion rate when compared with blacks versus whites under the “bottom line” concept as to whether or not an individual is promoted or fails to be promoted. Plaintiffs’ witness, Dr. James Lawrence Outtz, was qualified by the Court as an expert in industrial psychology. Dr. Outtz received his Bachelor of Arts degree in sociology from Northeast Louisiana University; he received a Master of Science degree in industrial psychology from Northeast Louisiana University; and he received a Ph.D. degree in industrial psychology from the University of Maryland in 1976. Dr. Outtz examined documents which described the components of the promotional process in the LRPD for the years 1975 through 1980. He testified that there was no demonstration by the City of Little Rock that the person who did well on the oral interview performed better on the job than someone who did not perform well on the oral interview; or that the use of seniority was justifiable procedure as a component part of the examination process. Furthermore, he criticized the use of “Chief’s points” in the rating system. It was also Dr. Outtz’s opinion that a proper job analysis was not performed in the LRPD examination and promotion procedure. Other witnesses, including three black attorneys, testified that the promotion procedure at the LRPD was unfair to blacks. The Court finds on the record as a whole that the plaintiffs have made a prima facie case on the issue of disparate impact. However, defendants in their rebuttal presentation have proved that many of plaintiffs’ statistics omitted relevant factors. Plaintiffs’ statistics have been reworked, adding pertinent factors, and defendants’ proof undermines plaintiffs’ claims as discussed infra. Dr. Robert Baker graduated from the University of Arkansas at Little Rock in 1966 with a Bachelor of Science degree in economics and he later received a Ph.D. degree from the University of Alabama. He has worked extensively in many areas relating to the analysis of employment practices. His credentials were impressive and Dr. Baker was recognized by the Court as an expert statistician and labor economist. Dr. Baker conducted an extensive review of material submitted to him for analysis. Among other issues, he analyzed hiring patterns, promotion issues, work force snapshots, and disciplinary issues. In conducting the promotion analysis, he attempted to discern any evidence of adverse impact on the several component parts of the sergeant tests for two separate testing dates. Moreover, he provided a detailed analysis of Plaintiffs’ Exhibit 1. Dr. Baker’s analyses were reflected in Defendants’ Exhibits 7A-1 through 7A-14 in their case in chief; Exhibits 7B-1 through 7B-29 were introduced in rebuttal to Plaintiffs’ Exhibit 1. Defendants’ Exhibit 7A-1 demonstrates that the relevant labor market of blacks in the Little Rock-North Little Rock Standard Metropolitan Statistical Area [SMSA], based upon 1970 census data, is 10.6%. This percentage represents blacks in the age category 20-44 with at least a high school education. Defendants’ Exhibits 7A-2 and 7A-3 provide a basis for the inference that the 10.6% figure used for the relevant labor market is a conservative one in that the 1970 census does not reflect those individuals residing in the SMSA who have been convicted of felonies. Were such information available, it would reduce the representation of blacks in the relevant labor market — this fact was acknowledged by plaintiffs’ expert. (T. 1108) The most relevant data available for this purpose were as of December 31, 1978, that 51.9% of the total prisoners in Arkansas correctional facilities were black. Defendants’ Exhibit 7A-3 shows that between the years 1975 and 1977 blacks constituted 54.5% to 58.4% of those individuals convicted of a felony in the SMSA (Pulaski and Saline Counties). A work force snapshot of defendants’ entry level police officer position for the years 1975 to October 8,1981, revealed no statistically significant difference between the percentage representation of blacks and the assumed relevant labor market percentage of 10.6%, except for the year 1975. (Defendants’ Exhibit 7A-4) This exhibit uses the same basic statistical methodology as that contained in Plaintiffs’ Exhibit 1, Table C. That is, it used an exact binomial distribution test, similar to that used in Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Defendants’ Exhibit 7A-4 demonstrates that although the total work force has remained relatively stable from 1975 to October 8, 1981, the black representation in the work force has increased from 6.3% to 7.2%, which is an increase of 14.3%. (See T. 1114 for similar computation through 1978.) In view of the fact that the inclusion of personnel actions (such as hiring) that occurred prior to 1972 (when Title VII was first applied to municipalities) in work force statistics will produce biased results (see United Air Lines v. Evans, supra), Dr. Baker prepared Defendants’ Exhibit 7A-5. In Exhibit 7A-5 the work force as it existed at mid-year 1975 was adjusted to exclude all persons, black or white, who had been hired prior to March 1972. This demonstrated the substantial difference between the black and white ratios for pre-Act hires and the black and white ratios for post-Act hires. The pre-Act group excluded was 4.1% black, while representation of blacks among the post-Act work force was 8.1% black. Once this adjustment has been made, there is no longer a statistically significant difference between the percentage representation of blacks in the relevant labor market (10.6%) and their representation in the LRPD (8.1%) for 1975. This adjustment was not done for any years other than 1975 because that was the only year in Exhibit 7A-4 where blacks were statistically significantly underrepresented. (T. 1116) An analysis of the hiring pattern of the LRPD for the years 1975 through October 8, 1981, showed that blacks as a percent of new hires were 10.5%, which is not a statistically significant difference from the relevant labor market of 10.6%. (Defendants’ Exhibit 7A-6) An analysis of the hiring practices of the LRPD by year from 1972 through October 8, 1981, failed to show any statistically significant underrepresentation of blacks among new hires. (Defendants’ Exhibit 7A-7) The only statistically significant result contained in this exhibit was 1981 where there was a statistically significant overrepresentation of blacks among new hires. (T. 1119) Although no blacks were hired in 1977 and 1978, the discrepancy between the numbers of black and white new hires in 1977 and 1978 is not statistically significant in either year. (Defendants’ Exhibit 7A-7) If the LRPD had hired one black in each year, the percentage representation of newly hired blacks would have been well over the 10.6% benchmark. (T. 1119) Defendants’ Exhibit 7A-8 demonstrates an absence of a so-called chilling effect upon black applicants for promotion to sergeant on October 1, 1978, and November 5, 1979. For example, 11 blacks were eligible to apply for promotion to sergeant on November 5, 1979, and 152 whites were eligible. The percentage of the blacks applying was 81.8% and that of whites was 40.8%. For this date there was a statistically significant overrepresentation of blacks among the applicants for sergeant. Defendants’ Exhibit 7A-9 sets forth a step-by-step analysis of the promotion process to sergeant on August 1, 1978, and November 5, 1979. The ratio of black to white applicants who were certified by the CSC was, in 1978, 85.6%, and in 1979 it was 229.7%. In neither year was there an adverse impact on blacks under the Four-Fifths Rule. It should be noted, however, that the certification rate of blacks in 1979 exceeded that of whites far in excess of that which would be tolerated under the Four-Fifths Rule. When the promotion rates of blacks and whites who were certified on the sergeant lists in 1978 and 1979 are compared for the August 1, 1978, test date, there appears to be a violation of the Four-Fifths Rule. However, an inference of adverse impact is not warranted.because if the one black who was certified had been promoted, the selection rate of blacks would have exceeded that of whites by more than the acceptable standard. The answer to question No. 21 of the Uniform Guidelines (44 F.R. 11996) provides that an inference of adverse impact cannot be made in situations such as this: “If the numbers of persons and the difference in selection rates are so small that it is likely that the difference could have occurred by chance, the Federal agencies will not assume the existence of adverse impact, in the absence of other evidence. In this example, the difference in selection rates is too small, given the small number of black applicants, to constitute adverse impact in the absence of other information ... If only one more black had been hired instead of a white the selection rate for blacks (20%) would be higher than that for whites (18.7%). Generally, it is inappropriate to require validity evidence or to take enforcement action where the number of persons and the difference in selection rates are so small that the selection of one different person for one job would shift the results from adverse impact against one group to a situation in which that group has a higher selection rate than the other group.” The above examples demonstrate the difficulties encountered in using the Four-Fifths Rule in making inferences about the existence of adverse impact when there is a “small number” problem. Dr. Lee Hoffman, plaintiffs’ expert witness, recognized the existence of this precise problem. (T. 1128-29) He also suggested in his deposition, as read into the record, that the existence of such a “small number” problem “necessitates using the statistics that are appropriate for small numbers.” When asked for examples of such appropriate tests, Dr. Hoffman responded, “Oh, such as Fisher’s Exact Probability Test.” Defendants’ expert agreed that this is the appropriate test to use, and the results of such a test for the sergeant test dates on August 1,1978, and November 5,1979, were introduced into the record. This analysis supplements the Four-Fifths Rule analysis and leads to the conclusion that in both years there is no adverse impact against blacks in either the certification or promotion results. Defendants’ expert, Dr. Baker, testified that this analysis was not subject to the so-called “repeater problem” because there was no aggregation of test results over the two years; he also státed he had conducted another statistical test, the Chi-Square with Yates’ correction, which led to the same conclusion. (T. 1131) From 1975 to 1981, blacks received 8.7% of the total number of promotions for all ranks at the LRPD (Defendants’ Exhibit 7A-11; T. 1134), even though they constituted only 6.5% of the work force. (Defendants’ Exhibit 7A-11) Additionally, a year-by-year analysis of the promotion data ■for all ranks showed no statistically significant difference between the promotion rates of blacks and whites, given the black representation in the work force. The record also reflects that the average number of days prior to promotion to sergeant for whites is 3,852 days, whereas the average number of days for blacks prior to receiving promotion is 2,912. This computation includes the acting sergeants. If acting sergeants are excluded from the analysis, the average number of days prior to promotion for whites exceeds that of blacks by approximately a factor of two, that is, 4,002 days (whites) compared to 2,042 days (blacks). The last two defendants’ exhibits presented in their case in chief, 7A-13 and 7A-14, compare, as of October 8, 1981, the percentage representation of blacks in two selected divisions and all other divisions. Defendants’ Exhibit 7A-13 demonstrates that there is no statistically significant underrepresentation of blacks in the Investigation and Apprehension Division compared to all other divisions, while Defendants’ Exhibit 7A-14 shows that blacks are not overrepresented in the Patrol Division as compared to all other divisions. Further, since these comparisons are as of a certain point in time, there is no possibility that the analysis could be subject to the so-called “repeater problem” which plaintiffs have suggested. Defendants’ Exhibits 7B-1 and 7B-2 are similar to Plaintiffs’ Exhibit 1, Tables A and B. Both exhibits reflect the assumption that within the past decade the relevant labor market for blacks between the ages of 20-44 and who have at least a high school education grew from 10.6% in 1970 to 12.1% in 1980. This reflects the assumption that black representation in this age group with this educational attainment grew at the same rate during the last decade as that of the black general population in the SMSA. Thus, based upon these two exhibits, defendants’ expert proceeded to analyze how this change in the relevant labor market affected earlier analyses. (Defendants’ Exhibits 7B-3 through 7B-7) The first of these exhibits shows that the assumed relevant labor market of 12.1% does result in a statistically significant underrepresentation of blacks in the police officer entry position for all years from 1975 through October 8, 1981. (Defendants’ Exhibit 7B-3) However, removing the effects of pre-Act hiring decisions from the 1975 work force data (Defendants’ Exhibit 7B-4), and from the 1981 work force data (Defendants’ Exhibit 7B-5), shows that when the analysis is properly adjusted, there is not a statistically significant deficit of blacks in either year. These adjustments were not made for 1976 through 1980 since the adjustment for 1981 would represent the “worst possible case” approach for defendant. Consequently, in each of the intervening years, when the data are properly adjusted to exclude pre1972 hiring actions, there would not have been a statistically significant underrepresentation of blacks. The assumption of the 12.1% relevant labor market figure is conservative since it does not take into consideration the crime figures. Using this labor market percentage adjusted to reflect the 1980 census data, there is no statistically significant underrepresentation of blacks among persons hired in the period 1972 to October 8, 1981. When acting sergeants are included in the analysis of the Four-Fifths Rule to sergeant’s data, there is no adverse impact for any step in the selection process. For example, between 1975 and 1979, of the percentage of those blacks who took the sergeant’s test, there were 11.1% promoted, whereas for whites the comparable figure was 8.1% according to defendants’ exhibits. In fact, the exhibit offers support for the conclusions stated by plaintiffs’ expert in his letter of December 18, 1981: “An inspection of the data for sergeant promotion actions for the period covered in the table above does not show significant racial differences. This suggests that it is possible for promotion of police officers to sergeant to be administered in an even-handed manner.” If the number of blacks promoted in the 1975-1979 period had been two, the selection rate for blacks would have exceeded that of whites; that is, the selection rate of blacks would have been 20.0% compared to 17.1% for whites. A generally used statistical test, the Chi Square Test, proves that the difference between the hire rates of blacks and whites is not statistically significant. (T. 1171) Defendants’ expert, Dr. Baker, testified that the difference in hire rates for blacks and whites could be attributable to a number of factors such as chance, the background check, and failure to complete the application process. Plaintiffs’ expert made no attempt to determine the factors which might account for the difference in the hire rates for blacks and whites and explicitly stated that he had no knowledge of the number of applicants who were not hired because of felony convictions, lack of a high school education, or failure to meet the age requirements. (T. 386) Plaintiffs assert that the LRPD improved its practices after this suit was filed in September 1978. An analysis of the black representation among the police officer level in the years 1975 through 1978 reveals no adverse impact in promotions using either the 1970 census data, or the 1980 census, when the effects of pre-Title VII hiring decisions are excluded as they should be. (Defendants’ Exhibits 7A-5, 7B-4, 7B-5) It is also noted that defendants’ hire rates meet required standards for the years 1975-1978 under either the 1970 or 1980 census. (Defendants’ Exhibits 7A-7 and 7B-7) To the extent that the defendants’ hiring and promotions have included even more blacks since 1978, they should be commended. Although Dr. Baker’s analyses were made prior to the United States Supreme Court’s decision in Connecticut v. Teal, supra, the case is distinguishable from the case at bar and would not affect his conclusions. In Teal, the plaintiff in a Title VII case established a prima facie case of racial discrimination by establishing that a component part of a selection process produced a disparate impact against blacks, even though there was no “bottom line” impact against blacks. The only part of the LRPD promotional examinations for sergeant and lieutenant that serves as a pass/fail barrier is the written test, and it has no adverse impact on blacks. For example, on the 1978 lieutenant’s examination the black (Grady Anthony) made a score of 88.00; the white average score was 85.86. On the 1979 lieutenant’s written examination, Grady Anthony made a score of 82.00; the average score for whites was 90.44. On the 1978 sergeant’s written examination, the black average score was 87.83; the white average score was 87.61. On the 1979 sergeant’s written examination, the blacks’ average score was 86.66; the whites’ average score was 82.29. The 1982 lieutenant process is different because of a requirement in the consent decree entered in the Best and Thomas v. Booth state court case (Defendants’ Exhibit 9), the oral examination (with no cutoff) was given first. The written examination was given second and it did have a passing score of 76. Grady Anthony, the only black, made 64.5 (Defendants’ Exhibit A) However, neither test operated as a barrier; he was allowed to participate in both examinations. Other analyses also reflect there is no adverse impact in any of the subparts of the promotional process. The seniority ratings are not subject to the adverse impact theory because they have been specifically exempt in Section 703(h) of Title VII, and the LRPD seniority system was not in any way racially biased or slanted. See Pullman-Standard v. Swint, -U.S. -, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). On the 1979 lieutenant promotional process, the average oral score for whites was 64.51; Grady Anthony’s was 60.77; the average composite score for whites was 72.17; Grady Anthony’s was 67.76. (Joint Exhibit 21) On the 1978 sergeant promotional process, the whites’ average oral score was 54.-29; the blacks’ average oral score was 54.-05; the whites’ average service rating was 90.43; the blacks’ average service rating was 89.94; the whites’ average composite score was 75.37; the blacks’ average composite score was 74.61. (Joint Exhibit 16) On the 1979 sergeant promotional process, the whites’ average oral score was 63.-97; the blacks’ average oral score was 65.-45; the whites’ average composite score was 74.79; the blacks’ average composite score was 77.10. (Joint Exhibit 17) Regardless of race, it generally takes a long time to be promoted to sergeant, if ever, at the LRPD. For every plaintiff herein who feels he should have been promoted, there are many whites in the same position. The Department’s seniority list as of January 8,1982 (Defendants’ Exhibit 16), indicates that H. L. Callanen, R. A. Walton, W. L. Essley, Earl Hutchins, Dwight Marrow, and J. C. Hester have all been with the Department over 20 years but have never been promoted. All are white. Lowell Capoot, Adron Agee, Rex Hargis, James Seats, Del