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December 12, 1968

Ronald B. BRASS, Frederick Teper, Plaintiffs,
Solomon HOBERMAN, Director of Personnel, New York City Department of Personnel and Chairman, New York City Civil Service Commission, Milton Samorodin, James Smith, Members, New York City Civil Service Commission, Defendants

The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

 Plaintiffs have moved, pursuant to Fed.R.Civ.P. 65(a), for a preliminary injunction (1) to restrain defendants from declaring plaintiffs ineligible for civil service employment as caseworkers with the New York City Department of Social Services and from removing their names from the eligible lists and (2) to direct defendants to certify that plaintiffs are eligible for such employment.

 Jurisdiction is based on 28 U.S.C. § 1343(3), (4) (1964), plaintiffs claiming that they have been found "not qualified" for the position of caseworker on the basis of an unconstitutionally discriminatory policy and by means of procedures that do not measure up to the standards imposed by the due process clause of the fourteenth amendment.

 The Court declines at this time to issue the preliminary injunction sought but, pursuant to Fed.R.Civ.P. 65(a)(2), orders that the trial on the merits be advanced, as detailed below. This opinion contains the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).

 Administrative Proceedings concerning Brass

 Plaintiff Brass applied for employment as a caseworker. On February 24, 1967, he was advised that he had passed the written and medical examinations administered to him, in connection with his application, on February 7, 1967.

 In June, 1967, Brass was requested to appear to take a special medical examination to be administered June 20, 1967.

 On July 6, 1967, he was sent a notice of proposed disqualification based on his failure to meet the medical requirements, "as a result of the special medical exam on 6/20/67." Thereafter Brass corresponded with the Department of Personnel, in the main protesting his disqualification on the basis of the special examination of June 20, 1967, and the failure to indicate why he was medically "not qualified".

 On August 1, 1967, the Department of Personnel finalized the proposed disqualification and marked Brass disqualified for "failure to meet medical requirements".

 Brass sent a letter dated August 6, 1967 to the Civil Service Commission headed: "Appeal of Disqualification By City Personnel Director". His grounds of appeal were that he had been found medically qualified on February 7, 1967; he was still medically qualified; he had been discriminated against in being required to undergo a special reexamination; and no medical examination in fact ever took place on June 20, 1967. Brass also protested the absence of specifications of the medical requirements, failure to comply with which had resulted in his disqualification.

 On August 14, 1967, the Commission, answering Brass' letter through its secretary, informed him that his appeal could not be considered unless it was accompanied by "independent competent medical evidence as to your qualification."

 On August 15, 1967, defendant Solomon Hoberman, City Personnel Director and Chairman of the City Civil Service Commission wrote Brass as follows:

"The Department of Personnel records indicate that you were marked not qualified for this position by our psychiatrist because of a history of homosexuality.
"It is our policy to disqualify homosexuals for employment as Case Workers, Hospital Care Investigators, and Children's Counselors."

 This policy statement of August 15, 1967 was repeated by Hoberman on September 5, 1967, in a letter to Brass, ostensibly in reply to a letter Brass had addressed to the Mayor.

 On August 20, 1967, Brass submitted a revised appeal, asking that it supersede his appeal-letter dated August 6, 1967. This revised appeal was directed to the disqualification for the alleged history of homosexuality. Brass argued that such disqualification was discriminatory, arbitrary, capricious, and unreasonable because homosexuality bears no relationship to job performance, competence, suitability, or fitness. Brass also contended that, because the history of homosexuality was apparently based on charges made over four years prior thereto, those charges could not serve as the basis for a determination of present unsuitability. In addition, Brass took the position that mere charges did not prove that he was homosexual and that the City, not he, must sustain the burden of proof.

 On September 8, 1967, the secretary of the Civil Service Commission wrote Brass regarding his revised appeal of August 20, 1967, and reiterated that the appeal could not be entertained unless accompanied by "recent independent competent medical evidence" as to Brass' qualifications. Brass responded that he was appealing a policy question, not a medical one; and, thus, medical evidence was immaterial. Brass further stated that, even if the question of his alleged homosexuality was relevant, insofar as it is ...

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