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CARR v. THOMPSON

October 17, 1974

Thomas CARR, Plaintiff,
v.
James W. THOMPSON, Chairman, Municipal Civil Service Commission, and the Municipal Civil Service Commission, Defendants



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 This is an action challenging the constitutionality of defendants' refusal to allow plaintiff to take a Civil Service examination for employment as a sewer worker for the City of Niagara Falls, New York. The complaint in this case was filed on February 26, 1973 and the case was assigned to Judge John O. Henderson. On March 5, 1973 plaintiff filed a motion for a preliminary injunction. From March 12, 1973, the return date of that motion for a preliminary injunction, until sometime in July, the parties were engaged in attempts to settle this lawsuit. When it became apparent that it could not be settled, plaintiff served interrogatories on defendants and, on August 27, 1973, renewed their motion for a preliminary injunction and also moved for an order directing defendants to respond to plaintiff's interrogatories. On the 17th of September, 1973 that motion was heard by Judge Henderson. At that time the parties agreed to a thirty-day stay of filling the sewer worker position. Defendants were also to begin work on answering plaintiff's interrogatories. On the day set for the hearing on the motion for a preliminary injunction, November 26, 1973, no one appeared on behalf of the City of Niagara Falls and, upon motion of the plaintiff, a default judgment was granted. On December 3, 1973 the defendants moved to vacate and set aside the default judgment and, on December 17, 1973, the court vacated the default judgment and ordered the parties to file briefs on the question of the preliminary injunction. This matter was transferred to this court after Judge Henderson's death in February 1974.

 The facts in this case are not in dispute. On August 12, 1972 the Municipal Civil Service Commission of the City of Niagara Falls gave official notice of an examination to be held for the position of Assistant Filter Operator for the City of Niagara Falls. The examination was to be given on October 21, 1972. The job of Assistant Filter Operator primarily deals with water purification and treatment for the City of Niagara Falls. On August 28, 1972 the plaintiff, Thomas Carr, filed an application for the examination and, in response to Question No. 9 on the application which inquired if the applicant had ever been convicted of a legal offense, he answered "yes." The plaintiff acknowledged convictions for petit larceny, disorderly conduct, escaping arrest, and driving while intoxicated, which was reduced to impaired driving. Upon receipt of plaintiff's application the defendant, Municipal Civil Service Commission, obtained a police record check of plaintiff. *fn1" The police record indicated that plaintiff was not involved in any court action as of the date of the report.

 Pursuant to Article 2, Section 20 of the Civil Service Law of the State of New York, the Niagara Falls Municipal Civil Service Commission has prescribed rules for appointments and promotions in civil service positions. Rule IX of the Niagara Falls Municipal Civil Service Commission is as follows:

 
DISQUALIFICATION
 
1. Good moral character and habits and a satisfactory reputation shall be requirements for appointment to any position subject to these rules. Any applicant who is found to lack such requirements shall be disqualified for examination or, after examination, for certification and appointment.
 
2. A record of disrespect for the requirements and processes of law, including repeated traffic offenses or disregard of summonses for traffic offenses, may be grounds for disqualification for examination or, after examination, for certification and appointment.
 
3. The burden of establishing his qualifications to the satisfaction of the commission shall be upon the applicant. Any applicant who refuses to permit the commission to investigate matters necessary for the verification of his qualifications or who otherwise hampers, impedes or fails to cooperate with the commission in such investigation shall be disqualified for examination or, after examination, for certification and appointment.

 Pursuant to this rule and based upon the information contained in the police record, the Niagara Falls Municipal Civil Service Commission disqualified plaintiff from taking the examination for Assistant Filter Operator. On October 13, 1972 the plaintiff was notified by Frank C. Maietta, the Secretary of the Municipal Civil Service Commission, by letter, of his disqualification from taking the examination. The parties have agreed that the sole reasons for plaintiff's disqualification from taking the examination were plaintiff's police record and defendants' interpretation of Rule IX of the Niagara Falls Municipal Civil Service Commission Rules.

 Plaintiff has alleged jurisdiction in this action under 28 U.S.C. §§ 1331, 1343 (3), (4) and 2201, and has alleged that it arises under the Civil Rights Act, 42 U.S.C. § 1983, and the Constitution of the United States, in particular but not limited to the eighth and fourteenth amendments.

 The defendants have not made a motion to dismiss based on improper jurisdiction, but they argue in their brief that plaintiff could have proceeded by way of an Article 78 proceeding pursuant to the New York Civil Practice Law and Rules, and that jurisdiction of this action by this court is improper. In construing the Civil Rights Act, the Supreme Court has held that a federal remedy under the Civil Rights Act is supplementary to any remedy that may exist under state law, and that it is not necessary to seek the state remedy before invoking the federal one. See Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971). Therefore, the court finds that jurisdiction is proper.

 In considering a motion for a preliminary injunction, the court must look for two elements. First, there must be a showing of probable success on the merits and, secondly, there must be proof of irreparable harm to those seeking the injunction. Gulf and Western Industries v. Great Atlantic and Pacific Tea Co., Inc., 476 F.2d 687 (2d Cir. 1973).

 To determine whether a preliminary injunction should issue, an analysis of plaintiff's police record follows.

 Plaintiff's police record contains fourteen entries. Nine of these entries are summonses for traffic violations. Five of these violations were dismissed and, of the four remaining, two were for speeding ($15 and $25 fines), one was for a red light ($10 fine), and one was for driving while intoxicated, which was reduced ...


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