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April 7, 1975

THE CITY OF NEW YORK et al., Defendants

The opinion of the court was delivered by: KNAPP



 Plaintiff, a part-time employee of station WNYE/TV -- a television station owned and operated by the New York City Board of Education -- has filed this civil rights action *fn1" alleging that he has been denied equal employment opportunity. He contends that the City Department of Personnel rejected his application for civil service appointment to the position of Program Production Assistant, Provisional because he is Puerto Rican, and not because, as defendants contend, he lacked experience. In his prayer for relief, plaintiff seeks a declaration that defendants' refusal to hire him constituted a denial to plaintiff of his right to equal employment opportunity on the grounds of race, color or national origin, and an order instating him to the position of Program Production Assistant effective the date of his rejection, together with back pay and benefits. The action is presently before this Court on plaintiff's motion for a preliminary injunction, in which he seeks the ultimate relief requested in his complaint.

 Since September, 1973, plaintiff has been performing on an unofficial, *fn2" a part-time basis the duties of the position for which he now seeks provisional appointment on a full-time basis. When that position became vacant in the Fall of 1974, after the resignation of the incumbent, plaintiff submitted an application to replace him. In support of his application, he submitted, in addition to his resume, a letter from defendant Suffern -- the Director of Broadcasting at WNYE/TV -- stating that plaintiff was "amply qualified" for the position. Despite his employer's satisfaction with his education, experience and performance on the job, the City Department of Personnel rejected plaintiff's application on the ground that he "[lacked] [the] required experience". The minimum requirements for the job -- as established by the City Civil Service Commission -- are stated in the alternative and are as follows:

1. A B.A. degree from an accredited four year college, including or supplemented by at least 18 credits in television broadcasting; or
2. A high school diploma, plus two years experience in television broadcasting; or
3. A "satisfactory equivalent"

 Since plaintiff apparently failed to meet any of these criteria to the satisfaction of the Department of Personnel *fn3" -- he has completed only 3 1/2 years of college, has taken no courses in television broadcasting and does not have two years experience -- his application was rejected. According to an affidavit submitted by defendants and signed by an Assistant Director in the Department of Personnel, plaintiff would need "one additional year of full-time experience" before he would meet the official minimum requirements.

 This action was initially brought on by an order to show cause why a temporary restraining order and a preliminary injunction should not issue instating plaintiff to the position in question. A hearing was not requested, plaintiff choosing instead to rely exclusively on the rather conclusory allegations of discrimination in his complaint. Having no facts before me from which even an inference of discrimination could be drawn, I denied the application, on condition that should defendants hire someone else in the interim, that person be informed of the pendency of this lawsuit and of the possibility of being "bumped" should I ultimately determine that plaintiff had been unlawfully discriminated against. Satisfied with that arrangement, plaintiff withdrew his application for the TRO and the parties commenced settlement negotiations, several times adjourning the return date of plaintiff's motion for a preliminary injunction. These negotiations, however, proved fruitless and the motion was set down for argument. Contrary to the customary practice in employment discrimination cases, no evidentiary hearing was requested.

 In order to meet his burden on a motion for preliminary injunction, plaintiff must demonstrate a likelihood of success on the merits and of irreparable injury should the injunction be denied. Chance v. Board of Education (2d Cir. 1972) 458 F.2d 1167, Hamilton Watch Co. v. Benrus Watch Co. (2d Cir. 1953) 206 F.2d 738, Rios v. Enterprise Association of Steamfitters (S.D.N.Y. 1971) 326 F. Supp. 198. In the context of employment discrimination cases, if the plaintiff can establish a prima facie case of discrimination, the burden then shifts to the defendant employer "to articulate some legitimate, non-discriminatory reason for [plaintiff's] rejection". McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-3, 36 L. Ed. 2d 668, 93 S. Ct. 1817. The Supreme Court has recognized essentially two ways in which a plaintiff in an employment discrimination action may seek to make out a prima facie case. *fn4" The first -- and by far the most frequently utilized -- approach was outlined in great detail in Griggs v. Duke Power Co. (1971) 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158. Essentially, if the plaintiff can demonstrate that the criteria utilized by the employer to determine job eligibility -- whether they be in the nature of educational requirements, test results or physical characteristics, to name a few -- "operate to exclude" minority group members, despite the lack of discriminatory intent, then the burden shifts to the employer to justify those criteria by demonstrating that they are substantially related to successful job performance. Although this burden to show job-relatedness -- or "business necessity" *fn5" -- is a "heavy" *fn6" one, it can be discharged by the employer if he can come forward "with convincing facts establishing a fit between the qualification and the job". *fn7" The second standard for measuring employment discrimination was announced in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817. Under the Green approach, the complainant may establish a prima facie case of racial discrimination 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 ...

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