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RICHARDSON v. CIVIL SERV. COMMN. OF NEW YORK

July 27, 1976

Susan RICHARDSON et al., Plaintiffs,
v.
The CIVIL SERVICE COMMISSION OF the STATE OF NEW YORK et al., Defendants



The opinion of the court was delivered by: TENNEY

MEMORANDUM

 TENNEY, District Judge.

 Plaintiffs seek an order of this Court granting costs including reasonable attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k) *fn1" in an amount to be hereinafter determined. For the reasons set forth below, the motion is granted.

 This employment discrimination action was commenced by the filing of a complaint on May 8, 1972, under 42 U.S.C. §§ 1981 and 1983 and the Fifth and Fourteenth Amendments to the Constitution of the United States, Articles V and VI of the New York State Constitution and § 50(6) of the New York State Civil Service Law.

 Plaintiffs Susan Richardson, Melvin Jackson, Nina Sims, Mabel W. Fisher, Loretta Y. Napier, Vera Birdsong and Miriam Harper, black Narcotic Correction Officers, aspired to the position of Narcotic Rehabilitation Counselor, but were ineligible to take the written civil service examination therefor because they did not possess the requisite bachelor's degrees. Plaintiff Nancy Walcott, a white woman, who had been employed as a provisional Narcotic Rehabilitation Counselor but failed the written examination required for permanent appointment. Plaintiffs alleged that they had each in fact been performing all the functions of Narcotic Rehabilitation Counselor in a satisfactory manner. The complaint alleged that the educational requirements and examination had a disparate adverse impact upon blacks and were not related to the ability to perform the job of Narcotic Rehabilitation Counselor. In their prayer for relief, plaintiffs sought, inter alia, injunctive relief against the use of non-job-related educational requirements and unvalidated examinations for the position of Narcotic Rehabilitation Counselor and costs, including reasonable attorneys' fees.

 By memorandum opinion dated December 26, 1973, this Court denied, in all but one minor respect, defendants' motion to dismiss the complaint.

 By stipulation approved by this Court on February 8, 1974, the complaint was amended to allege violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. A substituted and amended complaint was filed on February 13, 1974, pursuant to said stipulation.

 On May 6, 1975, this Court entered a Stipulation and Order of Settlement consented to by the parties which established a procedure by which any employee of the State of New York Drug Abuse Control Commission (formerly the Narcotic Addiction Control Commission) who had held the position of Narcotic Correction Officer for three years, one year of which had included regular and substantial participation in the drug abuse counseling program, could on the basis of his or her training and experience become eligible for appointment to the position of Drug Abuse Rehabilitation Counselor (formerly Narcotic Rehabilitation Counselor). (Stipulation and Order of Settlement, paras. 4 and 5). Pursuant to said procedure, all of the named plaintiffs, with the exception of Nancy Walcott, who had obtained employment elsewhere, were on or about March 1976 appointed to the Counselor position. They were not required to have a bachelor's degree or to take a written examination.

 The entry of the Stipulation and Order of Settlement was "without prejudice for applications to the Court for attorneys' fees." (Id., P 9).

 There are no questions of fact presented and the only question before the Court is whether the plaintiffs are entitled to the relief sought as a matter of law.

 42 U.S.C. § 2000e-5(k) provides:

 
"In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person."

 Defendants oppose the instant application on the basis: (1) that plaintiffs are not prevailing parties within the meaning of Rule 54(d) of the Federal Rules of Civil Procedure, (2) that an award of attorneys' fees against defendant state officers and agencies is barred by the Eleventh Amendment to the United States Constitution, (3) that plaintiffs are not prevailing parties within the meaning of 42 U.S.C. § 2000e-5(k), and (4) that even if it be adjudged that plaintiffs are prevailing parties within the meaning of the above-mentioned statute, they should receive no award since they did not, in fact, pay a fee.

 The Rule 54 argument raised by defendants is without merit. The Rule begins with the wording "[except] when express provision therefor is made either in a statute of the United States" and then goes on to set forth the grounds for the granting of costs. Clearly, in this instance there is a statute of the United States which will ...


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