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GUARDIANS ASSN. OF NEW YORK CITY POLICE DEPT.

March 17, 1977

Guardians Association of New York City Police Department, Inc., et al., Plaintiffs
v.
Civil Service Commission of the City of New York et al., Defendants


Carter, D.J.


The opinion of the court was delivered by: CARTER

CARTER, D.J.:

Statement of the Case

 This action challenges the legality of the hiring and firing practices of the New York City Police Department ("NYCPD"). Jurisdiction is based on Title 28 U.S.C. §§ 1331 and 1343(3), (4) and 42 U.S.C. §§ 1981, 1983 and 2000e-5(f)(3). *fn1" Plaintiffs allege that defendants' practices violate the Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.2 Plaintiffs have moved for a preliminary injunction restraining the NYCPD from firing or recalling any police officers until seniority lists are reordered to accord plaintiffs the seniority they would have had but for defendants' discriminatory practices. Plaintiffs also seek certification of a class consisting of black and Hispanic officers who were subject to layoff in June, 1975. For the reasons set forth below, plaintiffs' motions are granted. *fn3"

 Procedural Background

 This action was commenced May 3, 1976, by an order to show cause seeking a temporary restraining order and a preliminary injunction. The application for a temporary restraining order was denied. A hearing on the application for a preliminary injunction was held on May 12, 1976. At the hearing, defendants moved to dismiss the complaint on the grounds of statute of limitations, laches, and lack of subject matter jurisdiction. Their motion was denied, and the hearing commenced. It continued intermittently until July 29, 1976.

 Having heard that the NYCPD intended to recall previously laid off police officers, plaintiffs in the early part of July renewed their application for a temporary restraining order barring such recall pending determination of the rights of the discharged black and Hispanic police officers in this litigation. The court denied this application on the basis of an affidavit of Michael J. Codd, Police Commissioner, which recited that all recalled officers were to be notified that their rights to employment were subject to any determination that might be made in this pending litigation.

 Factual Background

 Plaintiffs are black and Hispanic police officers on layoff since June, 1975. They allege that the NYCPD's use of its pre-1973 entry level examinations and its former requirement that all police officers be 67 inches or taller discriminated against them, and that but for this discrimination they would have accrued sufficient seniority to withstand being fired. Defendants are the NYCPD, the New York City Department of Personnel, whose staff prepare and administer the examinations, and the Civil Service Commission, which prescribes rules for administering the civil service laws.

 Because of the fiscal crisis affecting the entire city, the NYCPD was required to cut its budget by three percent. As a result, 2,864 police officers were discharged in June, 1975, pursuant to the last-hired, first-fired seniority system existing in the NYCPD. Plaintiffs complain that these terminations, 21.5 percent of which were minorities, *fn4" perpetuate defendants' past discriminatory practices and violate the strictures of the Fourteenth Amendment, Title VII and 42 U.S.C. §§ 1981 and 1983.

 Class Action Certification

 For class action treatment to be appropriate, all the requirements of subdivision (a), and one of the alternative requirements of subdivision (b), of Rule 23, Fed. R. Civ. P. must be satisfied. *fn5" There is little doubt that plaintiffs have met the first three requirements of Rule 23(a).

 1. The Numerosity Requirement.

 The proposed class consists of all black and Hispanic New York City policemen currently on layoff who would not have been furloughed but for defendants' allegedly discriminatory employment practices. Plaintiffs make the uncontroverted allegation that the class numbers between 200 and 600 blacks and Hispanics. Given these figures, the numerosity requirement is clearly met. Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972); Ste. Marie v. Eastern R.R. Ass'n, 72 F.R.D. 443 (S.D.N.Y.1976) (Carter, J.).

 2. Common Questions of Law or Fact.

 Race discrimination cases, by their very nature, involve behavior that affects a group of people. Rodriguez v. East Texas Motor Freight Co., 505 F.2d 40, 50 (5th Cir. 1974); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). Plaintiffs here claim that defendants' practice of discharging police officers based on their seniority violates Title VII and 42 U.S.C. §§ 1981 and 1983 by perpetuating discrimination effected by the use of racially biased entry level examinations and a discriminatory height requirement. It is clear that these claims:

 
not only can, but most appropriately should be decided as a class action since "the evil sought to be ended is discrimination on the basis of a class characteristic, i.e., race, sex, religion, or national origin." . . .

 Hecht v. Cooperative for Am. Relief Everywhere, Inc., 351 F. Supp. 305, 312 (S.D.N.Y. 1972) (Lasker, J.) (citations omitted).

 3. Representative Parties' Claims Typical of the Claims of the Class.

 The claims of the representative parties are typical of most of the class. The individual plaintiffs claim to be on layoff either as a result of defendants' discriminatory use of entry level examinations or as a result of defendants' discriminatory height requirement. Plaintiff organizations include members who have been victims of both these practices. Together, their claims range over the totality of defendants' challenged employment practices. Thus, the typicality standard is met.

 4. Fair and Adequate Protection of the Class' Interests.

 In Mersay v. First Rep. Corp. of Am., 43 F.R.D. 465, 469 (S.D.N.Y. 1968) Judge Metzner held that:

 
the requirement of adequate representation comprises only two elements: (a) that the interests of the representative party must coincide with those of the class; and (b) that the representative party and his attorney can be expected to prosecute the action vigorously. Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968).

 Defendants presumably contest the adequacy of plaintiffs' representation by contending that in Guardians Ass'n of New York City Police Dep't v. Civil Serv. Comm'n, 72 Civ. 928 (S.D.N.Y., July 16, 1973) (Ryan, J.) ("Guardians I"), a suit brought under 42 U.S.C. § 1983, plaintiff associations took a position incompatible with the one taken here. Defendants argue that in the previous action these associations sought a permanent injunction against the use of lists predating 1972 for appointments to the Police Department. Therefore, it is claimed, since the individual plaintiffs in the instant case obtained appointments from pre-1972 lists "precisely because the relief sought by these associations was denied in Guardians I. . . [the] associations represented interests directly adverse to [those of] the individual plaintiffs herein." Def's. Post-Trial Memo. at 5. This argument is patently without merit.

 In the earlier suit, plaintiff sought to enjoin the use of pre-1972 officer eligibility lists out of the fear that a disproportionately low number of minorities would be hired due to the discriminatory impact of the examinations from which the lists were prepared. This is made clear from plaintiffs' alternative request to establish a quota of one minority appointment for every white appointment. The relief sought was denied since it appeared that the lists were being exhausted and all the plaintiffs would be hired.

 The premise of that suit is consistent with that asserted here. In both cases, the thrust of plaintiffs' attack is directed toward the use of employment requirements which discriminate against minorities. Accordingly, I am convinced that the interests of the plaintiff associations coincide with those of the class, and based on the extensive work already conducted by plaintiffs, they can be expected to prosecute the action vigorously.

 Defendants also argue that plaintiff Santos could not have been appointed as a police officer until he was a United States citizen and that he did not become a citizen until the time of a hiring freeze; therefore he is unable to show that he could have been appointed earlier than he actually was. Plaintiff Perez, defendants assert, challenges the height requirement but has never failed a police officer examination and does not claim the written examination discriminated against him. To the extent these assertions suggest inadequate representation or atypicality of claims, they pose no bar to certification of the class. They may present individual questions which will determine each individual's right to recovery, but Rule 23 gives the court the power to consider individualized problems if and when they appear. Ste. Marie v. Eastern R.R. Ass'n, supra. In any event, since plaintiff organizations are suitable representatives, the potential disqualification of Santos and Perez poses no threat to the viability of this class suit.

 5. Action or Inaction on Grounds Generally Applicable to Class -- Appropriateness of Injunctive or Declaratory Relief (Rule 23(b)(2)).

 Plaintiffs have asked for declaratory and injunctive relief that would prevent defendants from perpetuating allegedly discriminatory hiring practices. Plaintiffs also seek damages. This situation is well-suited for class action treatment under subdivision (b)(2) of Fed. R. Civ. P. 23, since a finding that defendants' practices are unlawful will necessarily affect all minority police officers. See Advisory Committee Notes to Fed. R. Civ. P. 23, and cases cited therein; Leisner v. New York Tel. Co., 358 F. Supp. 359, 373 (S.D.N.Y. 1973); Rosario v. New York Times, 10 E.P.D. P 10,450 p. 5944 (S.D.N.Y. 1975). A claim for damages may properly be considered in a (b)(2) action as long as the monetary relief is not predominant. Almenares v. Wyman, 334 F. Supp. 512, 519 (S.D.N.Y.), modified 453 F.2d 1075 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S. Ct. 962, 30 L. Ed. 2d 815 (1972); Lynch v. Sperry Rand Corp., 62 F.R.D. 78, 85 (S.D.N.Y. 1973). *fn6"

 Accordingly, plaintiffs' motion for certification of a plaintiff class is granted.

 Entry Level Examinations

 In order to be appointed a police officer, an applicant must, among other things, achieve a 75 percent score on a written examination. Individuals who pass this examination are ranked on an eligible list in order based on their scores. *fn7" The highest ranked are the first to be given available jobs. The lowest ranked are the last to get jobs, and consequently are the first to be fired when there are layoffs. Plaintiffs contend that the use of these examinations prior to 1973 violated both their constitutional and statutory rights.

 1. Constitutional Claims

 In Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976), the Supreme Court upheld the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department even though the test had a discriminatory impact in screening out black candidates. The Court of Appeals had declared a lack of discriminatory intent irrelevant to establishing a constitutional violation. The Supreme Court reversed, holding that the circuit court "erroneously applied the legal standards applicable to Title VII cases *fn8" in resolving the Constitutional issue before it," viz., whether the use of the qualifying examination invidiously discriminated against blacks and hence denied them their due process rights contrary to the commands of the Fifth Amendment. The Supreme Court continued:

 
The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. . . . But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.
 
(citation omitted)

 Id. at 239. The rule in other equal protection cases is likewise a requirement that plaintiffs show intentional discrimination, not merely discriminatory impact. Id. at 239-41. It follows that §§ 1981 *fn9" and 1983 *fn10" require the same showing. *fn11"

 While an invidious discriminatory purpose may often be inferred from a practice which affects a definable minority race or group more than the majority, disproportionate impact "is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution." Id. at 242. In the instant case, while the discriminatory impact of entry level examinations seems clear enough, the tests used by the NYCPD, like the examination upheld in Washington v. Davis, appear to be facially neutral and "rationally may be said to serve a purpose the Government is constitutionally empowered to pursue." Id. at 246.

 Plaintiffs attempt to show discriminatory intent primarily from the fact that instead of administering a general qualifying examination, the NYCPD used entry level tests which it knew had a discriminatory effect in screening out minority candidates. The proof of intent offered by plaintiffs here differs little from that before the Supreme Court in Washington v. Davis and accordingly must be deemed insufficient.

 Defendants here were constrained by the New York State Constitution, Article 5 § 6, and the Civil Service Law § 50 et seq. to select employees for civil service positions based upon individual merit and fitness, to be determined, where practical, by competitive examination. The position of police officer is a competitive title, and appointments are made from eligibility lists compiled on the basis of ratings received by the candidates on the competitive portions of the examinations. Civil Service §§ 50(6) and 61. Absent a showing that the entry level examinations were purposely designed to keep minorities out of the police force, Washington v. Davis requires that such procedures be sustained even if they have the result of screening out minorities.

 Defendants have proffered evidence of recruitment efforts on their part to demonstrate their good faith, including the creation of a recruitment squad within the department's Personnel Bureau in 1967; participation in, and adoption of recommendations made by, a nine month Rand Institute Study in 1968-69; the use of a federally funded "Community Service Office" program, employing mostly minorities in quasi-police positions for the purpose of absorbing them into the police officer ranks; a cadet program begun in 1966 which paid minority youths receiving training in the Police Academy; and the establishment of an Equal Employment Opportunity Office. As a result of their commitment to increase minority representation, defendants claim that 23 percent of all new police recruits hired since 1973 were minority members.

 Plaintiffs challenge the defendants' assertion of bona fides with respect to minority recruitment. They argue that prior to 1970 the NYCPD made no real efforts to increase the number of minority police, nor was support given to recruitment efforts made by plaintiffs. Moreover, plaintiffs charge, the police department's recruitment program began in earnest in 1972, only after Title VII became applicable to municipalities and litigation was threatened. Finally, it is argued, defendants' recruitment efforts began after a freeze was placed on hiring, and whatever gains had been made were later wiped out by the layoffs.

 Even were these allegations enough to controvert defendants' evidence of good faith with respect to recruitment, they are nonetheless insufficient to meet the intentional discrimination requirements of Washington v. Davis. Mere absence of recruitment efforts, by itself, is not equivalent to an intent to discriminate. Also, even if the police department's stepped-up recruiting program can be directly linked to the threat of litigation after Title VII became applicable to municipalities, this alone is still no evidence of discriminatory intent. The applicability of Title VII to municipalities would establish prima facie liability on the part of the police department upon a showing that its hiring practices had a discriminatory impact regardless of intent. Taking steps to avoid such liability cannot justifiably be characterized as tantamount to admitting discriminatory intent. Nor is it reasonable to impugn the police department's recruitment efforts after 1972 because the City's financial problems required budget cuts and the imposition of a job freeze. The fact that subsequent layoffs by seniority eliminated recruitment gains may make out a Title VII cause of action, but it cannot stand for proof of invidious discrimination proscribed by the 14th Amendment to the Constitution of the United States under the Washington v. Davis rationale.

 The strongest evidence of defendants' discriminatory intent was the testimony of Police Commissioner Murphy and Deputy Commissioner Ward. Murphy testified that the NYCPD and the Department of Personnel did not try as hard as he would have liked to increase minority representation on the police force, but he never stated that either actively discriminated against blacks and Hispanics. In fact, he characterized the department's actions to recruit and retrieve minorities at least during his tenure (Oct., 1970 to May, 1973) as good faith efforts. Tr. 1130-32. He also stated that there was "a Civil Service effort to improve as much as it could the written examination." Tr. 1132.

 The testimony of Deputy Commissioner Ward is a more unqualified condemnation of the defendants' motivations. What he has characterized as intentional discrimination, however, is the complacency of officials in the police department and the Department of Personnel with respect to the status quo and their failure to take more active steps toward increasing minority representation. Taken as a whole this testimony falls far short of establishing liability under the Constitution or §§ 1981 and 1983.

 2. Title VII Claim12

 a. Applicability of Title VII.

 Plaintiffs challenge the job-relatedness of all pre-1973 entry level examinations. *fn13" However, the specific harm complained of in this action is not the decision to hire or not to hire based on the results of these pre-1973 examinations, but rather the decision to layoff police officers as a result of budget cuts. The layoffs, as indicated previously, were made in 1975 pursuant to a last-hired, first-fired seniority system which no one attacks as discriminatory in any way. Defendants claim that since the only acts complained of took place prior to the date Title VII was made applicable to municipalities, the standards of Title VII do not apply to this case. *fn14" Additionally, defendants contend that plaintiffs have not met the procedural requirements of Title VII, since neither any individual plaintiff nor the Guardians and Hispanic Associations filed timely charges with the Equal Employment Opportunity Commission ("EEOC"). *fn15"

 Decisions in this circuit and elsewhere, however, do not support defendants' position. To the contrary, the layoff of police officers in 1975 brings the pre-1972 alleged discriminatory practices within the scope of Title VII. In Acha v. Beame, [11 EPD P 10,740] 531 F.2d 648 (2d Cir. 1976), two women who were formerly police officers brought suit under Title VII and under the Fourteenth Amendment, alleging that threatened NYCPD terminations unlawfully discriminated against women. *fn16" The plaintiffs in Acha alleged, inter alia, that the facially neutral seniority system *fn17" perpetuated the past discriminatory practices of the Police Department, and that the layoffs violated their Title VII statutory rights.

 Acha did not specifically deal with the contention raised here by defendants that Title VII does not apply since the only post-Act practice complained of is the application of a neutral seniority system. Nevertheless that contention was implicitly rejected by the Court of Appeals.

 Plaintiffs' complaint had been dismissed by this court (Duffy, J.) primarily on the ground that Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h) excepts from the sanctions of Title VII the application by an employer of "different terms, conditions or privileges of employment pursuant to a bona fide seniority . . . system." Judge Duffy had also held that section 703(j) of Title VII, 42 U.S.C. § 2000e-2(j), protected the defendants since to grant plaintiffs' requested relief would constitute unlawful preferential treatment on the basis of sex.

 The Court of Appeals reversed, holding that neither section 703(h) nor 703(j) of Title VII insulated the defendants from a valid ...


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