The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, District Judge:
Plaintiffs' class, consisting of female New York City police officers who were laid off on June 30, 1975, have, to date, substantially succeeded in challenging the hiring practices of the New York City Police Department ("N.Y.P.D.") as violative of Title VII, 42 U.S.C. § 2000e et seq. In the wake of the Supreme Court's rulings in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 14 FEP Cases 1514, 52 L. Ed. 2d 396, 97 S. Ct. 1843 45 U.S.L.W. 4506 (1977) and United Airlines, Inc. v. Evans, 431 U.S. 553, 45 U.S.L.W. 4566, 14 FEP Cases 1510, 52 L. Ed. 2d 571, 97 S. Ct. 1885, 45 U.S.L.W. 4566 (1977), the City of New York, its Mayor and its Police Commissioner, have renewed their motion for summary judgment, previously denied, dismissing this action. A brief review of the facts giving rise to this suit
and of the suit itself is necessary for an understanding of the motions.
Prior to January 1973, men, but not women, were eligible for the positions of "patrolman" and, for those men under the age of 21, "police trainee;" women were eligible only for the position of "policewoman." The N.Y.P.D. administered examinations for the policewoman position on March 21, 1964, Test No. 9986, and October 25, 1969, Test No. 9081. Between the dates of these two policewoman examinations, seventeen examinations were given for the patrolman and/or police trainee slots. Although no new uniformed officers, male or female, were hired from mid-1970 until 1973, by December 28, 1972, there were 25,210 members of the force, only 282 of whom were women. The low number of women was the product of an alleged official limitation which prevented the percentage of women from exceeding 1.34% of the total uniformed force.
Sometime in 1972, the Department, which had previously assigned policewomen primarily to matron-like functions, began to assign females to patrol duties. On April 24, 1973, then Police Commissioner Patrick V. Murphy ordered the merger of the separate categories of "patrolman" and "policewoman" into that of "police officer" and, thereafter, the identical height and weight requirements were imposed upon each sex. The plaintiffs assert that the official quota upon women members of the police force was not eliminated but was modified so that for every four men hired, one woman was hired. By June 1975, the percentage of women in the force rose to 2.62%.
Beginning in late May 1975, the N.Y.P.D. sent notices to over 5,000 police officers informing them that they would be terminated for budgetary reasons as of June 30, 1975. On June 25, Beraldine L. Acha and Arlene M. Egan, the named plaintiffs, filed charges with the New York City Human Rights Commission and the United States Equal Employment Opportunity Commission ("E.E.O.C.") alleging that the proposed terminations would constitute unlawful sex discrimination since there would be a disproportionate impact upon women. On June 26, this action was commenced under 42 U.S.C. §§ 1983 and 2000e-2; plaintiffs promptly moved for a preliminary injunction.
I ruled that although the layoffs would reduce the number of women on the force by 73.5% but only reduce the number of men by 23.9%, the firings were lawful because they were pursuant to a facially neutral seniority system and followed the "last hired, first fired" dictates of the N.Y. Civil Service Law § 80 (McKinney 1973). See 401 F. Supp. 816, 10 FEP Cases 1237 (S.D.N.Y. 1975). In denying the injunction and dismissing the complaint, I relied upon Third and Seventh Circuit decisions which had held that discharges based upon a bona fide seniority system were immune from attack by reason of Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), even though the seniority system perpetuated past discrimination.
The Court of Appeals reversed my determination and ruled that
"If a female police officer can show that, except for her sex, she would have been hired early enough to accumulate sufficient seniority to withstand current layoffs, then her layoff violates section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), since it is based on sexual discrimination."
531 F.2d 648, 654, 12 FEP Cases 257, 261 (2d Cir. 1976).
In advance of rehirings planned for July 7, 1976, plaintiffs moved for class certification, together with summary judgment and injunctive relief, for 54 class members. The defendants cross-moved for summary judgment raising the grounds of statute of limitations and laches. I ruled that the action was timely, relying upon the rationale of the Seventh Circuit's ruling in Evans v. United Air Lines, 534 F.2d 1247, 12 FEP Cases 1105 (1976). I granted class certification and partial summary judgment and injunctive relief to 38 women who took examination No. 9081 given on October 25, 1969, the same date that the identical examination, No. 9080, was given to males, and who received sufficiently high test scores so that they would have been among the 125 police trainees who were hired in May 1970; each of the 38 had been under the required age of 21 at the time the 125 similarly situated males were appointed.
Since partial summary judgment had been entered pursuant to Rule 54(b), Fed.R.Civ.P., defendants filed a notice of appeal. On October 7, 1976, the Court of Appeals dismissed the appeal for failure to properly docket as required by that Court's "Civil Appeals Management Plan."
At the plaintiffs' request and without the opposition of defendants, I appointed a Special Master pursuant to Rule 53, Fed.R.Civ.P., to hear and report on the cases of the several hundred individual class members. To date, Special Master Renee Roberts has completed hearings in the cases of approximately 150 class members. She has issued five interim reports deciding the claims of 78 women. In advance of rehirings in March 1977, I confirmed the findings of fact and conclusions of law of all but 13 of the women
and enjoined rehirings from a seniority roster which did not reflect the adjusted seniority of 34 women found entitled to relief. Through the cooperation of all counsel and of the Special Master, all successful class members have been reinstated without the need for "bumping" any male officers in active service.
Plaintiffs' threshold argument in opposition to defendants' renewed summary judgment motion is that this Court is deprived of jurisdiction to consider any issues necessarily decided by the Court of Appeal's February 19, 1976 opinion, and that a motion should first be made in the Court of Appeals to recall their mandate. Last term, in Standard Oil Co. of California v. United States, 429 U.S. 17, 50 L. Ed. 2d 21, 97 S. Ct. 31 (1976), the Court ruled that it is unnecessary to move to recall a mandate prior to a district court's consideration of a Rule 60(b), Fed.R.Civ.P., motion, and that such a motion to recall would actually be improper.
Alternatively, plaintiffs contend that the entry of partial summary judgment and the subsequent dismissal of the appeal renders the issues decided therein res judicata. While plaintiffs are correct in their assertion, the purpose of Rule 60(b) ...