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March 10, 1978

DAVID SCHICK, Individually and on behalf of all others similarly situated, Plaintiff,
HARRY I. BRONSTEIN, Individually and in his official capacity as City of New York, Director of Personnel and Chairman of Civil Service Commission, City of New York; JAMES SMITH and JOSEPHINE CAMBINO, Individually and in their official capacities as members of the New York City Civil Service Commission; MICHAEL J. CODD, Individually and in his official capacity as Commissioner New York City Police Department; THE CITY OF NEW YORK; THE NEW YORK CITY CIVIL SERVICE COMMISSION; THE NEW YORK CITY DEPARTMENT OF PERSONNEL; THE NEW YORK CITY POLICE DEPARTMENT, Defendants

The opinion of the court was delivered by: LASKER


 In 1969, David Schick applied for the position of Patrolman with the New York City Police Department. Although he passed the written examination, Schick's application was rejected because he failed to meet the 5 feet 7 inch height requirement then in effect for the job.

 At the time of Schick's application, the position of Patrolman was open only to men. Women were considered for the position of Policewoman, which involved different duties, and were required to meet only a 5 feet 2 inch height requirement. In September and October of 1973, in response to the amendment of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., to bar sex discrimination by municipalities, the Police Department abolished the difference between the jobs of Patrolman and Policewoman, eliminated the minimum height requirement, and approved identical physical standards for men and women.

 In September of 1973, the Police Department announced that an examination would be offered for applicants to the equivalent positions of Patrolman and Policewoman. Schick did not take this examination but instead, in November of 1973, wrote to the Police Department to be reconsidered for appointment in view of his standing on the 1969 list and the elimination of the height requirement. In January of 1974, the Department wrote Schick rejecting his reapplication. He was informed that the 1969 height requirement could not be abolished retroactively and advised that if he "believes he can meet the 5 feet 7 inch height requirement for this position, he may request a reexamination while the 1969 list is still alive."

 On October 3, 1973, Schick filed a complaint with the New York State Equal Employment Opportunities Commission ("EEOC") alleging that he was unlawfully discriminated against on the basis of sex. In May of 1974, after receiving a "Right to Sue" letter from the EEOC, Schick brought this suit, alleging that the defendants violated his rights under Title VII, the Fourteenth Amendment, and 42 U.S.C. § 1983, and asking for injunctive and declaratory relief and damages.

 In February of 1977, Schick moved for summary judgment. Instead of answering the motion, the City moved to dismiss the complaint. The City's motion was granted by this court in June of 1977 only to the extent of dismissing the § 1983 claims against New York City and its constituent parts for lack of jurisdiction and the § 1983 damages claims against the individual defendants in their official capacities. After this disposition of the motion to dismiss, the City cross moved for summary judgment. We consider now the merits of Schick's motion for summary judgment and the City's cross motion.


 The City's Motion for Summary Judgment

 A. Subject Matter Jurisdiction Under Title VII

 In its motion to dismiss, the City argued that the court lacked subject matter jurisdiction over Schick's Title VII claim since he alleged a discriminatory act in 1969, his initial failure to be hired, although Title VII did not become applicable to municipalities and municipal agencies until 1972. In rejecting this claim, we found that Schick had alleged a discriminatory act following the amendment of the statute, namely the Department's refusal in 1974 to reconsider his 1969 application after the City had eliminated its prior height requirement. The City now relies on this decision to argue on a new ground that the court lacks subject matter jurisdiction over the Title VII claim.

 Title VII requires that a complaint be lodged before the EEOC prior to commencement of a civil suit, 42 U.S.C. § 2000e-5(b), in order to permit the EEOC to attempt an informal conciliation between the parties. The City argues that Schick has not fulfilled this requirement since he has filed different claims before the EEOC and this court. The argument runs that, since the EEOC complaint was filed in October of 1973, it cannot deal with the subject matter of the federal claim which has been identified by the court as an act of discrimination by the City occurring in 1974. Because the statutory framework has been violated, the City asserts that the Title VII claim should be dismissed.

 We do not agree that the charges brought before the EEOC differ in any significant respect from those before this court. Schick filed the following complaint with the EEOC:

"I am being discriminated against because of my sex (male) in not being hired as a New York City police officer because of my height, which is below the minimum 5 feet 7 inch requirement in existence at the time I took the written examination in April, 1970 whereas the then existing height requirement for women was 5 feet 2 inches. For the next police officer examination to be given on or about December 15, 1973 there are no height requirements for men or women. I passed the April, 1970 examination, was placed on the police officer list but have been passed over and not called even though I believe that the height requirement for men and women has been eliminated."

 This complaint deals not only with the Department's initial refusal to appoint Schick but also with its failure to appoint him following the elimination of the height requirement, which is the subject of the federal suit. The substance of the two complaints is certainly sufficiently similar to alert the EEOC to what is now the subject matter of this federal suit and to permit it to attempt a conciliation between the parties which could have averted this suit. ...

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