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February 27, 1979

The GUARDIANS ASSOCIATION OF the NEW YORK CITY POLICE DEPARTMENT, INC., the Hispanic Society of the New York City Police Department, Inc., Oswaldo Perez, and Felix E. Santos, Individually and on behalf of all others similarly situated, Plaintiffs,
CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK, Department of Personnel of the City of New York, the New York City Police Department, Alphonse D'Ambrose, Individually and in his capacity as Chairman of the Civil Service Commission of the City of New York and Personnel Director of the City of New York, James Smith and Josephine Gambino, Individually and in their capacity as members of the Civil Service Commission of the City of New York, and Michael J. Codd, Individually and in his capacity as Commissioner of the New York City Police Department, Defendants

The opinion of the court was delivered by: CARTER

This is a class action brought by Black and Hispanic police officers challenging discriminatory hiring and firing practices of the New York City Police Department ("NYPD"). The case is currently before the court on remand from the Second Circuit for reconsideration in light of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Plaintiffs respond to the remand by making an omnibus motion. They first seek to consolidate this suit with an earlier one between the same parties. Next, they move to amend the complaint in the prior suit to include allegations made in the case at bar. Lastly, they renew their application for a preliminary injunction under a number of separate rubrics.

A chronology of the long history of this lawsuit is required to understand the present motions. In 1972, plaintiffs brought a lawsuit, Guardians Association v. Civil Service Commission of City of New York, 72 Civ. 928 ("Guardians I "), to declare illegal written employment tests and a height requirement used in making appointments to the NYPD. Plaintiffs alleged violations of 42 U.S.C. §§ 1981 and 1983, Article 5, § 6 of the New York State Constitution, and §§ 50 and 52 of the New York Civil Service Law. By endorsement dated July 12, 1973, Judge Ryan of this court denied a motion for a preliminary injunction on the strength of the NYPD's representation that eligibility lists reflecting scores on the challenged examinations were about to expire. That order was affirmed on November 21, 1973. Guardians Association v. Civil Service Commission of City of New York, 490 F.2d 400 (2d Cir. 1973). The court found:

There would have been little use in the court's devoting days of much needed time to umpiring a battle of experts concerning the job-relatedness of examinations whose lists were expected to be approaching exhaustion.

 490 F.2d 403. After the Court of Appeals' decision, plaintiffs took no steps to continue the litigation, and defendants took no action to dismiss the case.

 In June 1975, New York City laid off a number of policemen in response to the fiscal crisis. On March 24, 1976, over two years after the Court of Appeals' decision in Guardians I, plaintiffs attempted to bring on before Judge Ryan a motion for expedited discovery of the impact of the layoffs on minority officers. Judge Ryan, by letter dated March 25, 1976, informed plaintiffs' counsel that the case was closed. Plaintiffs' counsel took exception to the court's conclusion because no order closing the case had ever been entered. Nonetheless, no appeal from Judge Ryan's ruling was filed. Instead, the present action ("Guardians II ") was commenced before me.

 Guardians II was instituted on April 30, 1976. *fn1" The new complaint restated the constitutional claims made in Guardians I and advanced several statutory claims, including an assertion that the NYPD's seniority system and "last-hired, first-fired" layoff policy violated Title VII, 42 U.S.C. §§ 2000e, Et seq. Transgression of that statute had not been argued in the previous action because an amendment making Title VII applicable to municipal employers had taken effect only on March 24, 1972. A request for an injunction reordering the NYPD's seniority system was added to the prayer for relief. In an opinion issued on March 17, 1977, the court rejected plaintiffs' §§ 1981 and 1983 claims because the evidence failed to show intentional discrimination, an essential element of a constitutional violation under Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). Nonetheless, the examinations and height requirement were found to offend Title VII because the NYPD could not justify their discriminatory impact with a showing of "job-relatedness." Since the seniority system perpetuated the effects of the entrance requirements beyond the date Title VII became applicable to municipalities, the court enjoined the NYPD from utilizing its seniority lists for layoff or recall purposes until such time as it could purge the lists of the lingering effects of the discriminatory requirements. Guardians Association v. Civil Service Commission of City of New York, 431 F.Supp. 526, 536-38 (S.D.N.Y.1977) (Carter, J.) (Guardians II ). On June 21, 1977, the Court of Appeals vacated the preliminary injunction and, as indicated previously, remanded the case for reconsideration. 562 F.2d 38 (2d Cir. 1977).

 In Teamsters, supra, the Supreme Court ruled that a bona fide seniority system which perpetuated pre-Title VII discrimination beyond the effective date of Title VII was not violative of the Act. The Court interpreted § 703(h) of Title VII as immunizing from attack bona fide seniority systems that freeze the consequences of pre-Title VII discrimination. Thus, the Court's mandate effectively overrules this court's prior determination that the NYPD's seniority system, by continuing the effects of past discrimination beyond the date Title VII became applicable to municipalities, violated the Act. *fn2" A fuller analysis of the impact of Teamsters on the merits of this lawsuit is incorporated below in the discussion of plaintiffs' substantive motion to renew the preliminary injunction.

 Plaintiffs' Motion to Consolidate and Amend

 The purpose of plaintiffs' motion to consolidate Guardians I with Guardians II and to amend the complaint in Guardians I to include the theories advanced in Guardians II seems to be to permit the claims in Guardians II to relate back to the date upon which Guardians I was filed. Relation back would then permit avoidance of any time bar that may arise from the Supreme Court's holding that a bona fide seniority system Itself may not be the object of a Title VII challenge. Since today's decision is unaffected by any time bars for bringing a lawsuit under Title VII, I need not keep apace with plaintiffs' procedural acrobatics.

 Plaintiffs' Motion to Renew the Preliminary Injunction

 Plaintiffs invoke a variety of statutory and constitutional provisions in an effort to renew the preliminary injunction. First, plaintiffs argue that, despite Teamsters, they are entitled to relief under Title VII. Second, they contend that evidence adduced at the previous hearing also shows the NYPD's employment practices to have offended Title VI, the Revenue Sharing Act, and the New York Constitution. *fn3" Third, plaintiffs ask that the court reconsider its ruling that 42 U.S.C. § 1981, like 42 U.S.C. § 1983, requires intentional discrimination. *fn4" The Title VII claim is addressed first, since renewing the previous order would render consideration of the other claims superfluous.

 A. Title VII

 Under Teamsters, a meritorious Title VII claim against a municipality requires an act of discrimination after March 24, 1972, rather than discrimination before that date whose effects are felt thereafter through a facially neutral seniority system. In the prior opinion, the court concluded that the pre-1973 examinations and height requirement violated the strictures of Title VII. If plaintiffs can now show that the results of those entrance tests contributed to discriminatory acts committed After March 24, 1972, the Teamsters requirement will have been met.

 Stripped of the argument concerning the NYPD's seniority system, plaintiffs' allegations are reduced to claims of discriminatory refusals to hire. Discriminatory refusal to hire is a well established basis for awarding a discriminatee seniority retroactive to the date upon which he would have been hired but for the discrimination. Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). Retroactive seniority is an appropriate remedy so long as the award does not take into account any period before Title VII governed the employer's practices. Teamsters, supra. In a situation analogous to the one at bar, Judge Duffy affirmed that Teamsters left intact this remedy for Title VII violations. In that case, policewomen, like the minority class members here, had obtained a ruling that the June 1975 layoffs violated Title VII because they were based on a seniority system which perpetuated past discrimination. The ruling was then revised in light of the Supreme Court's opinion in Teamsters. Acha v. Beame, 438 F.Supp. 70 (S.D.N.Y.1977). Judge Duffy held that although the bona fide seniority system could no longer provide the basis for attack, class members could still show discriminatory refusal to hire. He stated:

. . . (A)ny class member who was not hired until after March 24, 1972 and, but for her sex would have been hired earlier than her actual appointment date, is entitled to a seniority revision.

 438 F.Supp. 77. The Court of Appeals affirmed, pointing out that it was also open to plaintiffs to prove post-Title VII violations besides discriminatory refusal to hire. Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978). Thus the only effect Teamsters has on a post-Act discriminatory refusal to hire claim is to limit awards of compensatory seniority to the effective date of Title VII.

 Although none of the challenged examinations were administered after March 24, 1972, appointments based on the results were made until October 7, 1974. Also, appointments based on the height requirement were made until 1973, when the NYPD voluntarily discontinued the practice. Defendants argue perfunctorily that the time of the discrimination must be determined by the dates of the tests and not by the dates of the hiring decisions. *fn5" Clearly, defendants' position is untenable. Unlawful discrimination occurs in the denial of a job based on the examinations, not in the taking of the examinations themselves. There would be little incentive to comply with Title VII if employers could continue to hire from biased eligibility lists because they were based on tests administered prior to the effective date of the Act. Thus refusals to hire minority group applicants after March 24, 1972, on the basis of scores on the examinations or failure to meet the height requirement, are post-Act violations of Title VII.

 The violations do not incorporate the hiring decisions affecting all class members certified in the court's previous decision, however. The class, defined as all Black and Hispanic New York City policemen currently on layoff who would not have been furloughed but for defendants' allegedly discriminatory practices, includes patrolmen hired Before March 24, 1972. Discrimination against them ceased as of the day they were hired, See Cates v. United Airlines, Inc., 561 F.2d 1064, 1068 (2d Cir. 1977), and Teamsters, therefore, bars their Title VII claims. Thus, only the sub-class of patrolmen hired after March 24, 1972, is entitled to relief. Similarly, members of the sub-class now entitled to relief may receive less seniority because Teamsters limits awards of compensatory seniority for municipal employees to March 24, 1972. Thus, despite plaintiffs' protestations, the injunction that may now issue under Title VII is not in all respects as comprehensive as that previously decreed.

 Other hurdles lie between plaintiffs and even a partial renewal of the preliminary injunction under Title VII. First, a problem arises from the court's earlier definition of the class as populated by officers "currently on layoff." The NYPD avers that all officers previously laid off have either been rehired (some provisionally under the C.E.T.A. program) or have refused offers of re-employment. Nonetheless, the officers' re-employment does not moot the case. The previously furloughed patrolmen still need retroactive seniority to protect against possible future discriminatory layoffs. The class definition is therefore revised to include all Black and Hispanic New York City policemen previously on layoff who would not have been furloughed but for defendants' discriminatory practices.

 More importantly, that a sub-class has been victimized by post-Title VII discrimination does not necessarily establish its entitlement to relief. The members of the sub-class must also show that they made a timely administrative challenge to the discrimination as defined in United Airlines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977). There, in a companion case to Teamsters, the Supreme Court ruled that a plaintiff, after being laid off and rehired, could not avoid being time-barred from challenging her layoff by styling her claim as a challenge to the lower seniority ranking which followed from the furlough. The Court reasoned that § 703(h) prohibited a finding that a bona fide seniority system, by virtue of its freezing into place the effects of past discrimination, constituted a continuing violation of Title VII. Thus the timeliness of a Title VII challenge must be measured by the date upon which the underlying discriminatory act occurred and not upon the date (often the present) through which the seniority system perpetuated the disadvantage caused by that act.

 One of the E.E.O.C. charges filed on May 23, 1975, by the president of the Guardians Association *fn6" reads as follows:

NYC as a whole has a Black and Hispanic population of 40%. The NYCPD has a Black and Hispanic population of only 11.6%. Less than 36 of these minorities are superior officers. It is expected that at the end of the life of the existing lists (entrance and ...

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