The opinion of the court was delivered by: BRIEANT
In this action, filed June 16, 1977, plaintiff Theodore Kirkland asserts that the Board of Education ("Board") of the City of Buffalo, New York discriminated against him on two separate occasions in employment because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and also in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Subject matter jurisdiction in this case is founded upon 42 U.S.C. § 2000e-5, whose jurisdictional requirements have been met, and upon 28 U.S.C. § 1343. The case was tried before me without a jury on December 13 and 14, 1978. Post trial briefs have been received and considered.
The proof at trial shows, and I find, that in October 1971 the Board began a search for applicants for a newly created position of Director of Security ("Director") for the Buffalo Public Schools. Advertisements appeared in two local newspapers inviting applications for the position, and approximately twenty persons applied for what was to be a "provisional" appointment, under provisions applicable generally to the classified service under § 65, New York Civil Service Law. Seventeen of these applicants were non-residents of the City of Buffalo. Plaintiff Kirkland did not read the advertisements, nor did he apply for the provisional appointment. Based on a recommendation by the Superintendent of Schools, the Board selected Mr. Wayne Howard, a fully qualified applicant who was a non-resident, and before his appointment secured the City of Buffalo Civil Service Commission's waiver of the City's residence requirement.
(PX 6, 8). Mr. Howard was appointed provisionally on November 11, 1971. The record indicates this appointment was based on the excellent qualifications of Mr. Howard as an applicant. There is testimony that suggests that Mr. Howard was told by the Superintendent before he resigned his prior employment, that this appointment was not provisional, but instead was permanent as well as noncompetitive. (Tr. p. 214).
In accordance with the New York State Civil Service Law, a competitive examination was scheduled by the Commission to secure a list from which the Board might make a probationary (permanent) appointment to the competitive position of Director of Security. In September, 1972, the examination was posted, with a two year Erie County residency requirement and the stipulation that "Buffalo (City) residents may be given preference in appointment." (PX 9). (Emphasis added.) The test was originally planned as a written exercise, though this was later changed, upon request of the Superintendent of Schools, to include an oral examination.
The test was administered in November 1972 and the results show that plaintiff Kirkland, a black male, ranked first, several points ahead of the provisional incumbent, Howard, a white male, and also ahead of Gerald Calvaneso, a white male. These persons were the "top three" from among whom a probationary appointment was required to be made. Certification of such a list makes further employment of a "provisional" appointee unlawful.
On May 23, 1973, the Commission approved an eligible list of these top three candidates for the position, which list was certified to the Board in June, 1973 for purposes of making a probationary appointment, to become permanent after one year of successful service.
The three candidates were interviewed by the Superintendent and by members of the Board, and the recommendation was put forward by Superintendent Reville that Wayne Howard receive the probationary appointment. There had existed an unofficial policy or custom of the Board, for at least seventeen years, that an otherwise satisfactory provisional incumbent would be appointed if he placed either one, two or three on the Civil Service test. This policy was lawful under the state civil service statutes regulating the classified service. Traditionally, an appointing authority, acting under the so-called "one out of three rule" can appoint any one of the top three on a current certified list, and may select among them based on an interview, or even without any articulated basis. The rule represents civil service policy of long standing in New York, in effect since 1883, when the first civil service law was enacted to limit, but not entirely remove, the perceived pernicious effect of the "spoils system" on non-policy-making public employment. The policy to favor a provisional giving satisfactory service had a legitimate purpose: when a new position must be filled prior to an available list, qualified applicants are unlikely to give up existing employment knowing that even if they "pass" the subsequent examination, another person with a higher score (based often on veteran's credit of from 2 1/2 to 10 points added for prior military service see § 85(2), New York Civil Service Law) is likely to oust them when the time comes to make a probationary appointment. The policy to prefer incumbents played a part in Superintendent Reville's thinking, as did Mr. Howard's successful role in the creation of the school security program and prior, highly satisfactory two-year tenure as a provisional. (Tr. pp. 169-70). Mr. Reville said that residency was not a factor in his decision, that the Board had no policy at the time regarding residency within the limits of the City of Buffalo. Associate Supt. for Personnel Connors confirmed this (Tr. p. 105). The issue of residency will be discussed more fully below.
The probationary appointment of Wayne Howard was made on July 18, 1973.
As a result of the hiring of Mr. Howard, plaintiff Kirkland filed a complaint with the New York State Division of Human Rights alleging discrimination. In March, 1974, that Division's report found that "there is no probable cause" to believe that the Board had engaged in discriminatory hiring policies. On August 13, 1973, Mr. Kirkland filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC ultimately determined on June 22, 1976 that "there is reasonable cause to believe that Respondent failed to hire Charging Party because of his color, black." The EEOC found that the Board's "policy of reappointing incumbents would per se exclude blacks from supervisory jobs once they became competitive, since blacks were never placed in such positions provisionally." (PX 46A). When attempts at conciliation failed and the U. S. Department of Justice made the decision not to pursue this case itself, Mr. Kirkland was given a "right to sue" letter on May 16, 1977.
Meanwhile, on September 17, 1973, in the New York State Supreme Court, plaintiff Kirkland sued the Board of Education, the Municipal Civil Service Commission and the City of Buffalo as defendants. He sought declaratory and injunctive relief, as well as an order directing the appointment either of himself, or the third-placed applicant to the position of Director of Security. This action was discontinued under circumstances discussed below.
Following the appointment of Mr. Howard, the Board made two important changes in hiring policy. The first, in 1975, "was to insist that all new members of the Board of Education staff be residents of the City of Buffalo" (Tr. p. 234). Board President Baugh testified about the second:
"Following the first appointment of Mr. Howard . . . there was discussion about the one, two, three ranking on the Civil Service list. Following that the board did establish a policy that unless there was some extenuating circumstances or what have you, number one would be the appointee of the board and we no longer look beyond the first person, unless there was a reasonable reason to do that." (Tr. p. 235).
Implicitly, this policy change eliminated the long-standing practice of appointing the provisional incumbent if he were reachable on the eligible list (Tr. p. 236).
Wayne Howard served in the position of Director until April 23, 1977, when he resigned to take a similar position with the Boston public schools. Superintendent Reville was informed in December of 1976 that Howard was considering such a move, and Howard told him on March 23, 1977 of his definite intention to resign (Tr. II, PP. 61-2). Board President Baugh became aware of Howard's physical departure from Buffalo, on accrued leave effective March 23, 1977 (Tr. p. 216).
The Civil Service Commission certified to the Board on May 18, 1977 an eligible list consisting solely of the two remaining names of Kirkland and Calvaneso. On May 12th Mr. Kirkland received a letter from the Superintendent stating that his name "had been" certified for appointment to the Director's position and inquiring whether he would accept the appointment were the offer made. The letter from the Commission certifying the two remaining names noted: "This exhausts the eligible list for this position," and "appointment must be made on or before May 23, 1977 the expiration date of this eligible list." (PX 34). The consequences of failure to do so would be that a new list would have to be generated by the Commission after a new examination, and an appointment of Kirkland or Calvaneso made after May 23, 1977 would have been provisional only, with service to terminate on the certification of a new list. A time lag of a year or more is not unusual for the promulgation of a competitive examination followed by the certification of a new list. There was of course no assurance that plaintiff or Calvaneso would have placed among the top three on the new list, and be, therefore, reachable for probationary (permanent) appointment.
Mr. Kirkland, on May 16th, notified the Board of his willingness to accept. Interestingly, but apparently by coincidence, it was also on this day that the EEOC gave Mr. Kirkland his "right to sue" letter. Superintendent Reville proposed to the Board on May 25, 1977 the appointment of Mr. Kirkland as one of a large "package" of proposed personnel changes. Mrs. Florence E. Baugh, President of the Board testified that the Board meets on the second and fourth Wednesdays of the month as well as in "conference" (i. e., non-public and unofficial) sessions on the first and third Wednesdays. Between the time of Mr. Howard's resignation on April 23, 1977 and the vote on May 25, 1977 on Mr. Kirkland's appointment, the Board would have had two official or public meetings during which Mr. Kirkland's appointment could have been acted upon. The Board cannot approve personnel changes at conference sessions (Tr. p. 221).
Significantly, the appointment of Mr. Kirkland was discussed at length at a May 18th personnel committee meeting, though no appointment could have been made since it was not a public meeting of the entire Board. According to the minutes of the May 25th meeting, Superintendent Reville told the Board:
"My understanding is that we had a long discussion and there was no vote taken at the (Committee) meeting but there was a long discussion pro and con about the appointment to this position, and I gave my position which is the same position we gave here that I would recommend it as a probationary appointment to the Board of Education because Mr. Kirkland was number one on the list and I felt because he was number one on the list he deserves an opportunity to be put in the position to see if he could perform in the position." (PX 36, p. 8).
Mr. Kirkland's appointment, however, was not presented to the Board for approval until May 25th, two days after the Civil Service list which contained his name had expired (PXs 34, 35). The Superintendent proposed that the appointment be made retroactively effective to May 23rd.
There is, of course, no basis in the Civil Service Law for the Board to make a "retroactive" appointment. It is unlawful to pay an employee for days not worked and a probationary or permanent appointment cannot be made from an expired list. As will be seen below, the proposal to appoint "retroactively" was part of a scheme to violate Kirkland's civil rights, on the part of Reville, his subordinates, and legal counsel to the Board, which also violated state law by its intended "retroactivity." Section 56, N.Y. Civil Service Law. The reason for the delay in submitting the appointment, Associate Superintendent for Personnel Connors told the Board that evening, was that:
"On the advice of the Corporation Counsel's office, we did not move until we could get clearance from Mr. Kirkland and his attorney that the (Kirkland New York Supreme Court) case would be dropped. That was the reason for the delay." (PX 36, p. 9).
Indeed, Mr. Kirkland's lawsuit in the state court was "dropped" on May 13th or 14th. I find that directly or through the Corporation Counsel, the Superintendent of Schools successfully "persuaded" Mr. Kirkland and his lawyer to discontinue his suit in state court, as part of the consideration for his appointment, and that solely as a result of official insistence on this corrupt bargain, the appointment had to be delayed until after the civil service list expired. Accordingly, it was necessary to recommend to the Board that the appointment be made "retroactively."
The Board did not perform the bargain made in its behalf by the office of the Superintendent and the counsel. At the May 25th Board meeting Mr. Kirkland's name was singled out from the package and voted on separately; and he was denied the appointment by a vote of six to three. The six white members all voted against Mr. Kirkland, while the three black members of the Board voted for him (PX 36, p. 14).
There were many reasons expressed for the negative vote. Board member Bulera said that he cast his negative vote because the list had expired, because the two name civil service list was "incomplete" and the Board therefore had a duty to "recanvass the city" for possible applicants, and because the proposed use of electronic surveillance equipment under supervision of the Director of Safety might require certain training which Mr. Kirkland did not have. (Tr. II, 6-9). Mr. Kelly also cited many reasons for his negative vote, including the list's expiration and invalidity. He expressed his concern that the appointment would seem like a "deal" for Mr. Kirkland's discontinuing his suit, an appearance to which he objected. In addition, Mr. Kelly testified to his firm belief at the time that management positions with the Board should be "non-contractual." (Tr. II, 22 ff.). Mr. Ryan's negative vote was cast because the list was incomplete, he objected to a retroactive appointment, he thought the job was overpaid, and he did not think the position should be filled at all. Mr. Ryan was also concerned that the appointment would be an "admission of guilt" by the Board regarding Mr. Kirkland's lawsuit, and it appeared to him this appointment was an effort by the Superintendent to settle the state court suit through the award of a job. (Tr. p. 255 ff.). On this latter point at least, Mr. Ryan's perception is the same as that of this Court, and fully justified by the testimony at trial, and the contemporaneous exhibits. Board President Baugh recalled that discussion at the May 25th meeting "was around the fact that there was a case pending against the Board by Mr. Kirkland because of the first round." (Tr. p. 225). This, despite defendant's contention that "(t)he discontinuance of the plaintiff's Supreme Court action would not seem to have concerned any Board members." (Def. Post-Trial Brief, p. 27). The testimony concerning the May 25th meeting given by those Board members who appeared at trial is found to be truthful, and it is corroborated substantially by the contemporaneous exhibits.
Following the effective date of Mr. Howard's resignation, Superintendent Reville by administrative fiat of some sort had upgraded a subordinate security officer to fill the Director's position at the authorized salary. Apparently the City Civil Service Commission acquiesced in this improper personnel practice and the Board apparently did not insist on its right to effect this salary or personnel change. That officer, Mr. Lepir, held the title of "Acting" Director of Security and received the Director's authorized level of salary for over four months, until about September 5, ...