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September 27, 1982

Michael J. STOKES, et al., Plaintiffs,

The opinion of the court was delivered by: BRIEANT


BRIEANT, District Judge.

 Familiarity of the reader with this Court's Memorandum Decision docketed June 29, 1981 in the first above entitled Stokes action is assumed. In the interests of brevity, the procedural history of this litigation set forth therein will not be repeated. As a result of that decision there was left for trial in the Stokes case claims of racial discrimination made by the remaining plaintiffs in Stokes and plaintiffs in Robinson, namely, Green, Wells, Robinson, Whitney and Patterson ("the supervisory employees"); Wedderburn and Casiano ("the non-supervisory employees"). The claims are founded solely on alleged violation of Title 42 U.S.C. § 1981 and the Fourteenth Amendment. The Title VII claims asserted under 42 U.S.C. § 2000e, et seq. have been dismissed without prejudice as a result of this Court's June 29, 1981 decision.

 The second above entitled action, Robinson, was filed as a related case to Stokes, and treated as such by the Court. The same attorneys appearing in Stokes represent the parties in Robinson, and the defendants are the same. The theory of assigning a "related" case to the same Judge to whom the prior (lower) docket numbered case has been assigned, is that all pre-trial proceedings may be supervised together, and the cases may be tried together so as to assure consistency of result and to save time and expense for the parties, the attorneys and the Court. Ordinarily in attending to a related case a joint trial is preferable to a formal order of consolidation, because once a case is consolidated a severance or the necessary finding under Rule 54(b), F.R.Civ.P. would be necessary before a judgment could be entered as to less than all of the parties.

 The Stokes case was brought to trial before me on February 8, 9 and 10, 1982, and decision was reserved pending the submission of post-trial memoranda. Through some inadvertence, the Docket and Courtroom minutes do not show that the Robinson case was actually brought to trial at the same time as the Stokes case. However, at the opening of trial, the attorney for plaintiffs in both actions produced Mr. Alvin Whitney, a co-plaintiff in Robinson as his first witness. Mr. Whitney was not a party to the Stokes case, and his name was not listed on the witness list required as a part of the pre-trial procedures for trial of the Stokes case. Defendants objected to taking the testimony of Mr. Whitney on that ground. At that point the attorney for plaintiffs informed the Court that he was going to "add three persons [as witnesses] who are parties to this other [Robinson ] action." (Tr. p. 5). The Court thereafter overruled the objection and accepted the testimony of Mr. Whitney, as well as the testimony of Mr. Lafayette W. Patterson. Mr. Robinson did not testify, but it was stipulated that his testimony would be substantially the same as that of Whitney and Patterson. At a hearing held September 20, 1982 the Court held that the trial of Stokes should be considered for all purposes as a joint trial of the Robinson case. Counsel agreed that this was appropriate.

 Plaintiffs are black persons, except for Casiano, who is Hispanic. The remaining defendants before the Court are Thomas A. Coughlin, who at relevant times was the Commissioner of the New York State Department of Correctional Services ("DOCS"), Victor S. Bahou, who was President and Commissioner of the New York State Civil Service Commission ("CSC"), James T. McFarland and Josephine L. Gambino, who were Commissioners of the CSC.

 As noted in our prior decision in Stokes, plaintiffs claimed that in implementing the New York Civil Service Law, § 81, the defendants have discriminated against them and a number of others similarly situated, on the basis of race, color or national origin in violation of 42 U.S.C. § 1981 and § 1983 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

 Plaintiffs in these cases were all employed by the New York State Office of Drug Abuse Services ("ODAS"), a bureaucracy which had previously been known as the Drug Abuse Control Commission ("DACC") and prior to that as the Narcotics Addiction Control Commission ("NACC"). The non-supervisory employees had served as Narcotics Correction Officers ("NCOs"), while the supervisory plaintiffs were Narcotic Correction Charge Officers ("NCCO"), or Chief Narcotic Correction Charge Officers ("NChCCO").

 A statewide custodial narcotics program had been started by New York State in the nineteen sixties. From its inception the program grew rapidly, phasing in facilities for the custodial treatment of narcotics addicts in various places, mostly in the so-called "downstate area." These institutions varied as to the size of population and the extent of custody and supervision imposed upon the addict inmates. However, in reality, the more secure narcotics facilities were essentially equivalent to the least secure prisons (correctional facilities) in the State, operated by DOCS. The majority of the supervisory employees at ODAS facilities were White. However, compared to those holding similar positions at DOCS, there was a much larger minority representation within the ODAS work force. Also, the minority representation was considerably greater at the non-supervisory level in ODAS than at DOCS. This situation arose for a number of reasons, including an effective affirmative action program conducted by those in charge of ODAS, as well as the fact that the facilities were located generally in downstate areas of the State which tend to have a more substantial Black and Hispanic population. Also, ODAS was manned later in time than similar DOCS facilities.

 In 1971, due to secular changes, beyond the scope of this opinion and not relevant, the New York State drug program began a substantial retrenchment. First, it closed some of its upstate facilities. Thereafter other facilities were closed. Plaintiffs and those similarly situated wer laid off, or in the language of government, they were "riffed" (the acronym for "Reduction in Force").

 Pursuant to New York Civil Service Law § 81, an employee who is riffed has the right to be placed on a preferred list for the position held at the time he was laid off. Section 81 provides in relevant part that:

 "1. Establishment of preferred lists; general provisions. The head of any department, office or institution in which an employee is suspended or demoted in accordance with the provisions of sections eighty and eighty-a of this chapter shall, upon such suspension or demotion, furnish a state civil service department or appropriate municipal commission, as the case may be, a statement showing his name, title or position, date of appointment, and the date of and reason for suspension or demotion. It shall be the duty of such civil service department or commission, as the case may be, forthwith to place the name of such employee upon a preferred list, together with others who may have been suspended or demoted for the same or similar positions in the same jurisdictional class, and to certify such list, as hereinafter provided, for filling vacancies in the same jurisdictional class; first, in the same or similar position; second, in any position in a lower grade in line of promotion, and third, in any comparable position. Such preferred list shall be certified for filling a vacancy in any such position before certification is made from any other list, including a promotion eligible list, notwithstanding the fact that none of the persons on such preferred list was suspended from or demoted in the department or suspension and demotion unit in which such vacancy exists. No other name shall be certified from any other list for any such position until such preferred list is exhausted. The eligibility for reinstatement of a person whose name appears on any such preferred list shall not continue for a period longer than four years from the date of separation or demotion.

 2. Order of certification of names from preferred lists. Except as hereinafter provided, the names of persons on a preferred list shall be certified therefrom for reinstatement to a vacancy in an appropriate position in the order of their original appointments.

 (a) Upon the occurrence of a vacancy in an appropriate position in the service of a civil division, except in a city having a population of one million or more, the names of persons on the preferred list shall be certified to fill such vacancy in the following order: (1) persons suspended from or demoted in the department or agency within which such vacancy occurs; and ...

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