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WINTZ v. PORT AUTH. OF NEW YORK & NEW JERSEY

November 30, 1982

NEVILLE I. WINTZ, DONALD PERKINS, EDGAR A. JORDAN, GEORGE ROBINSON, SIDNEY MURRAY, JOHN SIMS, RAOUL BEAUVOIR, HECTOR CUEVAS and ANDRE EXUME, individually and on behalf of similarly situated, Plaintiffs,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, COMMISSIONERS, JOSEPH CULLMAN, JERRY FITZGERALD ENGLISH, MILTON A. GILBERT, LEWIS L. GLUCKSMAN, JAMES G. HELLMUTH, JAMES C. KELLOGG, III, FRANK R. LAUTENBERG, WILLIAM J. RONAN, ALAN SAGNER, HOWARD SCHULMAN, ROBERT F. WAGNER, THE REVEREND VICTOR R., S.J. YANITELLI, PETER C. GOLDMARK, JR., EXECUTIVE DIRECTOR and HARVEY M. SHERMAN, DIRECTOR OF ADMINIS. and ASSISTANT EXECUTIVE DIRECTOR, Defendants



The opinion of the court was delivered by: POLLACK

OPINION AND DECISION

 MILTON POLLACK, District Judge.

 Nine engineers in the Design Division of the Engineering Department of the Port Authority of New York and New Jersey have sued the Authority, its commissioners and directors claiming racial discrimination in employment practices in their department. The issues were tried to the Court at a Bench trial; all the parties and their counsel having duly appeared and been heard and due deliberation having been had thereon, the Court decides and finds as follows:

 Jurisdiction of the Court

 This action was brought under Title 42 United States Code §§ 1981, 1983 and 1985 and under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The action was commenced after the notice of right to sue letter, dated May 18, 1981, was received by the plaintiffs. This suit was commenced on August 19, 1981. It has been stipulated by the parties that the Court lacks jurisdiction over any allegations prior to March 24, 1972, since 42 U.S.C. § 2000e et seq. was first made applicable to government employees on March 24, 1972. Article V, § 6 of the New York Executive Law is not applicable to the Port Authority. The Equal Employment Opportunity Commission found, on May 18, 1981, that there was not reasonable cause to believe that any of the plaintiffs had been discriminated against by the defendants and dismissed the charges.

 Preliminary

 This case has been prepared in exemplary fashion by both sides and that has made the task of the Court simpler in concentrating on the remaining controverted areas. Following broad but appropriate discovery, the parties spent considerable time reaching Agreed and Disputed Proposed Findings of Fact and Conclusions of Law. The Agreed Findings of Fact were admitted in evidence at the inception of the trial of each plaintiff's claim making evidence thereon no longer necessary. Days of trial time were saved. The parties further stated, succinctly, their respective contentions concerning objective ultimate facts which were controverted by the other side. These focused the remaining issues to be tried. Basically, since the facts were readily ascertainable or at least not reasonably controvertible, the trial became one on the issue of credibility and the issue of law. Thus the stage was set for the Court to resolve those issues almost as the trial was coming to a close and to reach and shortly announce a decision thereon.

 Applicable Law

 A. Title VII

 There are two principal doctrines, either one or both of which may be relevant in a Title VII case: the disparate treatment doctrine and the disparate impact doctrine. The two are described in the following excerpt:

 
The "disparate treatment" doctrine holds that differential treatment of comparably qualified persons of different races justifies an inference of intentional discrimination, unless the employer produces an acceptable explanation. If the employer produces such an explanation, plaintiffs can prevail only if they demonstrate that the employer's explanation is a pretext shielding a discriminatory motive. The "disparate impact" doctrine avoids issues of discriminatory motive; it holds that the use of employment tests and other selection devices that have an adverse racial impact constitutes unlawful discrimination, regardless of the employer's good faith, unless the employer can demonstrate the job-relatedness and business necessity of such devices. Bartholet, Application of Title VII to Jobs in High Places, 95 Har. L. Rev. 945, 964 (1982).

 Thus, under either theory, the plaintiffs have the initial burden of showing that the employment system treats comparable blacks and whites differently. If this is met, in either case, the defendant must then explain the differences. This will then return the burden to the plaintiffs to rebut defendant's explanation. Only the "burden of production" shifts to the defendant; the evidentiary burden of proof is always with the plaintiff.

 While disparate treatment cases require a showing of intent to discriminate, the plaintiff can make out a prima facie case of disparate treatment from which intent is inferred. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). If the defendant has met the plaintiff's proof by establishing legitimate non-discriminatory reasons, in order to succeed, the plaintiff must prove that the defendant's asserted justifications were only a pretext. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 The inclusion by plaintiffs of claims under 42 U.S.C. §§ 1981, 1983 and 1985 does not change the elements that plaintiffs must prove to obtain relief. It is clear that § 1981 provides no greater relief than Title VII. See New York City Transit Authority v. Beazer, 440 U.S. 568, 584 n. 24, 59 L. Ed. 2d 587, 99 S. Ct. 1355 (1978). The Second Circuit has extended this to § 1983 by noting that no greater or lesser protection against discrimination is provided in [Sections 1981 and 1983] than under Title VII. See Carrion v. Yeshiva Univ., 535 F.2d 722, 729 (2d Cir. 1976). Inclusion of these claims does not increase the plaintiffs' ability to prevail.

 Section 1985(3) requires that plaintiffs establish (1) a conspiracy, (2) motivated by racial or other invidiously discriminatory animus, (3) for the purpose of depriving any person or a class of persons of equal protection of the privileges and immunities under the law, (4) that the conspirators committed some act in furtherance of the conspiracy, and (5) that the plaintiffs were injured. Griffin v. Breckenridge, 403 U.S. 88, 102-04, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). This statute would not apply at all events unless the plaintiffs could show that external parties were involved since the conspiracy requirement is not met by a conspiracy within a single corporate entity. Girard v. 94th Street and Fifth Avenue Corp., 530 F.2d 66 (2d Cir. 1976), cert. denied, 425 U.S. 974, 48 L. Ed. 2d 798, 96 S. Ct. 2173 (1976). Moreover, Section 1985(3) may not be used to redress violations of Title VII. Great American Federal S. & L. Assoc. v. Novotny, 442 U.S. 366, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). Thus, this Section can only play a role in an employment discrimination case when the actions of the defendant in employment discrimination violate the Constitution. As the test for a violation of the Constitution based on employment discrimination is stricter than the test under Title VII, Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) (proof of discriminatory purposes required under Fourteenth Amendment), a claim under Section 1985(3) does not lessen what plaintiffs must prove to show employment discrimination.

 The Underlying Controversy

 Initially nine engineers in the Design Department of the Port Authority's Engineering Staff joined as plaintiffs, each asserting in a psuedo-class action some common form of disparate treatment based on racial discrimination on the part of the supervising personnel of the employer. Extensive pretrial discovery and a scrutiny of the Authority's personnel files as well as depositions of the plaintiffs were taken with telling effect. Five of the nine plaintiffs requested leave following this thorough investigation to dismiss their cases with prejudice and their claims were dismissed on consent accordingly just before or at the opening of the trial. The significance of these surrenders speaks loudly on the pretended broad scale charges of the common discriminatory practice, purpose and style of action of the Authority in the treatment of its employees and the conditions and opportunities in the Engineering Department of the Authority specifically. The nine had banded together as a minority group with some others to seek individual and group redress for alleged discriminatory mistreatment. The collapse of the claims of the majority of the group and their willingness to submit to a dismissal with prejudice on the eve of or at the opening of the trial impacts ...


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