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BERKMAN v. CITY OF NEW YORK

December 8, 1983

BRENDA BERKMAN, on behalf of herself and a class consisting of all similarly situated women, Plaintiff, against THE CITY OF NEW YORK, EDWARD KOCH, individually and as Mayor of the City of New York, NEW YORK CITY FIRE DEPARTMENT, AUGUSTUS BEEKMAN, individually and as Fire Commissioner of the City of New York, NEW YORK CITY DEPARTMENT OF PERSONNEL, MICHAEL NADEL, individually and as Director of Personnel of the City of New York, THOMAS ROCHE, individually and as former Director of Personnel of the City of New York, CIVIL SERVICE COMMISSION OF THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: SIFTON

MEMORANDUM DECISION AND ORDER

SIFTON, District Judge.

 This action, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1871, 42 U.S.C. § 1983; the fourteenth amendment to the United States Constitution; the Section 296 of the New York Human Rights Law (Executive Law), originally sought declaratory and injunctive relief and damages to redress alleged sex-based discrimination against plaintiff and the class she represents in connection with the physical test portion of New York City's Examination 3040 ("Exam 3040") for the entry level position of firefighter in New York City.

 Plaintiff, Brenda Berkman, passed the written portion of Exam 3040, but failed the physical test portion, which she took on February 22, 1978. The class she represents consists of women who took the written portion of Exam 3040 and were alleged either to have taken the physical portion of Exam 3040 and failed it or to have been deterred from taking it as a result of sex discrimination by defendants. Defendants are the City of New Yoirk, its Mayor, the City's Fire Department and its Commissioner, the City's Personnel Department, its Director and former Director, and the Civil Service Commission of the City of New York. Appearing as intervenors pursuant to this Court's Order of April 10, 1981, are the Uniformed Firefighters Association ("UFU") and the Uniformed Fire Officers Association ("UFOA"), both employee organizations representing current job incumbents.

 The trial of this case was conducted before the undersigned, sitting without a jury in the fall of 1981. In a decision of this Court filed March 4, 1982, the undersigned concluded that the physical portion of Exam 3040 discriminated against plaintiff and the class she represents on the basis of their sex. On March 25, 1982, an order was entered pursuant to that decision prohibiting further use of the eligibility list established pursuant to Exam 3040 except on a showing of compelling necessity, directing the preparation of a new physical exam that did not discriminate against women, and awarding plaintiff interim relief in the form of a directive that the City reserve entry-level firefighter positions for the hiring of up to 45 members of the plaintiff class who remained interested in pursuing a career as firefighters and were found to be qualified for the position.

 The March 25 order directed the parties to attempt to agree upon a procedure for determining which members, if any, of the plaintiff class were qualified to become firefighters. Thereafter, on August 3, 1982, the undersigned approved an agreement between plaintiff and the City with respect to the form of qualifying interim test to be used to determine those members of the class who were entitled to appointment to the reserved positions. *fn1" Both the March 25 and August 3 orders were affirmed on appeal. Berkman v. City of New York, 705 F.2d 584 (2d Cir. 1983).

 The matter is presently before the Court on applications filed in September 1983 by the named plaintiff, Brenda Berkman, and one member of the plaintiff class, Zaida Gonzalez, both of whom passed the qualifying exam, were appointed firefighters, but were thereafter terminated at the conclusion of their probationary period. Both applicants seek reinstatement to the Fire Department on the grounds that their termination violated this Court's orders of March 25 and August 3, 1982, occurred as a result of retaliation against them for pursuit of their remedies under the Civil Rights Act of 1964, as amended, and because of discrimination against them on account of their sex.

 A trial of the issues raised by these applications was held before the undersigned, sitting without a jury, in October 1983.

 For the reasons set forth herein, the applications of plaintiff Berkman and class member Gonzalez for reinstatement are granted, and defendants are directed to reinstate both applicants to the Department, as probationary firefighters, fourth grade, with backpay and all benefits, including seniority, pension, and vacation benefits, that would have accrued to them had they not been terminated. What follows sets forth the findings of fact and conclusions of law which warrant this relief, as required by Rule 52(a) of the Federal Rules of Civil Procedure.

 DISCUSSION

 As noted, both Berkman and Gonzalez took and passed the qualifying physical examination agreed upon between plaintiff and the City and approved by this Court in August 1982. Against a qualifying time set by the parties of 4 minutes, 9 seconds, Berkman performed the test in 2 minutes, 51 seconds -- the third fastest time among the women taking the examination. Gonzalez performed the test in 2 minutes, 58 seconds, and was the fourth fastest of the women taking the examination.

 Both Berkman and Gonzalez were appointed to the Fire Department on September 24, 1982, along with 39 other women who had taken and passed the qualifying exam. Following their appointment, both Berkman and Gonzalez were assigned for six weeks of training to the Department's Training Academy on Randall's Island. Both women received 3 "deficiency slips" during the course of their training, far fewer than those of most firefighters taking the course. Both were among the first 11 women graduating at the end of the course in October. (The other women qualifying for appointment were held back for additional training.) Both women were selected to demonstrate their skills at the ceremony marking their graduation from the Training Academy. *fn2"

 Following their graduation from the Training Academy, both Berkman and Gonzalez were assigned as probationary firefighters, fourth grade, to engine companies. Berkman was assigned to Engine Co. 17 on the Lower East Side of Manhattan. Gonzalez was assigned to Engine Co. 60 in the South Bronx. Both women did well during the first seven weeks of their assignments and received satisfactory ratings on the first of four periodic evaluations prepared by the officers of their engine companies. *fn3" However, subsequent to a meeting in March 1983 between the Fire Commissioner and the captains of all companies to which women firefighters were assigned in which it was announced that the Department was prepared to terminate women firefighters with a documented history of unsatisfactory performance as probationers, each began to encounter the difficulties that eventually gave rise to these applications. Whether these difficulties arose as a result of retaliatory discrimination against them on account of their sex is the principal issue to be decided on these applications.

 Having heard the evidence at trial, both from the terminated firefighters and from those whose evaluations led to their termination, much of which was conflicting, I am persuaded by a clear preponderance of the credible evidence that neither Berkman nor Gonzalez was given a fair opportunity to demonstrate her ability to become a firefighter. On the contrary, I conclude that the officers of the Department responsible for their training and evaluation instead deliberately set out to re-examine Berkman's and Gonzalez" physical capacities to be firefighters -- a determination already made as a result of their successful completion of the qualifying exam. This violation of this Court's orders was, moreover, I find, visited on these two class members in retaliation for the prominent role both assumed in pursuing their rights under the Court's orders and because of intentional discrimination against each on account of their sex.

 What is first of all apparent from the undisputed evidence introduced at trial is that the Fire Department failed lamentably to prepare its officers and members of the extraordinary task of integrating women into its previously all-male ranks. Indeed, the Department's efforts in this regard appear to have been by and large confined to a directive to install locks on bathroom doors in the firehouses to which women were assigned, as well as privacy screens for use around the women firefighters' bunks and lockers. Beyond these minimal efforts, the Department did little more than issue an ambiguous oral directive that the women be treated no differently from men -- a directive which so far from stemming discrimination in fact acted affirmatively to encourage it. *fn4"

 Apart from this directive, no written materials or oral directives were issued by the Commissioner or Chief of the Department to either officers or men concerning what problems to accept or how to confront them. Although possessed of brochures and a film on the subject of sex discrimination and aware of the availability of the technique of sensitivity training as a means of achieving successful integration, none was distributed or used. The Department's Equal Opportunity officer was given little, if any, role to play or duties to perform in achieving the successful integration of women into the Department. Even when specific instances of sexual harassment and discrimination were brought to the attention of the Commissioner by plaintiff and the leaders of another fraternal organization, the Vulcan Society, the Commissioner declined to issue directives calculated to halt or minimize them. Departmental investigations of such incidents were either terminated on the basis of evaluations of the conflicting statements of the immediate participants, without testimony under oath, or permitted to drag on without resolution as of the date of trial. Nothing was done to assure that the extraordinarily lax and generalized system of evaluating the progress of probationary firefighters was administered rigorously and concretely in the case of women probationers so as to avoid the introduction of prohibited discrimination in the evaluation and training to the women firefighters. *fn5" An institutionalized system of senior firefighters "hazing" probationary firefighters was permitted to operate unimpeded despite the obvious opportunities for sexual discrimination and abuse which such a system provided the women's all-male seniors. In the face of the unique forms of cooperative effort, joint social activity, and communal life developed in the City's firehouses in response to the unusual demands of the job, the Department did next to nothing to foresee and prevent retaliation and sexual harassment which was one obviously foreseeable response to the disruptions of everyday life in the workplace caused by women joining the fire force. *fn6"

 As a result of this minimal effort on the part of the Department's senior officers, both Berkman and Gonzalez were subjected throughout their probationary period to extensive sexual abuse in the form of unimpeded hazing. In Berkman's engine company, crude sexual comments appeared regularly in the form of graffiti and cartoons containing blatant sexual mockery on the communal bulletin boards and living space of the firehouse. While Berkman's superior officers disclaimed knowledge of the pointed sexual innuendo of these efforts, many bordering on the obscene, their testimony on this point is incredible. *fn7" A bra marked with Berkman's nickname, a teeshirt mocking her, and crude graffiti questioning her sexual preferences and courage were claimed to have either escaped the attention of her superiors or to have been immediately removed without being observed by the officers in the face of credible testimony as to their continued display in the cheek-by-jowl living accommodations of the firehouse. In the case of Gonzalez, prophylactic devices and a wet vibrator were placed in her bed; her earrings, underwear, and badge were stolen from her locker; her helmet disappeared; and, on one occasion, she discovered that her air hose had been disconnected from her air tank. In addition, in Gonzalez" case, physical sexual molestation occurred and was tolerated, meriting separate discussion below. While it is not the point of the present applications for reinstatement to halt these practices in the Department, there is every reason to believe that the same discrimination that permitted these practices to occur and continue itself entered into the other more important matters at hand, namely the training of the applicants and their evaluations.

 Beyond this tolerance on the part of both applicants' superior officers for the day-to-day sexual harassment to which the applicants were subjected throughout their probationary period, each also met with extraordinary difficulties in achieving integration into the unique forms of communal living that are characteristic of the firefighters' workplace. Berkman's bed was not made by the firefighters assigned this task as part of their regular duties. She received little help on cooperative tasks in the firehouse. A meal prepared by Gonzalez was thrown into the garbage by the men in her firehouse. Both were, in the language of the Department, "put out of the meal," meaning that they were denied the opportunity to share in the traditional communal effort to use the cooking facilities of the firehouse to enjoy a common repast. Both found it impossible to arrange, on any consistent basis, "mutuals" -- a system of work exchange developed over the years to accommodate firefighters' personal needs with the Department's system for assigning tours of duty. While defendants disclaimed any authority to interfere in these institutionalized forms of communal accommodation, it is clear from all of the evidence presented that the applicants' superior officers in fact possessed ample power to deal with the discriminatory and retaliatory animus behind these attempts to isolate the women firefighters. *fn8" In this connection, it is noteworthy that Berkman's commanding officer testified that he recognized she had been put out of the meals for going to Court to protect her rights. What is also clear from all of the evidence is that the minimal nature of the effort made by the Department in this regard itself had its origin in intentional retaliatory discrimination on the part of the applicants' superior officers. Further, as discussed below, it is clear that this intentional discrimination went beyond a failure to integrate the women into the workplace and, in fact, infected as well their evaluation and training to be firefighters.

 Given the extraordinary laxness with which the City proceeded to integrate women into the ranks of its firefighters, it is only surprising -- and testimony to the basic decency of the rank-and-file members of the Department -- that more incidents of discrimination have not emerged. *fn9" What is not surprising is that two of the women most prominent in their roles as spokespersons for the class *fn10" were the ...


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