The opinion of the court was delivered by: WEINSTEIN
Plaintiffs, sixteen Black and Hispanic employees of the Suffolk County Department of Sheriff, presently hold the titles of Correction Officer, Sergeant and Lieutenant. They contend they have been discriminated against on the basis of race, color and national origin in job assignments and employment conditions. They are suing the Sheriff and the County of Suffolk under federal laws prohibiting discrimination in employment on the basis of race, color, or national origin. See § 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. They also sue on the theory that the same defendants violated their civil rights. 42 U.S.C. §§ 1983, 1981, 1985(c).
Plaintiffs have not proved that they were assigned to duty or denied assignment, pay, or other conditions of employment because of their race, color, or national origin. They have proved by a substantial preponderance of the evidence that their conditions of employment have been inferior. They have regularly been defamed, harassed and demeaned because of their race, color and national origin by their co-employees; defendants have ignored or failed to take reasonable steps to prevent these abuses.
The Title VII issues were tried by the bench. Simultaneously, a jury tried the 1983 claims and found for three of the sixteen plaintiffs. This memorandum is directed to the Title VII claims.
Within l80 days of the occurrence of defendants' unlawful employment practices, four of the sixteen plaintiffs filed timely charges with the Equal Employment Opportunity Commission and received right-to-sue letters. See 42 U.S.C. 2000e-5(f) (1); Delaware State College v. Ricks, 449 U.S. 250, 256-57, 261, 101 S. Ct. 498, 503, 66 L. Ed. 2d 431 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 458, 95 S. Ct. 1716, 1719, 44 L. Ed. 2d 295 (1975). Plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23(a) was denied because the putative class was not so large that joinder of all plaintiffs would be impracticable. Defendants contend that the claims of plaintiffs who had not filed charges with the EEOC as required by Title VII should be barred.
All plaintiffs need not file administrative charges as a prerequisite to suit so long as the claims of discrimination are sufficiently similar and "right to sue" letters have been issued for reasons applicable to all plaintiffs. See, e.g., Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1381 (11th Cir. 1983); DeMedina v. Reinhardt, 222 U.S. App. D.C. 371, 686 F.2d 997, 1012 (D.C. Cir. 1982); Allen v. United States Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 882-83 (8th Cir.), cert. denied, 434 U.S. 891, 98 S. Ct. 266, 54 L. Ed. 2d 176 (1977); cf. Kirkland v. Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir. 1980) (no need for plaintiff to acquire "right to sue" letter for subsequent, related incident of discrimination); but see Schulte v. State of New York, 533 F. Supp. 31, 34 (E.D.N.Y. 1981). The filing requirement is not jurisdictional. Zipes v. Trans World Airlines, Inc. 455 U.S., 385, 397-98, 102 S. Ct. 1127, 1134, 71 L. Ed. 2d 234 (1982).
The cases cited by defendant are unpersuasive. In Inda v. United Air Lines, Inc., 565 F.2d 554 (9th Cir. 1977), cert. denied, 435 U.S. 1007, 98 S. Ct. 1877, 56 L. Ed. 2d 388 (1978), the Ninth Circuit refused to invoke the single filing rule to benefit plaintiffs who had not filed with the EEOC and who sought to rely on prior filings in separate lawsuits. Hodge v. McLean Trucking Co., 607 F.2d 1118 (5th Cir. 1979) (per curiam), involved would-be intervenors who had not filed with the EEOC and who sought to intervene in order to save the case of a plaintiff who failed to establish any discriminatory act within 180 days of filing. Schulte v. State, 533 F. Supp. 31 (E.D.N.Y. 1981), while on point, did not discuss the relevant case law. Schulte is especially difficult to understand in light of the uncontraverted evidence that plaintiff had been told by the EEOC that filing separately would be unnecessary. Id. at 34.
Neither the Supreme Court nor the Second Circuit has addressed the issue. There is no point in requiring a wholly fruitless administrative application. The discrimination claims of plaintiffs who filed with the EEOC are sufficiently similar to those of plaintiffs who did not file to allow all plaintiffs to maintain an action under Title VII.
Defendants assert that plaintiffs cannot maintain actions under both Title VII and 42 U.S.C. § 1983. The two statutory claims are not mutually exclusive. See, e.g., Daisernia v. State of New York, 582 F. Supp. 792, 795 (N.D.N.Y. 1984); cf. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463, 95 S. Ct. 1716, 1720-21, 44 L. Ed. 2d 295 (1975) (remedies available under Title VII and § 1981 separate, distinct and independent); but see Talley v. City of Desoto, 37 F.E.P. Cases 375 (N.D. Tex. 1985).
Defendants are correct, however, that both causes of action could not be submitted to the jury for decision. Plaintiffs' claims under Title VII are equitable in nature and must be decided by the court. See, e.g., Lincoln v. Bd. of Regents, 697 F.2d 928, 934 (11th Cir.), cert. denied, 464 U.S. 826, 104 S. Ct. 97, 78 L. Ed. 2d 102 (1983); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Cox v. Athena Cablevision, 558 F. Supp. 258, 260 (D.C. Tenn. 1982); Daniels v. Lord & Taylor, 542 F. Supp. 68, 69 (D.C. Ill. 1982); Dadas v. Prescott, Ball & Turben, 529 F. Supp. 203, 204-05 (D.C. Ohio 1981); see also Great American Federal Savings & Loan v. Novotny, 442 U.S. 366, 375 & n. 19, 99 S. Ct. 2345, 2350, 60 L. Ed. 2d 957 & n. 19 (1979) (citing cases).
Plaintiffs' 1983 claims for damages to compensate for hurt feelings, stigma and humiliation resulting from violation of their constitutional rights were submitted to the jury after a three-week trial. For the reasons stated orally on the record, the court denied defendants' motion to dismiss the complaint. Applying a three-year statute of limitations, the jury was instructed to consider only those claims of discrimination based on incidents occurring after December 30, 1979. See, e.g., Wilson v. Garcia, 471 U.S. 261, 105 U.S. 1938, 85 L. Ed. 2d 254 (1985) (applicable statute of limitations under section 1983 is state statute for personal injury suits). The jury found for some of the plaintiffs against defendants and awarded modest damages totaling 1,000.
The facts would have warranted a punitive damage instruction against the Sheriff, but not against the County. Cf. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 27, 69 L. Ed. 2d 616, 101 S. Ct. 2748, (1981). Plaintiffs, however, sought no punitive damages against the Sheriff. Nor did plaintiffs claim damages for racial harassment on the job under any state tort theory.
II. RECOVERY UNDER TITLE VII
Section 703(a) of the Civil Rights Act of 1964 forbids discrimination in "conditions . . . of employment because of . . . race, color . . . or national origin." As codified in Section 2000e-2 of Title 42, United States code, the statute provides in relevant part:
(a) It shall be an unlawful employment practice for an employer --
(i) . . . to discriminate against any individual with respect to his... terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(ii) to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.
The claimed violations of Title VII rest on two separate factual patterns: disparate treatment in job assignments and a racially hostile job environment. With respect to the first claim, Gilbert v. City of Little Rock, 722 F.2d 1390, 1395 (8th Cir. 1983), cert denied, 466 U.S. 972, 104 S. Ct. 2347, 80 L. Ed. 2d 820 (1984), analyzed a similar problem--alleged disparate treatment of police officers in the imposition of disciplinary measures. As in that case, plaintiffs have not carried their burden of persuasion. The court finds that assignment to jobs are made on the basis of the officers' capacity and experience and the needs of the correction facility. See United States v. City of buffalo, 457 F. Supp. 612, 635-36 (W.D.N.Y. 1978), modified on other grounds and aff'd, 633 F.2d 643 (2d Cir. 1980). There is no claim of discrimination in initial hiring or in promotions to higher rank.
It is well-settled that a "working environment dominated by racial hostility and harassment constitutes a violation of Title VII, regardless of any other tangible job detriment to minority employees." Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1983), cert. denied, 466 U.S. 972, 104 S. Ct. 2347, 80 L. Ed. 2d 820 (1984); see also Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S. Ct. 2058, 32 L. Ed. 2d 343 (1972).
To make out a violation of Title VII based on racial harassment, two conditions must be met -- a pattern and failure of the employer to take reasonable steps to stop the abuse. EEOC v. Murphy Motor Freight Lines, Inc., 488 F. Supp. 381, 384-85 (D. Minn. 1980).
a. Pattern of Discriminating Conditions
Plaintiffs must show that more than a few, isolated incidents of racial harassment have taken place. Id. at 384; compare Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88 (8th Cir. 1977) (per curiam) (casual conversation not enough) with United States v. City of Buffalo, 457 F.Supp 612, 631 (W.D.N.Y. 1978) (Title VII protects against psychological impact of racially charged working environment), modified on other grounds and aff'd, 633 F.2d 643 (2d Cir. 1980).
The proof establishes conclusively that plaintiffs have been subject to continuing verbal and other abuse by some fellow officers. Demeaning epithets have been regularly used in their presence and are routinely directed towards them by fellow officers. Scurrilous statements and cartoons are frequently posted on official bulletin boards and places frequented by plaintiffs. See, e.g., Exhs. 9, 10, 12, 13, 14, 15A, and 38 attached. (Exhibit 11 is omitted as too offensive to appear in a published opinion.)
Plaintiffs have repeatedly been mimicked in derogatory ways. For example, the court finds that in January 1983 White correction officers dressed a Hispanic inmate in a straw hat, sheet, and a sign that read "Spic." The White officers referred to the inmate as "Ramos' son." Officer Ramos complained to his duty Lieutenant about the incident and also wrote an incident report to Sheriff Finnerty, Warden Romano, Deputy Warden Flammia, Chief of Staff Antoncic and Duty Lieutenant Hemindinger. Lieutenant Hemindinger called Officer into his office and accused Ramos of trying to "make waves." Officer Pritchard then entered Hemindinger's office and told Ramos to change the incident report; he told Ramos, "we know how to take care of fellows like you."
Following his filing of the incident report, Ramos' car was vandalized, and he received harassing phone calls at his home at all hours of the day and night. Several days after Ramos filed the report, Chief of Staff Antoncic approached Ramos and told him that an investigation had revealed that the incident never occurred. At this point, Ramos produced photos of the Hispanic inmate, along with the hat and sheet and was told to see Internal Affairs.
In May l983 Ramos was informed that there would be a civil service hearing in June regarding the incident. Once the hearing date was set, Ramos was further harassed by White correction officers. They called him "Spic," pressed racially derogatory literature on him and made statements such as "You're lucky to have a job. We'll get you," "If we don't pray together we don't stay together." Ramos testified at the hearing, but was never officially notified of what action, if any, would be taken against the accused officers. When he returned to the prison Ramos was greeted by a sign that read "We have the spic. We won." White officers changed "we won, we won, we have the spic." These White officers informed Ramos that the accused officers had been exonerated.
In 1981 Officer Ramos and Officer John Hammond met with Alphonse Anderson, the Suffolk County Affirmative Action Officer. They complained about discrimination in job assignments and racial harassment. Anderson promised that he would visit the prison and investigate their complaints. Some time later, Ramos saw Anderson at the prison. Ramos asked for permission to speak with Anderson, but his Sergeant told Ramos to go to lunch. Several weeks later Ramos was called into Chief of Staff Antoncic's office. Antoncic asked Ramos "What are you doing to me?" Ramos described the injustices that he felt needed addressing.
In January of 1981 Officer Ramos showed Warden Romano and Deputy Warden Flammia a "Spic and Span" cut-out and a Ku Klux Klan "application" that he had received. Ramos suggested that a memorandum be posted prohibiting such harassment. While Flammia promised to speak to each crew about such conduct, he never did so, nor was any memorandum posted warning against such activities.
As a result of his frequent complaints of racial harassment, Ramos has been shunned by many White correction officers. He often has to eat by himself and does not receive the full cooperation of White officers, making his job more dangerous and stressful. On one occasion, the security squad took so long to respond to Ramos' call for help that he was assaulted.
Similarly, Officer Snell testified that when he has asked White correction officers stationed in the lobby to open the tier doors so that he could exit and use the officers' restroom, the White officers have refused, making comments such as "use the toilet (in there), nigger." Other witnesses related similar experiences. The court credits this and other testimony of ongoing demeaning incidents that increase the stress of Black Officers' employment.
It is apparent that plaintiffs were "subjected to vicious, frequent, and reprehensible instances of racial harassment . . . in several guises." Equal Employment, Etc. v. Murphy Motor Freight Lines, Inc., 488 F. Supp. 381, 384 (D. Minn. 1980). See also, e.g., Gilbert v. City of Little Rock, Ark., 722 F.2d 1390, 1394-95 (8th Cir. 1983), cert. denied, 466 U.S. 972, 104 S. Ct. 2347, 80 L. Ed. 2d 820 (1984); United States v. City of Buffalo, 457 F. Supp. 612, 635 (W.D.N.Y. 1978), modified on other grounds and aff'd, 633 F.2d 643 (2d Cir. 1980). There was a "concerted pattern of harassment" by some of the correction officers. Fekete v. United States Steel Corp., 353 F. Supp. 1177, 1186 ...