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BERKMAN v. CITY OF NEW YORK

October 8, 1985

BRENDA BERKMAN, Plaintiff,
v.
THE CITY OF NEW YORK et alia, Defendants



The opinion of the court was delivered by: SIFTON

AMENDED MEMORANDUM AND ORDER

 This action was commenced in 1979 to remedy alleged discrimination against women in the selection of New York City Firefighters in violation of 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; and the New York Human Rights Law.

 Plaintiff sued on her own behalf and as representative of a class of women who took and passed the written portion of the qualifying entry-level test for firefighters administered in 1977 ("Exam 3040") and, thereafter, either took and failed or were deterred from taking the physical portion of that test. On July 10, 1980, this Court determined that the action could be maintained by plaintiff on behalf of a class of women so described.

 Trial of the action occurred in 1981, and on March 4, 1982, this Court determined that Exam 3040 violated Title VII. Berkman v. City of New York, 536 F. Supp. 177 (E.D.N.Y. 1982), aff'd, 705 F.2d 584 (2d Cir. 1983). As a result, the Court directed defendants to hire up to 45 class members found to be qualified pursuant to a special qualifying examination to be agreed upon between the parties or, in the absence of agreement, to be determined by the Court. In addition, the Court directed defendants to commence forthwith preparation of a new qualifying exam that did not discriminate against women. On March 25, 1982, the Court entered a supplemental order directing the parties to cooperate in an effort to reach an accord as to the new selection procedure.

 In August of 1982 the Court approved an agreement between the parties with respect to the qualifying test to be used as a basis for selecting the class members to be appointed to the fire department pursuant to the Court's prior decision. This test was administered to interested class members in September 1982, and from the class members passing the examination, some 38 women became firefighters.

 Efforts to reach agreement with regard to the content of a new physical test for all entry-level firefighters were less successful. Accordingly, in October 1982, defendants presented a proposed new test to the Court for approval, and in January and February 1983 evidence was presented with respect to the validity of the new test. At the conclusion of seven days of testimony on the subject, the Court adjourned proceedings without a date to permit the parties to explore further the possibilities of arriving at an agreement as to the contents of the new test. By May 1983, with no agreement reached, defendants, out of concern for the age of the list of persons eligible for appointment created from the previous Exam 3040, *fn1" proposed to proceed with the administration the new test (Exam 1162), which thereafter occurred over a period of several months.

 During this same period of time, in September 1983, plaintiff and another class member, Zaida Gonzalez, were terminated at the conclusion of their probationary period ostensibly because of their poor performance as probationary firefighters. A motion made by plaintiff to compel both class members' reinstatement was heard by this Court in October 1983, which, on December 8, 1983, found that the two women had been subjected to intentional discrimination on account of their sex and directed their reinstatement. Berkman v. City of New York, 580 F. Supp. 226 (E.D.N.Y. 1983).

 Following the completion of the administration of the new test, plaintiff moved in June 1984 to enjoin the promulgation of a new eligibility list derived from it pending the completion of hearings with regard to the validity of the exam. On July 6, 1984, this Court entered an order restraining the promulgation of the eligibles list and appointments from it without prior court order, upon a showing of compelling necessity, pending determination of the validity of the exam. After further efforts to resolve the issues presented by the new test were aborted, hearings resumed and continued through the spring of 1985.

 Based on the evidence adduced at the hearings with respect to the new exam, I conclude that it comports in general with the requirements of this Court's decision of March 1982 with the exception of its scoring which purports to distinguish between qualified candidates to a degree of exactness not consistent with the lack of precision inherent in the exam. Accordingly, defendants are authorized to promulgate an eligibles list created from Exam 1162 and to make appointments therefrom in the manner set forth below. What follows sets forth the findings of fact and conclusions of law on which these determinations are based as required by Rule 52(a) of the Federal Rules of Civil Procedure.

 1. Standing. The first issue requiring consideration is the standing of plaintiff to seek a determination that Exam 1162 does not comply with this Court's orders directing the preparation and use of a new physical exam for entry level firefighters which does not discriminate against women. I conclude plaintiff has standing.

 The decree which plaintiff seeks to enforce is one she obtained in protracted litigation in which she has consistently taken an active role both to secure her own rights and those of other class members. No suggestion has been made that she lacked standing to obtain the portions of the decree she now seeks to enforce, see Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 3331, 82 L. Ed. 2d 556 (1974); Gilmore v. City of Montgomery, 417 U.S. 556, 570 n.10, 41 L. Ed. 2d 304, 94 S. Ct. 2416 (1974). Nor has any argument been advanced that this Court lacks the jurisdiction retained in the original decree "to secure compliance with [the Court's original] order . . . [and] for consideration of such further interim or remedial relief as may be necessary and appropriate." See, e.g., Green v. County School Board, 391 U.S. 430, 439, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968); Guardians Ass'n of New York City Police, Inc. v. Civil Service Commission of New York, 630 F.2d 79, 109 (2d Cir. 1980), cert. denied, 452 U.S. 940, 69 L. Ed. 2d 954, 101 S. Ct. 3083 (1981); Davis v. Board of Education, 674 F.2d 684, 680 (8th Cir.), cert. denied, 459 U.S. 881, 74 L. Ed. 2d 146, 103 S. Ct. 178 (1982).

 Both objectively and subjectively, plaintiff has demonstrated a real and concrete interest in assuring that she and her fellow class members have a non-discriminatory work environment in which to carry out their functions as New York City firefighters, an environment which would be substantially undermined if the next class of women applicants for the position of entry-level firefighters are deprived of an opportunity to join the ranks because of their sex.

 As already noted, there are now less than 40 women firefighters in New York City out of a total of approximately ten thousand. Because of the nature of the department's organization, no more than one woman firefighter has been assigned to any firehouse. As also previously noted, plaintiff herself and at least one other female firefighter were, after their appointment, subjected to intentional discrimination based on their sex in the all-male firehouses to which they were assigned. See Berkman v. City of New York, supra, 580 F. Supp. 226. Thus, plaintiff and the class she represents face the prospect of losing much if not all they gained if, as a result of discrimination in further hiring, they are left as an insular minority of women firefighters who "slipped through the [Department's] allegedly discriminatory screening practices." See Gray v. Greyhound Lines East, 178 U.S. App. D.C. 91, 545 F.2d 169, 173, 175-76 (D.C. Cir. 1976); Chicano Police Officer 's Ass'n v. Stover, 526 F.2d 431, 437 (10th Cir. 1975), vacated on other grounds, 426 U.S. 944, 96 S. Ct. 3161, 49 L. Ed. 2d 1181 (1976), standing aff'd, 552 F.2d 918, 921 (10th Cir. 1977).

 Contrary to the argument of defendants and intervenors, this is not a case like Allen v. Wright, supra, 104 S. Ct. at 3331, in which a plaintiff asserts no more than the stigmatic injury which she shares with any other woman seeking to work for the New York City fire department. Here, plaintiff has suffered injury not only in being denied appointment by virtue of a prior discriminatory entrance exam, but thereafter by discrimination in the essentially male-only workplace in which she functions, resulting in her termination. By her efforts to ensure that Exam 1162 is non-discriminatory, she seeks to ensure that she will preserve the gains she has won as a result of the earlier trial. The presence of increased numbers of qualified women in the workplace will demonstrate, in a fashion in which no judicial decree can be expected to, that hostility towards women firefighters is misplaced and furnish witnesses ready and willing to speak out against continued discrimination by defendants and their employees.

 2. Disparate Impact. This Court's earlier decree required defendants to prepare a new physical exam for entry-level firefighters which did not discriminate against women. Accordingly, it is appropriate to consider whether the results of the exam present a prima facie case of sex discrimination and, if so, whether that prima facie appearance of discrimination may be explained by the requirements of the job. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971); Alb ...


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