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WAISOME v. PORT AUTH. OF NEW YORK

January 29, 1991

FELIX WAISOME, ET AL., PLAINTIFFS,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND THE PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC., DEFENDANTS.



The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:

MEMORANDUM & ORDER

Plaintiff Felix Waisome, et al. commenced this action for injunctive and declaratory relief against defendants Port Authority of New York and New Jersey ("Port Authority") and the Port Authority Police Benevolent Association, Inc. ("PBA"), claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, 2000e, et seq., as well as the Civil Rights Act of 1866, 42 U.S.C. § 1981, 1983. Specifically, Waisome seeks relief based on allegedly unlawful selection criteria employed by the Port Authority for police promotions to the rank of Sergeant which had an adverse impact on himself and other like Black applicants. On February 24, 1988, two days after the complaint in this action was filed, Waisome moved for a preliminary injunction to enjoin the Port Authority's continuation to select candidates from a promotion list developed based on the disputed selection criteria. On October 14, 1988, I denied the motion for a preliminary injunction because a showing of irreparable injury was lacking. Waisome now moves pursuant to Fed.R. Civ.P. 23 for an order certifying this proceeding as a class action.*fn1 Waisome, apparently inadvertently failed to raise the class certification issue at the preliminary injunction stage and seeks to correct the omission now. In addition, Waisome moves pursuant to Fed.R.Civ.P. 56 for partial summary judgment on the issue of Port Authority's liability. The Port Authority, in turn, cross-moves for summary judgment dismissing the complaint. Further, Port Authority asks that the merits of the claims be addressed before the class is certified.

STATEMENT OF FACTS

On July 11, 1986, the Personnel Department of the Port Authority announced the commencement of an examination process for the purpose of establishing a list of Port Authority police officers eligible for promotion to the rank of Sergeant. Plaintiff's 3(g) Statement ("Plaintiff's 3(g)") ¶ 4.*fn2 In order to be eligible to participate, candidates for promotion were required to have at least two years in grade (including Academy training) as a Port Authority police officer. Each candidate was required to be actually working as a police officer as of the first date of the written test. Defendant's Cross-Motion, Exh. 1.

The selection process for placement on the "Eligible List" consisted of three basic components. The first consisted of a written test in order to "measure knowledge of the law, police supervision and social and psychological problems in police work." The second component was an oral test to "measure judgment and personal qualifications." The third component was a performance appraisal consisting of two parts — a supervisory performance rating and a score based on the candidate's attendance record. Plaintiff's 3(g) ¶¶ 6, 7.

The written examination for police officers was administered on September 6, 1986 and a make-up test was administered for the written exam on September 20, 1986. Plaintiff's 3(g) ¶ 9. In mid-November, 1986, candidates were notified regarding their scores on the written component and given until December 19, 1986, to appeal the results. By January 8, 1987, all the appeals taken were completed. Plaintiff's 3(g) ¶ 9. The individual oral examinations were administered between January 26, 1987 and February 13, 1987. The performance appraisal process began on March 2, 1987 and was completed by March 20, 1987. Plaintiff's 3(g) ¶ 11. Performance appraisal ratings were factored into the total test score and the three-year eligibility list was issued on March 30, 1987. Plaintiff's 3(g) ¶ 11.

The passing score for the written examination was 66% and the passing score for the oral was 69.9%. Plaintiff's 3(g) ¶ 8. A passing score on the written was a prerequisite to proceed to the oral examination. In turn, a passing score on the oral was required to proceed to the performance appraisal. Plaintiff's 3(g) ¶ 8. The weights accorded to the three components of the selection process were 55% for the written examination, 35% for the oral examination and 10% for the performance appraisal process. Plaintiff's 3(g) ¶ 7.

A total of 617 police officers (including detectives) participated in the selection process. Of these officers, 508 were White and 64 were Black. Plaintiff's 3(g) ¶ 14. A total of 539 participants passed the written examination. Of those who passed the written exam, 455 were White and 50 were Black. Plaintiff's 3(g) ¶ 14.

Of the 539 successful candidates on the written examination, 531 participants took the oral examination. Of those who either decided not to or could not proceed further, 7 were White and 1 was Black. Plaintiff's 3(g) ¶ 21. Of the 531 participants who took the oral examination, 448 were White and 49 were Black. Plaintiff's 3(g) ¶ 23. Of the 531 participants, 310 passed the oral exam. Of those who passed, 258 were White and 33 were Black. Plaintiff's 3(g) ¶ 22. On the oral examination, the Black pass rate was 67.35%. This rate was 116.97% of the White pass rate of 57.58%. Plaintiff's 3(g) ¶ 22. Of the White candidates who participated in both the written and the oral examination, 51.70% passed (258 divided by 499) and of those Black candidates who participated in both oral and written examinations, 51.56% (33 divided by 64) passed. Defendant's 3(g) ¶ 5.

The eligibility list expired on March 30, 1990; 79 promotions had been made from the list and the 85th candidate on the list had been reached. The promoted officers who participated in the entire testing process included 70 Whites, 5 Blacks and 2 others. Plaintiff's 3(g) at 10-11. Two individuals who were "grandfathered" onto the list also accepted promotions, both were White.

DISCUSSION

A. Certification as a Class

The prerequisites to a class action, in the conjunctive are:

  (1) the class is so numerous that joinder of all
  members is impracticable, (2) there are questions
  of law or fact common to the class, (3) the claims
  or defenses of the representative parties are
  typical of the claims or defenses of the class,
  and (4) the representative ...

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