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)
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.
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 parties will fairly and
adequately protect the interests of the class.
Fed.R.Civ.P. 23(a)(1-4) (1990).
This case presents a situation in which class certification
is consistent with Fed.R. Civ.P. 23. The underlying claim
concerns the legality, under Title VII, of a promotional
examination given in 1986-1987, the results of which were to be
used to make all promotions to the position of Sergeant for a
three-year period from 1987 through 1990. The proposed class,
consisting of the Black officers who took that examination,
totals more than sixty, which is large enough to make joinder
impracticable. Whether or not the test is unlawful under Title
VII, the central question in this case, is a question common to
the claims of all the putative class members including the
named plaintiffs. Although some of the plaintiffs have slightly
different bases for their claims against the Port Authority and
P.B.A., the facts and claims adduced represent common questions
of law and fact. These questions turn on the allegedly
disparate impact of the Port Authority's testing procedures on
minority promotion opportunities. The denial of preliminary
injunctive relief does not alter the fact that the Port
Authority's use of the exam is clearly action taken "on grounds
generally applicable by the class" and that if successful, the
class may be entitled to "final injunctive relief."
The Port Authority maintains that certification of the
plaintiffs as a class is unnecessary if the Court determines
that the action is not meritorious, granting summary judgment
in defendants' favor. I disagree. "In determining the propriety
of a class action, the question is not whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on the
merits, but rather whether the requirements of Rule 23 are
met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94
S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974) (quoting Miller v.
Mackey International, 452 F.2d 424, 427 (5th Cir. 1971)).
Because the "Court [must] determine whether a suit denominated
a class action may be maintained as such `[a]s soon as
practicable after the commencement of [the] action. . . .,'"
the constraints of Fed.R.Civ.P. 23 do not permit handling the
merits of claim prior to certification. Id.
Moreover, class certification in this instance will advance
the just and efficient disposition of the underlying claims. If
the class is certified and Waisome prevails on the merits, all
remedial issues may be resolved in a single proceeding. Thus,
with class certification, all non-named Black test takers could
be collaterally estopped from bringing individual claims at
some later date. On the other hand, if the Port Authority
prevails and the class were not certified, then all class
members except the named plaintiffs would be free to file
individual lawsuits challenging the legality of the disputed
examination process. It would further appear that the
plaintiffs are truly representative of the class and that
plaintiffs' counsel will render appropriate representation to
the class members. Thus, the plaintiffs in this action are
hereby certified to proceed as a class.
B. Disparate Impact of Examination Process
The parties agree that the only issue to resolve on the
merits is whether the examination process under challenge had
adversely impacted Black candidates.*fn3
Section 703(a)(2) of Title VII, in pertinent part, states:
It shall be an unlawful employment practice for an
employer — (2) to limit, segregate, or classify
his employees or applicants for employment 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
78 Stat. 255, as amended, 42 U.S.C. § 2000e-2(a)(2) (1982).
"Title VII proscribes not only overt discrimination but also
practices that are fair in form, but discriminatory in
operation." Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct.
2525, 2530, 73 L.Ed.2d 130 (1982) (quoting Griggs v. Duke Power
Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158
(1971)). "Relying on § 703(a)(2), Griggs explicitly focused
upon employment `practices and procedures,' or tests that deny
equal employment opportunity." Connecticut v. Teal, 457 U.S. at
448, 102 S.Ct. at 2531 (citing Griggs v. Duke Power Co.,
401 U.S. at 431, 91 S.Ct. at 853). Title VII clearly prohibits
procedures or testing mechanisms that operate as "headwinds"
for minority promotions. The Griggs Court stated that: "[w]e
found that Congress' primary purpose was the prophylactic one
of achieving equality of employment 'opportunities' and
removing 'barriers' to such equality. 401 U.S. at 429-30, 91
S.Ct. at 852); see New York City Transit Authority v. Beazer,
440 U.S. 568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979)
(prima facie violations of Title VII may be established by
statistical data reflecting employment practices which creates
the essential effect of denying members of one race equal
access to employment or promotion opportunities.)
In order to determine whether a component of a selection
process had an adverse effect, the issue is whether the
disputed component denied minorities, to a disproportionate
degree, the opportunity to be promoted.
A disparate-impact claim reflects the language of
§ 703(a)(2) and Congress' basic objectives in
enacting that statute, to achieve equality of
employment opportunities and remove barriers. . . .
In other words, § 703(a)(2) prohibits ". . .
unnecessary barriers to deprive any individual of
employment opportunities" . . . Congress' primary
purpose was achieving equality of "opportunities"
and removing "barriers to such equality. . . ."
Title VII guarantees these individual plaintiffs
the opportunity to compete equally with white
workers on the basis of job-related criteria.
Connecticut v. Teal, 457 U.S. at 448-51, 102 S.Ct. at 2531-33
(emphasis in original).