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