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PAGANUCCI v. CITY OF NEW YORK

March 10, 1992

FRANK PAGANUCCI, MORT ADLER, AUGUSTINE ALOIA, LOUIS C. AMEN, LINDA M. ANDERSON, ALFONSO ANDOSCA, SALVATORE ARDIZZONE, ROBERT ARLUCK, MICHAEL ARMSTRONG, JOSEPH AVERSO, DESMOND P. BAILEY, S. BALESTRIERI, JAMES W. BARD, DANIEL BARKER, KEVIN BARRY, JOSEPH BATTAGLIA, NICHOLAS N. BATTISTA, ANTHONY H. BENVENUTO, KEN BERGMAN, FRANK BERGSTOL, THOMAS P. BLAKE, FRANCIS BOSTELMAN, JOSEPH O. BROUSSEAU, MICHAEL F. BRUNO, JOSEPH BUFFOLINO, KEVIN R. BURTON, JOHN BUTLER, RALPH CAIOLEO, PETER CALABRESE, ANTHONY CALANDRILLO, DONALD CALDERONE, LAWRENCE R. CALLAHAN, KENNETH G. CALVEY, MICHAEL CAMPBELL, WILLIAM CANARY, NOREEN CANAVAN, MICHAEL CARDILLO, MICHAEL CAREY JOHN CARNEY, PHILIP CARTER, ROBERT CHAMBERS, FRANK F. CHIN, JAMES CIACCIA, ROBERT CLANCY, ROBERT E. CLARK, PATRICIA COLLINS, ANTHONY CONCIALDI, SALVATORE CONSTRASTANO, THERESA COYLE, THOMAS R. COYNE, WILLIAM T. DAILY, GARY S. DAVIS, ROBERT J. DE MARTINO, ROBERT E. DEAN, MATTHEW DELLA PERUTA, MICHAEL J. DEVITA, MICHAEL A. DIGILIO, JOSEPH DI PAOLO, STEVEN J. DIGIORGI, RICHARD DILLON, JOHN J. DONNELLY, DAVID K. DUBARRY, THOMAS J. DUNNE, DENNIS EMPOROR, DANIEL ENGEL, PATRICIA ESPINOSA, ANIELLO M. FALANGA, ROBERT FECHER, TIMOTHY H. FINN, JR., MICHAEL FISCINA, ALAN I. FISCHER, TODD FISHER, GARY J. FITZGERALD, THERESA H. FOILES, ROBERT V. FOLEY, NORMAN R. FORD, FRANK FORTE, RICHARD FRICK, KARL GABRIELSEN, FRANK GAETANI, RAYMOND GALLAGHER, FRANK GALLIPANI, SCOTT A. GALLO, JULIA GARATE, JOHN GEARY, RONALD GEORGE, JOSEPH P. GIOCONDO, STEPHEN GIUNTINI, WILLIAM GOELLNER, CHARLES GOETZ, GEORGE GORMAN, DEBRA A. GRAHAME, ANGELO GRANIERO, JOHN V. GRIMES, SUSAN A. HAAS, WILLIAM P. HANLEY, ROBERT G. HARNISCHFEGER, DAVID W. HANSEN, GERARD F. HARRIS, GEOFFREY HART, EDWARD F. HAYES, JAMES G. HEANEY, ROGER F. HECKT, RONALD HIGGINS, WILLIAM HIGGINS, LILLIELYN HIRSCH, LEE C. HOM, CATHERINE H. HULL, DENNIS HULL, LEO ITZKOWITZ, STEVEN JANOVICI, JOSEPH JASINSKI, CATHERINE A. JAY, PAMELA A. JOHNSON, ROBERT J. JORDAN, TIMOTHY P. KANE, FRANCIS J. KEATING, KEVIN KEENAN, TIMOTHY KELLY, PATRICK J. KENNY, WILLIAM J. KINZLER, ROBERT KJARBO, STEPHEN H. KLEIMANN, ROBERT A. KLOOS, KEVEN J. KOCIK, JOHN J. LANIGAN, CHARLES J. LAPPE, PAUL D. LAWRENCE, JAMES T. LIEN, THOMAS W. LIND, MICHAEL S. LITTMAN, JOHN J. LOHSE, ANTHONY LOMBARDO, GEORGE F. LOSONCI, NICHOLAS J. LUCIANO, WILLIAM LUKAS, JAMES T. LYNCH, JOHN E. MAGEE, GEORGE MALLON, RALPH MARCHITELLI, JOHN MASSA, CHRISTOPHER MATEJOV, ROBERT C. MAUTSCHKE EDWARD J. MAY, CHARLES McBRIDE, DENNIS McCABE, TERRANCE McCABE, THOMAS F. McCABE, FRANK McDANIEL, DENNIS J. McDONALD, THOMAS P. McFAZEN, FRANK J. McGUIRE, WILLIAM MCLAUGHLIN, PHILIP McNERNEY, EDMOND McTIGUE, JUAN B. MENDEZ KENNETH MERINGOLD, WILLIAM P. MOLLY, THOMAS MONTERO, JAMES MOOD, JOHN A. MOSCHELLA, BRUCE MURPHY, MICHAEL NEARY, MICHAEL D. NEMOYTEN, JOHN T. NICKLES, STEPHEN NICOTRA, EDWARD J. NOVAK, EDMOND NUGENT, KEVIN T. O'CONNOR, NANCY L. O'CONNOR, PATRICK F. O'CONNOR, JAMES J. O'DONOGHUE, TIMOTHY O'KEEFE, WALTER O'KEEFE, JOHN O'MALLEY, JAMES O'REILLY, ALLYSON G. OPIS, STEVEN D. OSOFSKY, ALAN R. OSTOITS, MARK N. OUNDERKIRK, WILLIAM G. OWEN, JOHN A. PALLADINO, DAVID J. PANETTA, SAMUEL PANUCCIO, THOMAS PAPPAS, NICHOLAS PAQUARELLO, MICHAEL PASQUALE, JOSEPH G. PASTORINO, NICKY PATARIU, ANTHONY PAULINE, ARTHUR PEASLER, JOSEPH PENTANGELO, MARK PETTERSON, ROBERT PEYER, ANTHONY PERKINS, ANTONY PEZZULO, RAYMOND M. PIERCE, LOUIS PIOLI, JOSEPH POLLACK, LARRY PRAINO, CHRISTOS PRIVOLOS RICHARD A. RAGGO, STEPHEN RALKO, JOSEPH C. RASENBERGER, CHARLES F. REGAN, EILEEN REGAN, GEORGE REYNOLDS, FRANCISCO RIOS, THOMAS G. RODAHAN, BENJAMIN ROMANO, WILLIAM ROMANO, JAMES R. ROGETTI, THOMAS V. ROSA, JOHN RUSSO, MICHAEL J. RYAN, THOMAS F. RYAN, MICHAEL RYDER, LEONARDO A. SALERNO, JERRY SALTZMAN, WARREN SAM, MARIANNE C. SAMOTHRAKIS, VINCENT L. SANSERVERINO, FRANK A. SANTAROMITA, RONALD G. SCALZO,STANLEY SCHIFFMAN, CRAIG H. SCHROEDER, MICHAEL SEIDEL, FREDERICK J. SERIO, ROBERT J. SEUBERT, RICHARD SEVERI, WILLIAM G. SLANE, JOSEPH SMIGIEL, ANN R. SOWINSKI, ROBERT SPADACCINI, JOHN SPADARO, GUSTAVO SPAROVICH, LOUIS TELANO, DENNIS J. TERMINELLO, WILLIAM TESLER, CHARLES G. THIEMER, ROBERT TOBUCK, JANET M. TODD-DECKER, CHRISTOPHER P. TORF, MICHAEL TRIMIS, JOHN TURJAK, ROBERT J. UHL, PETER R. VAN WYGERDEN, STEPHEN J. VARGA, RALPH J. VISCIO, WALTER VOSS, JOHN VOTTA II, MICHAEL B. WAGNER, BRIAN WALSH, MICHAEL V. WANG, STEPHEN J. WAWRYK, GREGORY WELCH, ROBERT WILLIAMSON, JOHN WYNNE, ROBERT J. YACKEL, GREGORY J. ZOFREA, HOWARD ALLEN, GARY BERMAN, STEVEN CAIROK, JOSEPH CONCANNON, MICHAEL CONNOLLY, MAURICE DEVITO, ARTHUR FLYNN, KEVIN GRASSING, JAMES C. KELLY, THOMAS P. KELLY, STEVEN KUBICK, ROBERT B. LANGER, HENRY MAHNCKE, JOHN MARCONE, JOHN MAZZOCCHI, PATRICK McGINNIS, SERGIO MIKLUS, KENNETH NILSEN, HENRY PALAYO, ANTHONY REITANO, ROBERT A. SOWINSI, JOSEPH TORRAGROSA, RICHARD SEVIERI, KEVIN SWEENY, RUBIN RIVERA, ALAN MAY, MARC WOLF, WILLIAM SAUNIER, ANTHONY P. CONTENTO, DOMINICK PETRUCELLI, FREDERICK TERMINI, KEVIN RYAN, FLORENCE CIAFFONE and SAMUEL REIVER, Plaintiffs,
v.
THE CITY OF NEW YORK, DOUGLAS WHITE, Personnel Director of N.Y.C., THE N.Y.C. DEPT. OF PERSONNEL, LEE BROWN, Police Commissioner of N.Y.C., and THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, Defendants.



WARD, District Judge.

Plaintiffs move, pursuant to Rule 56, Fed. R. Civ. P., for summary judgment. Defendants the City of New York; Douglas White, Personnel Director of New York City; New York City Department of Personnel; Lee Brown, Police Commissioner of New York City; and the Police Department of the City of New York ("Municipal Defendants") and intervening defendants Hispanic Society of the New York City Police Department ("Hispanic Society") and Guardians Association of the Police Department of the City of New York ("Guardians") (collectively, "Intervenors"), each cross-move for an order denying plaintiffs' motion and awarding summary judgment to defendants and for an order imposing sanctions on plaintiffs. For the reasons that follow, plaintiffs' motion for summary judgment is denied and the cross-motions of Municipal Defendants and Intervenors for summary judgment are granted. Municipal Defendants' application for sanctions is granted and Intervenors' application for sanctions is granted in part and denied in part.

BACKGROUND

 The relevant facts are not in dispute. Plaintiffs are present and former New York City police officers, all of whom took Civil Service Examination number 2548 for promotion to the rank of sergeant ("the Sergeant's Examination"). They assert that Municipal Defendants violated plaintiffs' Fourteenth Amendment rights by promoting persons to sergeant who scored the same or lower than plaintiffs on the Sergeant's Examination while plaintiffs did not receive promotions. Municipal Defendants made the challenged promotions pursuant to a consent decree, settling litigation brought by black and Hispanic police officers, alleging that the Sergeant's Examination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq..

 The New York City Police Department administered the Sergeant's Examination during June 1983 and April 1984. It was taken by 11,899 candidates for promotion to the rank of sergeant. The Department used the results of the examination to compile a list of officers eligible for promotion. Since the Department needed approximately 1,000 new sergeants at that time, a cut-off point was established that would yield the appropriate number of candidates. Although 12.3% of those who took the Sergeant's Examination were black and 8.7% were Hispanic, blacks and Hispanics made up only 2.31% and 4.23%, respectively, of those whose names were placed on the eligible list.

 In the latter half of 1984, the Hispanic Society and the Guardians each brought lawsuits in this Court against the Police Department and other City defendants, alleging that the Sergeant's Examination and the resulting eligible list violated Title VII because the examination had a disparate impact on Hispanic and black candidates and was not job related. The two actions were eventually consolidated before the Honorable Robert L. Carter, in Hispanic Society of the New York City Police Dep't v. New York City Police Dep't, 84 Civ. 6628 (RLC). Groups representing officers on the eligible list were permitted to intervene as defendants, as were various individuals and white ethnic societies representing officers who were not promoted.

 Following discovery, city officials initiated discussions with the Hispanic Society plaintiffs, which resulted in a proposed settlement, which was then presented to the district court for approval. The settlement called for promotion of all of the candidates on the original eligible list and the successive promotion of black and Hispanic candidates who had taken the Sergeant's Examination until the disparate effect of the examination was eliminated. The settlement was conditionally accepted by the district court on February 7, 1986. See Stipulation of Settlement and Order, dated February 7, 1986, entered in Hispanic Society of the New York City Police Dep't v. New York City Police Dep't, 84 Civ. 6628 (RLC) ("Stipulation").

 On April 17, 1986, following notice to the members of the class, a hearing was held regarding the terms of the final settlement. Two individual intervenors filed objections to the settlement. In addition, at the hearing, objections were made by officers who were not on the eligible list but who claimed to have received scores equal to or higher than the black and Hispanic officers to be promoted pursuant to the settlement. Although these officers were not parties to the lawsuit, their attorney (who is also representing plaintiffs in this case) was permitted to argue at the hearing that the proposed settlement violated their right to equal protection of the laws. Judge Carter filed an opinion approving the settlement on June 16, 1986. Hispanic Society of the New York City Police Dep't v. New York City Police Dep't, 42 Fair Empl. Prac. Cas. (BNA) 905, 40 Empl. Prac. Dec. (CCH) P36,385 (S.D.N.Y. 1986). Three hundred and fifty of the non-party objecting police officers appealed the decision.

 On December 30, 1985, suit was filed by a number of police officers who were not placed on the eligible list but who scored at least as high as the lowest scoring minority officer promoted under the interim order. *fn1" In that case, Marino v. Ortiz, plaintiffs argued that the proposed settlement deprived them of equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution. Present counsel for plaintiffs was also counsel for plaintiffs in Marino. The case was assigned to Judge Carter, who dismissed the complaint on April 24, 1986.

 On December 8, 1986, the Court of Appeals for the Second Circuit issued decisions in Hispanic Society and Marino. The appeal in Hispanic Society was dismissed because appellants in that case were not parties to the litigation, and therefore, lacked standing to prosecute the appeal. Hispanic Society of the New York City Police Dep't v. New York City Police Dep't, 806 F.2d 1147, 1154 (2d Cir. 1986). The Court of Appeals noted that the Hispanic Society appellants' lack of standing stemmed from "their steadfast refusal to comply with the requirements of intervention set forth in Fed.R.Civ.P. 24," and formally intervene in the case. Id. at 1153-54. The dismissal of the complaint in Marino was affirmed on the ground that the suit constituted an impermissible collateral attack on a consent decree. Marino v. Ortiz, 806 F.2d 1144, 1147 (2d Cir. 1986). The Court of Appeals in Marino pointed out that appellants not only had notice of the proceedings in Hispanic Society, but actually presented their claims at the fairness hearing held in that case. The Second Circuit's decision in Marino was affirmed by an equally divided Supreme Court, and its decision in Hispanic Society was upheld. Marino v. Ortiz, 484 U.S. 301, 304, 98 L. Ed. 2d 629, 108 S. Ct. 586 (per curiam), reh'g denied, 484 U.S. 1082, 98 L. Ed. 2d 1026, 108 S. Ct. 1064 (1988).

 The following term the Supreme Court, in Martin v. Wilks, 490 U.S. 755, 769, 104 L. Ed. 2d 835, 109 S. Ct. 2180 (1989), held that a non-party's challenge to actions taken pursuant to a consent decree does not constitute an impermissible "collateral attack" on the decree. The Marino plaintiffs then moved in the Second Circuit for an enlargement of time in which to file a petition for rehearing. The Second Circuit denied the request, stating, "the motion for enlargement of time is nothing but an attempt to reopen a final judgment because of a subsequent change in the law." Marino v. Ortiz, 888 F.2d 12, 13 (2d Cir. 1989), cert. denied, 495 U.S. 931, 110 S. Ct. 2172, 109 L. Ed. 2d 501 (1990). The Court noted that plaintiffs in that case had made no showing of a manifest or intolerable injustice:

 
Indeed, they were fully aware of the proceedings leading up to the consent decree in question, and, viewing the proceedings as a whole, it is evident that this collateral attack was necessitated in part by their counsel's mistaken belief that they were parties to the class action.

 Id.

 In addition to the federal lawsuits described above, several proceedings were brought in New York state court challenging the scoring of the Sergeant's Examination under state laws governing civil service examinations. A number of these proceedings were consolidated, and subsequently the state court held that alternative answers were to be considered correct with respect to several questions on the examination. Allen v. Ortiz, 137 A.D.2d 424, 524 N.Y.S.2d 442 (App. Div. 1988). As a result of the ruling in Allen, the Sergeant's Examination was rescored and a new eligible list compiled. Black police officers made up 3.94% of the revised eligible list, while Hispanic officers comprised 5.56% of the revised list. See Affidavit of Francis Smith, filed July 22, 1991 at P4. Promotions were made pursuant to this list in or around May 1988. Additional black and Hispanic police officers were then promoted in order to maintain the proportion of minority police officers promoted pursuant to the Hispanic Society settlement. *fn2"

 Plaintiffs commenced the instant action on March 9, 1990, claiming that they were denied equal protection of the laws because they were not promoted to sergeant when their scores on the Sergeant's Examination were at least equal to some of the black and Hispanic police officers who were promoted. Plaintiffs argue that the Hispanic Society consent decree does not constitute a valid defense to the denial of their right to equal protection, because plaintiffs were not parties to that consent decree. Defendants contend that the challenged promotions were made pursuant to a valid consent decree, and that the Wilks decision did not overrule pertinent Supreme Court precedent permitting race-conscious remedies under certain circumstances. In addition, defendants argue that many of the plaintiffs are barred from proceeding in this case due to their participation in the Marino litigation.

 DISCUSSION

 The standards for granting summary judgment in this Circuit are well-established. A court may grant this extraordinary remedy only when it is clear both that no genuine issue of material fact remains to be resolved at trial and that the movant is entitled to judgment as a matter of law. Rule 56, Fed. R. Civ. P. In deciding the motion, the Court is not to resolve disputed issues of fact, but rather, while resolving ambiguities and drawing reasonable inferences against the moving party, to assess whether material factual issues remain for the trier of fact. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505, 2509-11 (1986)). Only where the entire record would inevitably lead a rational trier of fact to find for the moving party is summary judgment warranted. National Railroad Passenger Corp. v. City of New York, 882 F.2d 710 (2d Cir. 1989).

 While the party seeking summary judgment bears the burden of demonstrating the lack of material factual issues in dispute, Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983), "the mere existence of factual issues -- where those issues are not material claims before the court -- will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp. 758 F.2d 839, 840 (2d Cir. 1985) (per curiam).

 Although the movant faces a difficult burden to succeed, motions for summary judgment, properly employed, permit a court to terminate frivolous claims and defenses, and to concentrate its resources on meritorious litigation. Knight v. U.S. Fire Ins. Co., supra, 804 F.2d at 12. The motion then:

 
is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed. Rule Civ. Pro. 1 . . . Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and ...

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