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August 25, 1992

FREDDIE GUINYARD, WILLIE MOORE, BILL GASKIN, CHARLES CASEY, HAROLD EVANS, VALORIE JACKSON, OTIS JAMES, and JOSEPH NEGRON Plaintiff, against CITY OF NEW YORK, EDWARD I. KOCH, in the official capacity as Mayor of the City of New York, NEW YORK CITY POLICE DEPARTMENT, BENJAMIN WARD, in his official capacity as Police Commissioner of the City of New York, NEW YORK CITY DEPARTMENT OF PERSONNEL, JUDITH A. LEVITT, in her official capacity as City Personnel Director, NEW YORK CITY TRANSIT POLICE DEPARTMENT and VINCENT DEL CASTILLO, in his official capacity as Chief of the New York City Transit Police Department, Defendants.

The opinion of the court was delivered by: EUGENE H. NICKERSON

 Plaintiffs, seven Black and one Hispanic New York City Transit Authority police lieutenants, brought this action against the City of New York and various of its officers, agencies, agents and employees, alleging that they were denied promotion due to racial discrimination. The complaint invokes 42 U.S.C. §§ 1981, 1983, 1985, 1988, and 2000e2 (Title VII), as well as the Thirteenth, Fourteenth, and Fifteenth Amendments.

 The complaint also alleges breach of contract, fraud, and misrepresentation under state law. Plaintiffs say that this court has jurisdiction of the federal and constitutional claims under 28 U.S.C. §§ 1331 and 1343(3) and pendent jurisdiction of the state law claims.


 On February 28, 1987, plaintiffs along with other transit police lieutenants took the written portion of promotional examination 5605 (the Examination) for the position of captain. On June 27 and 28, 1987, they took the oral portion of the Examination. Of the 104 candidates who took the Examination, the City placed 74 on an eligible list for promotion.

 At the time plaintiffs brought this action, no minority candidates had been promoted. Of the eleven Black and three Hispanic lieutenants who took the Examination, eight are named plaintiffs. Of the 74 candidates who passed, plaintiff Guinyard was number 33. The other plaintiffs were at the bottom third of the eligible list.

 To date, the Authority has promoted 60 people from the 74 who passed. Retirements and other factors resulted in some of those originally ranked below 60 being promoted. Plaintiffs Jackson, Moore, and Negron have joined Guinyard as among those promoted.

 Plaintiffs say that the defendants intentionally discriminated against them and that the composition and scoring of the oral, not the written, portion of the Examination was arbitrary, capricious, and highly subjective. They say that the defendants' actions and the administration of the Examination have had a disparate racial impact, preventing Blacks and Hispanics from becoming captains. Plaintiffs also say that the scoring system actually used for the Examination differed from the one described in the official notice, thereby violating their contractual rights.

 In a Memorandum and Order, dated April 16, 1991, familiarity with which is assumed, this court denied the plaintiffs class certification on the ground that plaintiffs failed to meet the numerosity requirement of Federal Rule of Civil procedure 23(a)(1).

 The Captains Eligibles Association (the Intervenors), a group of white transit police lieutenants who took and passed the Examination, have intervened and are represented by separate counsel.

 The City defendants joined by the Intervenors move to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 37, saying that plaintiffs have failed to comply with the scheduling orders of United States Magistrate Judge Allyne Ross. In the alternative, the city defendants, joined by the Authority and the intervenors, move for summary judgment, pursuant to Federal Rule of Civil Procedure 56, saying that the plaintiffs cannot demonstrate a prima facie case of employment discrimination under Title VII of the Civil Rights Act of 1964 and cannot prove any element of their other claims.

 Plaintiffs cross-move for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, asking for a declaration that there has been an adverse impact. Plaintiffs also seek sanctions pursuant to Federal Rule of Civil Procedure 11, saying that the defendants have made legal arguments in their papers that are not warranted by existing law nor a reasonable extension of existing law.


 In arguing for dismissal for plaintiffs' alleged failure to comply with the magistrate's discovery orders, city defendants say that plaintiffs failed to answer directly questions asked in defendants' Second Set of contention Interrogatories, in particular to give information as to the basis for a claim of adverse impact in the selection of Hispanic and Black candidates, as well as certain statistical data.

 Plaintiffs responded to the interrogatories by submitting an evaluation of adverse impact made by Dr. Lance Seberhagen (Seberhagen Report). It identified the federal guidelines for evaluating adverse impact and analyzed the Examination results by three different statistical methods.

 The City defendants say that this report does not answer the interrogatories in the form requested, and that such unresponsiveness warrants dismissal under Federal Rule of Civil Procedure 37 (d)(2). In the alternative, City defendants in their brief ask that, pursuant to Federal Rule of Civil Procedure 37 (b)(2)(B), the court not consider the Seberhagen Report on defendants' motion for summary judgment.

 Neither sanction is warranted. The purpose of the defendants' interrogatories was to ascertain plaintiffs' legal theory and their statistical evidence to support their claim. While the Seberhagen Report does not present answers precisely in the form defendants sought, it does sufficiently set forth plaintiffs' theory and evidence to support it. It is true that parts of the Seberhagen Report combine Blacks and Hispanics, whereas the defendants requested information regarding the adverse impact on Blacks and Hispanics as individual groups. But defendants have been able easily to determine the result if Hispanics are excluded.

 Whatever, the shortcomings there are in plaintiffs' responses do not warrant the sanctions of either dismissal or preclusion of evidence for purposes of summary judgment. See Batson v. Neal Spelce Assoc.s. Inc., 765 F.2d 511, 515 (5th Cir. 1985).

 III. Summary Judgment

 Although defendants move for summary judgment on all claims, the court will consider only those contentions they have briefed, namely, whether plaintiffs can make a showing of adverse impact under their Title VII claim, whether plaintiffs can show a policy, custom, regulation or officially-adopted decision by the Authority defendants that would sustain a ...

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