grade. Hartvik affidavit, P 12, at 3. Accordingly, the Cadets are ensured seniority and earlier receipt of various other benefits as police officers.
There were initially 43 candidates accepted for the program, 31 sat for and passed the examination and currently 29 Police Cadets remain in the program. For reasons unrelated to this matter, no appointments have been made from either the promotional or the open competitive list for Police Officer.
4. THE PLAINTIFFS' APPLICATIONS
There is no dispute that each of the plaintiffs applied for the program in 1994, and it appears that all parties agree that each plaintiff was rejected because they are not black or Hispanic. The County informed each plaintiff in writing that their applications had been "reviewed with great care and, of course, complete objectivity" and that the reason for their rejection was "based on information [the applicant] supplied in the application packet and on the results of various examinations." Plaintiffs' Complaint, PP 30, 55, 79, 102, 127; see Plaintiffs' Exhibit A, attached to Plaintiffs' Memorandum of Law (a letter to plaintiff Sefton of June 1, 1994, which is identical to letters given to other Plaintiffs). None of the plaintiffs, however, were asked to submit to any examination, and obviously, the letters never mentioned that the only reason plaintiffs were rejected was because they were not black or Hispanic.
Each of the Plaintiffs filed discrimination complaints with the EEOC in 1994 and early 1995, respectively. (Plaintiffs' Complaint, paragraph 1). After receiving "Right to Sue" letters from the U.S. Justice Department, plaintiffs commenced the instant action on November 3, 1995.
5. SCPD'S PAST EFFORTS TO ACHIEVE DIVERSITY
Prior to creating the Cadet Program, the County had already taken significant strides towards achieving racial diversity and fully complied with the requirements of the Consent Decree, including the mandated recruitment provisions. The recruitment drive did achieve a significant increase in minority applicants, unfortunately, the ultimate results did not measure up to the efforts. Pursuant to the Consent Decree, the County retained RBH, a consulting firm, to develop, administer, and grade the 1988, 1992, and 1996 police officer examinations. In spite of these efforts, the number of minorities hired as a result of the 1988 and 1992 examinations did not significantly approach the established targets.
Pending before the Court are motions for summary judgment by all parties. Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The burden of proof is on the moving party to show that there is no genuine issue of material fact, Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)), and "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Id. (citing Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987)). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A party opposing a motion for summary judgment "'may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248, 106 S. Ct. at 2510 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968). Under the law of the Second Circuit, "when no rational jury could find in favor of the nonmoving party because the evidence is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). In the instant action, the parties agree that there are no material issues of fact in dispute and that the Court should decide the action as a matter of law; the Court concurs.
The Cadet Program, as established, constitutes de jure discrimination and is directly violative of the express terms of the 1986 Consent Decree because employment decisions were not made on a "non-discriminatory basis without regard to an applicant's or an employee's race, sex or national origin." The failure to consider non-minority applicants was an employment decision made on a discriminatory basis. The Cadet Program is a practice with respect to the recruitment or hire of applicants which has both the purpose and effect of "discriminating unlawfully on the basis of sex, race or national origin."
The Suffolk County Police Department Cadet Program indisputably rejected applicants based solely on the color of their skin. All racial classifications imposed by a governmental actor must be analyzed by a reviewing court under strict scrutiny. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 132 L. Ed. 2d 158, 115 S. Ct. 2097, 2113 (1995). To pass a strict scrutiny review, the government's racially motivated actions, must serve a compelling governmental interest, and must be narrowly tailored to further that interest." Id.
The Court first considers whether the Cadet Program is justified by a compelling state interest, that is, whether the County "had a strong basis in evidence for its conclusion that remedial action was necessary." Wygant v. Jackson Board of Education, 476 U.S. 267, 277, 106 S. Ct. 1842, 1849, 90 L. Ed. 2d 260 (1986). Achieving diversity is not a sufficiently compelling state interest. See Adarand, 515 U.S. 200, 115 S. Ct. 2097 at 2112, 132 L. Ed. 2d 158; Wygant, 476 U.S. at 274, 106 S. Ct. at 1847. Rather, there must be some "showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination." Wygant, 476 U.S. at 274, 106 S. Ct. at 1847. The use of statistical evidence, where gross statistical disparities can be shown, may constitute prima facie proof of a pattern or practice of discrimination, however, when special qualifications are required to fill particular jobs, comparisons to the general population may have little probative value." City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501, 109 S. Ct. 706, 726, 102 L. Ed. 2d 854.
Here, however, it is not necessary for the Court to find a showing of past discrimination sufficient to satisfy a compelling governmental interest because the Cadet program is not narrowly tailored. To determine whether race conscious remedies are narrowly tailored, the Court applies the factors enunciated in United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987). These include: (1) the necessity for the relief; (2) the efficacy of alternative remedies; (3) the flexibility and duration of the relief, including the availability of waiver provisions; (4) the relationship of the numerical goals to the relevant labor market; and (5) the impact of the relief on the rights of third parties. Id., 480 U.S. at 171, 107 S. Ct. at 1066.
In deciding whether the Cadet Program was necessary, the Court takes notice of the good faith efforts by the County to comply with the 1986 Consent Decree, however, it also notes that the Cadet Program was a voluntary undertaking by the County. It was not established under the direction of a court order nor was it pursuant to the express terms of the Consent Decree, rather, it contravened the express terms of the Consent Decree in its attempt to satisfy the Decree's goals. Moreover, the inclusion of a college degree and part time employment as part of the Cadet Program has not been shown to directly foster the qualifications and appointment of minorities as police officers. A college degree is not a necessary requirement for employment as a Suffolk County Police Officer.
Additionally, there is no evidence in the record to suggest that all other alternative measures were evaluated and properly passed over. The recruitment efforts succeeded in increasing the number of minority applicants and there are other remedies available to increase minority exam performance absent an unqualified preference. The Cadet Program does not satisfy the first element of necessity, nor the second element of the efficacy of alternative remedies.
The element of flexibility considers whether a waiver exists when sufficient number of qualified minorities are not available for hire. The Police Service Aides, in passing the same examination which qualifies all candidates for consideration of appointment, met the minimal threshold, and thereby satisfied the flexibility standard. However, continuation of the Cadet Program until the goals of racial balance are achieved would constitute an unreasonable duration of at least nine years. See Local 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 512, 106 S. Ct. 3063, 3070, 92 L. Ed. 2d 405 (1986). This period would be further extended by the attrition of minority police officers and the potential that Police Cadets would not successfully complete the program.
The fourth factor is the relationship of the numerical goals to the relevant labor market. The Court finds that the statistics provided may not have accurately assessed the percentage of the labor force that would satisfy the additional qualifications needed to be appointed as a Suffolk County Police Officer, instead, the figures utilized reflected the minority percentage of the general population in the geographical areas from which the examination historically draws who were in the proper age range. There are additional educational, physical, medical, psychological and background requirements that were not considered, and therefore, the statistics provided have little probative value. Educational and sociological factors, among others, contribute to examination performance. A statistical deviation in a group's participation and success rate on an examination, does not constitute prima facie discrimination.
Finally, the impact on the rights of third parties is attenuated and diffused to a considerable extent among society generally. And although the impact is not as intrusive as a loss of an existing job, this does not rescue an otherwise unconstitutional program. In totality, a weighing of the factors dictates the conclusion that the Cadet Program was not a narrowly tailored remedy.
As the Court finds that the Suffolk County Police Department Cadet Program discriminated on the basis of the applicants' race and did not pass the strict scrutiny test required of all racially motivated governmental programs, it is axiomatic that this discriminatory hiring practice also violates 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 and § 296 of the New York Executive Law.
For the foregoing reasons and the reasons stated on the record, the Court denies the defendants' motion for summary judgment and grants the plaintiffs' motion for summary judgment.
The parties are ordered to brief the issue of whether, and to what extent, the plaintiffs are entitled to damages. The plaintiffs shall submit to the Court a briefing schedule in accordance with my individual rules.
Dated: Uniondale, New York
September 25, 1997
Joanna Seybert, U.S.D.J