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MELE v. CHRISTOPHER

July 7, 1998

VINCENT MELE, RICHARD GUERIN, RONALD ROMANO, JOHN HUNTEMANN, MARLENE BASCWITZ, EDWARD VITULLO, and STEPHEN BARRO, Plaintiffs, against DONALD CHRISTOPHER, individually and as Police Commissioner of the City of Yonkers, JOHN SPENCER, individually and as Mayor of the City of Yonkers, THOMAS DUGAN, MARY DORMAN and PATRICIA ORTIZ, individually and as members of the Yonkers Civil Service Commission, Defendants.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Plaintiffs, unsuccessful candidates for positions with the Yonkers Police Department, bring this action asserting that defendants' method of ranking and appointing police officers after a civil service examination violated plaintiffs' rights under 42 U.S.C. §§ 1983 and 1985, the First, Fifth, and Fourteenth Amendments to the United States Constitution, and Article 5 § 6, and Article 1 §§ 6 and 11 of the New York State Constitution.

 Defendant Donald Christopher is the Police Commissioner of the City of Yonkers; defendant John Spencer is the Mayor of the City of Yonkers; and defendants Thomas Dugan, Mary Dorman, and Patricia Ortiz are members of the Yonkers Civil Service Commission. Defendants move for dismissal under Fed. R. Civ. P. 12(b)(6), and plaintiffs cross-move for summary judgment. At a preliminary conference, this Court stated that it would treat defendants' motion to dismiss as one for summary judgment. For the reasons set forth below, defendants' motion is granted. Plaintiffs' cross-motion is denied.

 BACKGROUND

 On a motion for summary judgment, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988). The following facts are construed accordingly.

 On December 5, 1992, plaintiffs applied to take Examination # 69-984 for the position of Yonkers Police Officer. Defendants created a classification system of five zones for candidates who had taken that examination: Zone 1 was for those with scores between 95 and 100; Zone 2 was for those with scores between 90 and 95; Zone 3 was for those with scores between 85 and 90; Zone 4 was for those with scores between 80 and 85; and Zone 5 was for those with scores between 75 and 80. Defendants then assigned a score of 95 to those in Zone 1, 90 to those in Zone 2, 85 to those in Zone 3, 80 to those in Zone 4, and 75 to those in Zone 5. Plaintiff Huntemann was placed in Zone 3; all other plaintiffs were placed in Zone 4. Oral interviews were conducted with candidates in Zones 1, 2, and 3, but not with candidates in Zones 4 or 5. In the meantime, plaintiffs contend that many appointments were made of persons who were related to police officers and retired police officers, as well as for other reasons unrelated to merit and examination grades. In addition, defendants made a large number of appointments by holding a lottery that included all of the candidates in Zone 4, one candidate in Zone 3, and one candidate in Zone 1. On August 21, 1997, seventy-two candidates remained in Zone 4, and while September 13, 1997 was the expiration date of the eligible list from the examination, the expiration date passed without defendants appointing plaintiffs. On September 29, 1997, the defendants announced that another civil service examination would be held on December 6, 1997. The Mayor did not make any appointments from the eligible list.

 Plaintiffs object to the assignment of scores and the division of candidates into zones, contending that such acts allowed absolute discretion to the defendants to appoint police officers, without regard to either the results of the competitive examinations or merit. Plaintiffs assert that the ratings system and procedures violated New York State Civil Service Law and the New York State Constitution, as well as the plaintiffs' rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. §§ 1983 and 1985. Since the bases for plaintiffs' Fifth and Fourteenth Amendment claims are not clear from plaintiffs' complaint, this Court will construe plaintiffs' complaint as asserting both due process and equal protection claims.

 DISCUSSION

 Summary Judgment Standard

 A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." Fed. R. Civ. P. 56(c); Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619.

 To successfully oppose a motion for summary judgment, the responding party "must set forth facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A summary judgment motion cannot be defeated through mere speculation or conjecture. Pollis v. New School for Social Research, 829 F. Supp. 584, 586 (S.D.N.Y. 1993) (citing Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (other citations omitted)).

 Section 1985 Claims

 Plaintiffs' complaint asserts claims pursuant to 42 U.S.C. § 1985. That provision provides that it shall be unlawful for "two or more persons [to conspire] for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." In order to state a claim under § 1985(3), a plaintiff must establish "(1) a conspiracy, (2) motivated by racial or other invidiously discriminatory animus, (3) for the purpose of depriving any person or a class of persons of equal protection of privileges and immunities under the law, (4) that the conspirators committed some act in furtherance of the conspiracy, and (5) that the plaintiffs were injured." Wintz v. Port Auth. of New York and New Jersey, 551 F. ...


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