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July 7, 2003


The opinion of the court was delivered by: John Curtin, Senior District Judge


Defendant City of Buffalo moves pursuant to Rule 14 of the Federal Rules of Civil Procedure for leave to implead the New York State Department of Civil Service and George C. Sinnott, Commissioner, as third-party defendants. Oral argument was heard by the court on June 13, 2003. For the reasons that follow, the City's motion is denied.


As discussed at length in this court's prior decisions and orders in this case, plaintiffs Men of Color Helping All Society, Inc. ("M.O.C.H.A.") and several individual City of Buffalo firefighters brought this employment discrimination action pursuant to various sections of the Civil Rights Act of 1964, including 42 U.S.C. § 1981, 1983, and 2000e-2 and 2000e-5 (Title VII). The case involves two separate complaints: Complaint "A," alleging discriminatory enforcement of the Buffalo Fire Department's drug-testing policy (see Item 55), and Complaint "B," alleging discriminatory promotion practices (see Item 54). This motion relates to Complaint "B."

More specifically, in Complaint "B," plaintiffs allege discriminatory administration and scoring of the 1998 statewide examination utilized by the City to determine the promotion of firefighters to the rank of lieutenant, and that "[t]he test itself contains a racial bias which works to the disadvantage of African Americans" (Item 54, ¶ 33). In July 2001, the court granted the plaintiffs' motion for a temporary restraining order ("TRO") enjoining the City from making any promotions from the eligibility list generated by the 1998 lieutenant's exam pending a hearing on plaintiffs' application for a preliminary injunction (see Item 76). After a hearing on July 9, 2001, the court issued an order lifting the TRO and directing the parties to engage in expedited discovery, including "efforts to secure information from New York State regarding how the 1998 lieutenant's exam was developed" (Item 79). On July 20, 2001, upon receiving further submissions and hearing argument, the court issued an opinion from the bench denying plaintiffs' preliminary injunction application (see Items 93, 96).

In the meantime, counsel for the City contacted the State of New York Attorney General's Office to request information from the State Department of Civil Service (the "Department") regarding the development of the 1998 lieutenant's exam, in accordance with the court's July 9, 2001 order. Assistant Attorney General Ann Williams responded that, while the Department was not a party to this litigation, it was willing to voluntarily provide the requested information. Then, on August 10, 2001, plaintiffs served the Department with a notice of deposition along with a non-party subpoena duces tecum seeking substantially the same information requested by the City. Thereafter, the court signed a stipulated confidentiality order covering the disclosure of the requested information (Item 107), and the Department provided the parties with documents responsive to the requests. On January 31 and February 1, 2003, the parties deposed Dr. Wendy Steinberg, a former employee of the Department who had primary responsibility for development of the lieutenant's exam at issue.

Subsequent to Dr. Steinberg's deposition, the City filed this motion pursuant to Fed.R.Civ.P. 14 for leave to bring the Department and George C. Sinnott, Commissioner of Civil Service, into the case as third-party defendants. In its proposed third-party complaint, the City reiterates the allegation that the lieutenant's exam contains a racial bias in violation of, "among other statutes, Title VII . . ." (Item 138, Ex. A, ¶ 7), and that the Department developed, administered, and scored the March 1998 exam in accordance with its statutory duties under New York Civil Service Law § 23(2)*fn1 (id., ¶¶ 8-10). The City further alleges:

If the plaintiffs sustained any damages in any manner alleged in the Complaint, and the City should be held liable to the plaintiffs, then such damages will have been caused, in whole or in part, by the creation, administration, and scoring by the third-party defendants of the lower level fire promotion examination. Therefore, the third-party defendants would be liable, in whole or in part, to the City for damages, if any, recovered by the plaintiffs on the causes of action alleged in the complaint.
(Id. at ¶ 11.)

Plaintiffs do not oppose the City's motion. The Department, on the other hand, has filed a memorandum in opposition to the motion,*fn2 asserting the following grounds:

1. The relief sought by the third-party complaint — i.e., indemnification and/or contribution — is not available in a Title VII action.
2. The third-party complaint is barred by the Eleventh Amendment.

(See Item 147). Each of these grounds is discussed in turn below.


I. Impleader Under Rule 14

Fed.R.Civ.P. 14(a) states, in ...

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