Brennan v. N.Y.C. Board of Education

• Decision Date: 23 October 2000
• Docket Number: Docket No. 00-6077,DEFENDANTS-APPELLEES,INTERVENORS-APPELLANTS,PLAINTIFF-APPELLEE
• Parties: (2nd Cir. 2001) JOHN BRENNAN; JAMES G. AHEARN; KURT BRUNKHORST,, v. N.Y.C. BOARD OF EDUCATION; DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; WILLIAM J. DIAMOND, PERSONNEL DIRECTOR, NEW YORK CITY DEPARTMENT OF PERSONNEL (IN HIS OFFICIAL CAPACITY); 115-13 120TH STREET,, UNITED STATES OF AMERICA, Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 123

260 F.3d 123 (2nd Cir. 2001)

JOHN BRENNAN; JAMES G. AHEARN; KURT BRUNKHORST, INTERVENORS-APPELLANTS, v. N.Y.C. BOARD OF EDUCATION; DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES; WILLIAM J. DIAMOND, PERSONNEL DIRECTOR, NEW YORK CITY DEPARTMENT OF PERSONNEL (IN HIS OFFICIAL CAPACITY); 115-13 120TH STREET, DEFENDANTS-APPELLEES, UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE.

Docket No. 00-6077

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 23, 2000

Decided: Aug. 3, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Michael E. Rosman, Center for Individual Rights, Washington, D.C. (George W.C. McCarter, McCarter & Higgins, Shrewsbury, New Jersey, of counsel), for Intervenors-Appellants.

Alan Beckoff (Michael D. Hess, Corporation Counsel of the City of New York, and Stephen J. McGrath, of counsel), New York, New York, for Defendants-Appellees.

Lisa Wilson Edwards, United States Department of Justice, Civil Rights Division (Bill Lann Lee, Acting Assistant Attorney General, and Dennis J. Dimsey, of counsel), Washington, D.C., for Plaintiff-Appellee.

Before: Cardamone, Winter, and Pooler, Circuit Judges.

Winter, Circuit Judge

John Brennan, James G. Ahearn, and Kurt Brunkhorst appeal from Magistrate Judge Levy's denial of their motion to intervene as of right, pursuant to Fed. R. Civ. P. 24(a)(2). See United States v. New York City Bd. of Educ., 85 F. Supp. 2d 130, 154-56 (E.D.N.Y. 2000). The underlying action was brought by the United States against the New York City Board of Education and certain City officials (collectively "Board"). The complaint alleged employment discrimination. The parties -- the government and the Board -- reached a settlement agreement ("Agreement") and moved for a fairness hearing and approval in the district court. The Agreement contained provisions that conferred certain employment rights on a number of persons who are African-American, Hispanic, Asian, or female. Appellants, white, male employees of the Board, sought to intervene. They claimed that intervention was necessary to protect their present employment status -- in particular, their seniority rights. The district court denied the intervention motion on the ground that appellants could not assert a cognizable interest under Rule 24(a)(2) because they had presumptively obtained their employment status as a result of discrimination, they had no property right in that status, and any adverse effect of the Agreement was remote and speculative. See id. at 155-56. We disagree and reverse.

BACKGROUND

In bringing the underlying action pursuant to Section 707(a) of Title VII, 42 U.S.C. § 2000e-6(a), the government alleged a pattern and practice of racial and gender discrimination by the Board in its hiring and recruitment practices with respect to the positions of Custodian and Custodian Engineer. These positions appear to have a hierarchical relationship, with Custodian Engineer being the superior job.¹ Before one becomes a permanent Custodian or Custodian Engineer with seniority rankings, one must serve what is essentially a probationary period as a provisional Custodian or provisional Custodian Engineer.

The complaint alleged, inter alia, that the Board engaged in discrimination by: (i) failing to recruit females and minorities on the same basis as white males; (ii) failing to hire and promote minorities on the same basis as whites; and (iii) using civil service exams --which determine the order of hiring and promotion and, therefore, seniority -- that had a negative, disparate impact on black and Hispanic applicants.

After discovery and negotiations, the government and the Board executed the Agreement. In pertinent part, the Agreement required the Board to confer permanent civil service status on forty-three provisional African-American, Hispanic, Asian, and female Custodians and Custodian Engineers, and to provide retroactive seniority to them and an additional eleven employees (fifty-four in all) of similar backgrounds (collectively "Offerees").

The Agreement would benefit the Offerees in the following ways. The salary of a Custodian or Custodian Engineer is discounted at various levels during the first five years of an individual's employment. Retroactive seniority would entitle an Offeree to a higher salary, i.e., a smaller discount. Moreover, the larger the building in which a Custodian or Custodian Engineer works, the higher the salary. As a result of a collective bargaining agreement, transfers to larger buildings are based generally on a formula that uses both seniority and performance ratings. In practice, 90% of actual transfers are based on the transferee's seniority. Finally, permanent civil service status benefits an Offeree by allowing him/her to bypass provisional status in which the employee has no protected rights.

As claimed by appellants, the pertinent principal effects of the Agreement on other employees appear to be two-fold. First, other Custodians or Custodian Engineers will have less seniority relative to Offerees moved above them and may therefore fail to obtain a desired transfer to a larger building. Second, permanent Custodian Engineers have seniority rights whereas provisional Custodian Engineers are probationary employees.² According permanent status as a Custodian Engineer to an Offeree may result in the Offeree's displacing a provisional Custodian Engineer, who may return to a permanent Custodian position.

The parties moved the district court to hold a fairness hearing at which objections to the Agreement would be heard. See 42 U.S.C. § 2000e-2(n) (preventing challenge to employment practices implementing consent judgment provided notice and opportunity to object are given). Various employees, including appellants, filed objections to the proposed Agreement on numerous grounds. Appellants, who were permanent Custodians and/or provisional Custodian Engineers, also moved to intervene as of right, pursuant to Fed. R. Civ. P. 24(a)(2),³ on the ground that the Agreement was unconstitutional. They claimed that the Agreement was impermissibly based on race, ethnicity, and gender and would result in some or all of them losing their status as provisional Custodian Engineers and/or their relative seniority rights as Custodians and/or Custodian Engineers. The district judge referred the matter to Magistrate Levy to conduct a fairness hearing, and the government and the Board then consented to have the case referred to Magistrate Levy for all purposes, pursuant to 28 U.S.C. § 636(c).

Magistrate Levy received expert declarations and held a fairness hearing, at which employees of the Board who filed timely objections to the Agreement had an opportunity to raise their concerns, while the government and the Board presented arguments in favor of entry of the Agreement.

The district court found that the government had made a prima facie showing on each of its discrimination claims; that the remedies proposed in the Agreement were fair, reasonable, and legal; and that none of the objections had sufficient merit to overcome the "presumption of validity" that the district court accorded to the Agreement. 85 F. Supp. 2d at 157.

The district court also denied appellants' motion to intervene. It reasoned that they had presumptively obtained their seniority rights as a result of discrimination. It further concluded that appellants had no legally protectable interest in their employment status or seniority rankings. Specifically, the district court held that "a civil servant has no vested property right in a particular position or appointment, and 'a person on an eligibility list does not possess any mandated right to appointment or any other legally protectible interest.'" 85 F. Supp. 2d at 155 (quoting Kirkland v. New York State Dep't of Corr. Servs., 711 F.2d 1117, 1134 (2d Cir. 1983) (internal quotation marks omitted)).

The district court further held that "[e]ven if the proposed intervenors could assert some cognizable interest in their seniority rights, that interest would be remote and speculative." Id. at 156. It based this conclusion on the perceived unlikelihood that any of the fifty-four Offerees would compete with any of the appellants for a transfer to a particular building and obtain the transfer as a result of the retroactive seniority. For such a result to occur, the court reasoned, several events would need to converge: (i) one of the Offerees and one of the appellants would have to request the same transfer; (ii) each would have to have the same job title (i.e., Custodian or Custodian Engineer); (iii) the performance ratings of the Offeree and the appellant would have to be quite close; and (iv) the Offeree and the appellant would have to hold the first and second spots, respectively, on the transfer list for the particular building. The district court held, therefore, that appellants' interest in their seniority rankings was not "direct, substantial, and legally protectable," id. at 156 (internal quotation marks omitted), denied appellants' motion to intervene, and approved the Agreement.

This appeal followed.

DISCUSSION

"We review the denial of... the motion for intervention as of right under Fed. R. Civ. P. 24(a)... for abuse of discretion." New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992); accord United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 854 (2d Cir. 1998) ("We have jurisdiction of an appeal from an order which denies intervention. Our review invokes the abuse of discretion standard." (internal citations omitted)). "Errors of law or fact may constitute such abuse." SG Cowen Sec. Corp. v. Messih, 224 F.3d 79, 81 (2d Cir. 2000).

To intervene as of right, a movant must: "(1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the...