431 F.Supp. 526 (S.D.N.Y. 1977), 76 Civ. 1982, Guardians Ass'n of New York City Police Dept., Inc. v. Civil Service Commission of City of New York

Docket Nº:76 Civ. 1982.
Citation:431 F.Supp. 526
Case Date:March 17, 1977
Court:United States District Courts, 2nd Circuit

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431 F.Supp. 526 (S.D.N.Y. 1977)




No. 76 Civ. 1982.

United States District Court, D. New York

March 17, 1977

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Christopher Crowley, Sara E. Steinbock, New York City, Oscar Garcia-Rivera, Kenneth Kimerling, New York City, Puerto Rican Legal Defense and Education Fund, Inc., for plaintiffs.

W. Bernard Richland, Corp. Counsel, New York City, for defendants; Rosemary Carroll, Paul L. Brennan, New York City, of counsel.

ROBERT L. CARTER, District Judge.

Statement of the Case

This action challenges the legality of the hiring and firing practices of the

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New York City Police Department ("NYCPD"). Jurisdiction is based on Title 28 U.S.C. ss 1331 and 1343(3), (4) and 42 U.S.C. ss 1981, 1983 and 2000e-5(f)(3). 1 Plaintiffs allege that defendants' practices violate the Fourteenth Amendment, 42 U.S.C. ss 1981 and 1983 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. s 2000e et seq. 2 Plaintiffs have moved for a preliminary injunction restraining the NYCPD from firing or recalling any police officers until seniority lists are reordered to accord plaintiffs the seniority they would have had but for defendants' discriminatory practices. Plaintiffs also seek certification of a class consisting of black and Hispanic officers who were subject to layoff in June, 1975. For the reasons set forth below, plaintiffs' motions are granted. 3

Procedural Background

This action was commenced May 3, 1976, by an order to show cause seeking a temporary restraining order and a preliminary injunction. The application for a temporary restraining order was denied. A hearing on the application for a preliminary injunction was held on May 12, 1976. At the hearing, defendants moved to dismiss the complaint on the grounds of statute of limitations, laches, and lack of subject matter jurisdiction. Their motion was denied, and the hearing commenced. It continued intermittently until July 29, 1976.

Having heard that the NYCPD intended to recall previously laid off police officers, plaintiffs in the early part of July renewed their application for a temporary restraining order barring such recall pending determination of the rights of the discharged black and Hispanic police officers in this litigation. The court denied this application on the basis of an affidavit of Michael J. Codd, Police Commissioner, which recited that all recalled officers were to be notified that their rights to employment were subject to any determination that might be made in this pending litigation.

Factual Background

Plaintiffs are black and Hispanic police officers on layoff since June, 1975. They allege that the NYCPD's use of its pre-1973 entry level examinations and its former requirement that all police officers be 67 inches or taller discriminated against them, and that but for this discrimination they

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would have accrued sufficient seniority to withstand being fired. Defendants are the NYCPD, the New York City Department of Personnel, whose staff prepare and administer the examinations, and the Civil Service Commission, which prescribes rules for administering the civil service laws.

Because of the fiscal crisis affecting the entire city, the NYCPD was required to cut its budget by three percent. As a result, 2,864 police officers were discharged in June, 1975, pursuant to the last-hired, first-fired seniority system existing in the NYCPD. Plaintiffs complain that these terminations, 21.5 percent of which were minorities, 4 perpetuate defendants' past discriminatory practices, and violate the strictures of the Fourteenth Amendment, Title VII and 42 U.S.C. ss 1981 and 1983.

Class Action Certification

For class action treatment to be appropriate, all the requirements of subdivision (a), and one of the alternative requirements of subdivision (b), of Rule 23, Fed.R.Civ.P. must be satisfied. 5 There is little doubt that plaintiffs have met the first three requirements of Rule 23(a).

1. The Numerosity Requirement

The proposed class consists of all black and Hispanic New York City policemen currently on layoff who would not have been furloughed but for defendants' allegedly discriminatory employment practices. Plaintiffs make the uncontroverted allegation that the class numbers between 200 and 600 blacks and Hispanics. Given these figures, the numerosity requirement is clearly met. Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972); Ste. Marie v. Eastern R. R. Ass'n, 72 F.R.D. 443 (S.D.N.Y.1976) (Carter, J.).

2. Common Questions of Law or Fact

Race discrimination cases, by their very nature, involve behavior that affects a group of people. Rodriguez v. East Texas Motor Freight Co., 505 F.2d 40, 50 (5th Cir. 1974); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). Plaintiffs here claim that defendants' practice of discharging police officers based on their seniority violates Title VII and 42 U.S.C. ss 1981 and 1983 by perpetuating discrimination effected by the use of racially biased entry level examinations and a discriminatory height requirement. It is clear that these claims:

"not only can, but most appropriately should be decided as a class action since 'the evil sought to be ended is discrimination on the basis of a class characteristic,

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i. e., race, sex, religion, or national origin.' . . ."

Hecht v. Cooperative for Am. Relief Everywhere, Inc., 351 F.Supp. 305, 312 (S.D.N.Y.1972) (Lasker, J.) (citations omitted).

3. Representative Parties' Claims Typical of the Claims of the Class

The claims of the representative parties are typical of most of the class. The individual plaintiffs claim to be on layoff either as a result of defendants' discriminatory use of entry level examinations or as a result of defendants' discriminatory height requirement. Plaintiff organizations include members who have been victims of both these practices. Together, their claims range over the totality of defendants' challenged employment practices. Thus, the typicality standard is met.

4. Fair and Adequate Protection of the Class' Interests

In Mersay v. First Rep. Corp. of Am., 43 F.R.D. 465, 469 (S.D.N.Y.1968) Judge Metzner held that:

"the requirement of adequate representation comprises only two elements: (a) that the interests of the representative party must coincide with those of the class; and (b) that the representative party and his attorney can be expected to prosecute the action vigorously. Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y.1968)."

Defendants presumably contest the adequacy of plaintiffs' representation by contending that in Guardians Ass'n of New York City Police Dep't v. Civil Serv. Comm'n, 72 Civ. 928 (S.D.N.Y., July 16, 1973) (Ryan, J.) ("Guardians I" ), a suit brought under 42 U.S.C. s 1983, plaintiff associations took a position incompatible with the one taken here. Defendants argue that in the previous action these associations sought a permanent injunction against the use of lists predating 1972 for appointments to the Police Department. Therefore, it is claimed, since the individual plaintiffs in the instant case obtained appointments from pre-1972 lists "precisely because the relief sought by these associations was denied in Guardians I . . . (the) associations represented interests directly adverse to (those of) the individual plaintiffs herein." Def's. Post-Trial Memo. at 5. This argument is patently without merit.

In the earlier suit, plaintiff sought to enjoin the use of pre-1972 officer eligibility lists out of the fear that a disproportionately low number of minorities would be hired due to the discriminatory impact of the examinations from which the lists were prepared. This is made clear from plaintiffs' alternative request to establish a quota of one minority appointment for every white appointment. The relief sought was denied since it appeared that the lists were being exhausted and all the plaintiffs would be hired.

The premise of that suit is consistent with that asserted here. In both cases, the thrust of plaintiffs' attack is directed toward the use of employment requirements which discriminate against minorities. Accordingly, I am convinced that the interests of the plaintiff associations coincide with those of the class, and based on the extensive work already conducted by plaintiffs, they can be expected to prosecute the action vigorously.

Defendants also argue that plaintiff Santos could not have been appointed as a police officer until he was a United States citizen and that he did not become a citizen until the time of a hiring freeze; therefore he is unable to show that he could have been appointed earlier than he actually was. Plaintiff Perez, defendants assert, challenges the height requirement but has never failed a police officer examination and does not claim the written examination discriminated against him. To the extent these assertions suggest inadequate representation or atypicality of claims, they pose no bar to certification of the class. They may present individual questions which will determine each individual's right to recovery, but Rule 23 gives the court the power to consider individualized problems if and when they appear. Ste. Marie v. Eastern R. R. Ass'n, supra. In any event, since

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plaintiff organizations are suitable representatives, the potential disqualification of Santos and Perez poses no threat to the viability of this class suit.

5. Action or Inaction on Grounds Generally Applicable to Class...

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