Vulcan Soc. of NY City Fire Dept., Inc. v. Civil Serv. Com'n

• Decision Date: 21 November 1973
• Docket Number: Dockets 73-2287,No. 414,415,73-2317.,414
• Citation: 490 F.2d 387
• Parties: The VULCAN SOCIETY OF the NEW YORK CITY FIRE DEPARTMENT, INC., et al., Plaintiffs-Appellees-Appellants, v. CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK et al., Defendants-Appellants-Appellees, Nicholas M. Cianciotto et al., Intervenors-Defendants-Appellants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

490 F.2d 387 (1973)

The VULCAN SOCIETY OF the NEW YORK CITY FIRE DEPARTMENT, INC., et al., Plaintiffs-Appellees-Appellants, v. CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK et al., Defendants-Appellants-Appellees, Nicholas M. Cianciotto et al., Intervenors-Defendants-Appellants-Appellees.

Nos. 414, 415, Dockets 73-2287, 73-2317.

United States Court of Appeals, Second Circuit.

Argued October 15, 1973.

Decided November 21, 1973.

COPYRIGHT MATERIAL OMITTED

Maurice N. Nessen, New York City, Nickerson, Kramer, Lowenstein, Nessen & Kamin and Thomas H. Moreland, for plaintiffs-appellees-appellants. Jack Greenberg, Jeffry A. Mintz, William R. Robinson, Deborah M. Greenberg, Puerto Rican Legal Defense & Education Fund, Inc., Ceasar A. Perales, Herbert Teitelbaum and Kenneth Kimerling, New York City, of counsel.

Nina G. Goldstein, New York City (Norman Redlich, Corp. Counsel, City of New York; Stanley Buchsbaum, Paula J. Omansky and Frances Loren, New York City, of counsel), for defendants-appellants-appellees.

Thomas J. Dillon, Manhasset, N. Y., for intervenors-defendants-appellants-appellees.

Edward M. Edenbaum, New York City, for Richard J. Vizzini as President, Uniformed Firefighters Association of Greater New York, amicus curiae.

Joel Field, New York City, for David McCormack as President, Uniformed Fire Officers Association, Local 854 I.A.F.F., AFL-CIO, amicus curiae.

David I. Caplan, New York City, for Jewish Rights Council, amicus curiae.

Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

As in Chance v. Board of Examiners, 458 F.2d 1167 (2 Cir. 1972), and Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Comm'n, 482 F.2d 1333 (2 Cir. 1973), we are confronted with a claim that a city has unintentionally discriminated with respect to the employment of minority group members. Here, as in Chance, the city is New York; the alleged discrimination is with respect to persons allowed to qualify for the entering grade in the Fire Department. The action was brought under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3).¹

I.

Plaintiffs, five minority individuals who had applied for employment with the Fire Department and two organizations representing minority firefighters, brought this suit as a class action in the District Court for the Southern District of New York. Their complaint alleged that the procedures used to select New York City firemen discriminated against blacks and Hispanics in violation of the equal protection clause of the Fourteenth Amendment. The defendants were the Civil Service Commission of the City of New York, the City's Department of Personnel, the chairman of the Commission and director of the Department, two members of the Commission, and then Fire Commissioner Lowery, hereafter referred to as the municipal defendants. Attacking on a broad front, plaintiffs first sought injunctive relief to prevent the Fire Department from making any more appointments based on an eligibility list reflecting performance on Exam 0159, a written civil service examination given on September 18, 1971. In addition, they sought to block further use of various other screening measures, including the Department's minimum height requirement, a requirement that every fireman have a high school or high school equivalency diploma, and the bar, arising from the combined effect of § 487a-3.0(b) of chapter 19 of the Administrative Code of New York City and § III-4.3.2(b) of the Rules and Regulations of its Civil Service Commission, against any applicant who had been convicted of a felony or of petty larceny.²

At a hearing on plaintiffs' application for a preliminary injunction, Judge Weinfeld took evidence on the alleged discriminatory impact of the written examination and on the question whether the test was sufficiently related to a fireman's job to survive constitutional attack. At the conclusion of the seven-day hearing, he suggested that the parties agree to treat the hearing as a final trial on the merits of the case under F. R.Civ.P. 65(a)(2). Both parties agreed, but the plaintiffs requested that several points, including the automatic disqualification issues, be left open. Judge Weinfeld subsequently ruled that any further evidence on these points would have to be submitted before the court's decision was handed down, and that the decision would be final as to all issues in the case except for the challenge to the Fire Department's promotional examination, which would be left open for later consideration.

On June 12, in a comprehensive opinion, the district judge, 360 F.Supp. 1265, ruled that the written examination had a discriminatory impact and that it was not sufficiently job-related to justify its use. He enjoined further reliance on the challenged eligibility list, without prejudice to the parties' applying for interim relief which would permit appointments from the list on a quota basis until a new examination could be given and a new eligibility list established. Because the injunctive relief would benefit all persons similarly situated, Judge Weinfeld declined plaintiffs' request that he designate a class. As to the automatic disqualification issues, he ruled that it was unnecessary to consider those questions, stating:

This disposition makes it unnecessary to consider the other grounds urged by plaintiffs in support of their claim, particularly since little evidence was adduced with respect thereto upon the hearing. The submissions as to these matters were included in post trial briefs or affidavits and in some instances raise issues of fact, the resolution of which would require reopening of the trial.

He added there was serious doubt whether the plaintiffs had standing to raise either the criminal conviction bar or the high school diploma requirement, since it appeared from the complaint that none of the named plaintiffs was subject to exclusion for those reasons.

Two months later, after having allowed intervention by non-minority candidates who had qualified under Exam 0159 but had not yet been appointed, the district court issued an order granting interim relief. The order instructed that in making future appointments from the challenged eligibility list, defendants would be required to hire one minority applicant for every three nonminority applicants hired. In an accompanying memorandum, the court further directed the municipal defendants "to exert every good faith effort to accelerate the establishment of a new list."³

The defendants, intervenors, and plaintiffs all appealed from various portions of the district court's decision and order. We denied an application by the defendants and intervenors for a stay but brought the appeal here on an expedited basis. As is usual in cases of this sort, we have had a number of amicus briefs filed on behalf of various individuals and organizations. However useful amicus briefs may be on an issue of first impression in this circuit, see Chance, supra, 458 F.2d at 1169 & n.5, they only add to our burdens when the controlling principles have been established and the parties are so capably represented as here.

II.

Under Chance and Bridgeport Guardians our analysis must be three-pronged. Was Judge Weinfeld "clearly erroneous" in finding that Exam 0159 had had a "racially disproportionate impact"?⁴ If not, did he err in concluding that the City had not made the requisite showing that Exam 0159 was sufficiently job-related; that is, did the City fail to prove that the disproportionate impact was simply the result of a proper test demonstrating lesser ability of black and Hispanic candidates to perform the job satisfactorily? If the district court was correct on that point also, we reach the third issue, the propriety of the relief.

The municipal defendants do not here challenge the findings of racially disproportionate impact, but the intervenors do. The basic facts are these: Roughly 11.5% of the 14,168 applicants who entered the examination halls were black or Hispanic. Yet minority members comprised only 5.6% of those who had passed the written, physical and medical examinations at the time of the hearing. Non-minority candidates thus survived the screening process at a rate more than twice that of minority candidates. Perhaps even more important, 18.4% of the whites who took the examination ranked in the top 4000 and survived the physical⁵ while the comparable figure for minority candidates was 6.6%, a disparity of 2.8 to 1.

In challenging these statistics, the intervenors attack the reliability of the two ethnicity surveys by which the figures were gathered. The first was conducted by the Vulcan Society, an organization representing black firemen. The Society posted in front of the examination halls observers who counted the minority candidates as they entered. The Fire Department itself conducted the second survey, a "sight survey" of those candidates who passed all stages of the selection process and were deemed "finally qualified." While the rather crude procedures of physical observation used in the surveys doubtless led to error in some cases, it is hard to believe that survey errors could have accounted for the striking racial imbalance that the results indicated. Indeed, it is arguable that the statistics probably underestimate the disparity between the percentage of minority candidates who took the examination and the percentage who qualified for appointment, since in the initial survey the Society instructed its observers to register candidates as minority members only when they were certain the candidates were black or Hispanic, but there is no indication that the Fire Department was similarly conservative in its survey of the candidates who qualified.

The intervenors also criticize the plaintiffs' comparison of the number of minority candidates who took the written examination with the number who finally qualified for appointment...