Acha v. Beame, 397

• Decision Date: 19 February 1976
• Docket Number: No. 397,D,397
• Citation: 531 F.2d 648
• Parties: 12 Fair Empl.Prac.Cas. 257, 11 Empl. Prac. Dec. P 10,740 Beraldine L. ACHA and Arlene M. Egan, each Individually and on behalf of all others similarly situated, Appellants, v. Abraham D. BEAME, Individually and in his capacity as Mayor of the City of New York, et al., Appellees. ocket 75--7388.
• Court: U.S. Court of Appeals — Second Circuit

Page 648

531 F.2d 648

12 Fair Empl.Prac.Cas. 257,

11 Empl. Prac. Dec. P 10,740

Beraldine L. ACHA and Arlene M. Egan, each Individually and on behalf of all others similarly situated, Appellants, v. Abraham D. BEAME, Individually and in his capacity as Mayor

of the City of New York, et al., Appellees.

No. 397, Docket 75--7388.

United States Court of Appeals, Second Circuit.

Argued Dec. 5, 1975.

Decided Feb. 19, 1976.

Murray A. Gordon, New York City, for appellants.

Leonard Koerner, New York City (W. Bernard Richland, Corp. Counsel, New York City, L. Kevin Sheridan, Gregory D. Frost, New York City, on the brief), for appellees.

Lutz Alexander Prager, Atty., Equal Employment Opportunity Commission, Washington, D.C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Attys., Washington, D.C., on the brief), as amicus curiae.

Before KAUFMAN, Chief Judge, and SMITH and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

This class action by two former female police officers of the New York City Police Department raises important questions as to the effect of a facially neutral seniority system on enforcement of the national policy against sex discrimination. Faced with notice of layoff because of New York City's well-publicized fiscal problems, plaintiffs brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1983 and the fourteenth amendment against the City of New York, its Mayor and its Police Commissioner. The gist of the complaint was that since the threatened layoffs were based on seniority, they were sex-discriminatory because women had been prevented from obtaining the seniority necessary to avoid layoff by defendants' unlawful discrimination against them in the past. Judge Kevin T. Duffy of the United States District Court for the Southern District of New York denied plaintiffs' motion for a preliminary injunction and dismissed the complaint; the judge also refused permission to amend the complaint. In their appeal to this court, plaintiffs are supported by the Equal Employment Opportunity Commission as amicus curiae. For reasons set forth below, we reverse the order of the district court and remand for further proceedings.

I

The facts are simple and, for purposes of this appeal, undisputed. Appellants Beraldine L. Acha and Arlene M. Egan represent a class of 371 female officers who were laid off on June 30, 1975. Before 1973, women were hired by the Police Department only for the job title Policewoman, for which there was an official quota amounting to 1.34 per cent of the total number of police officers. At the end of 1972, there were 355 Policewomen positions as compared to more than 26,000 Patrolmen. From 1964 to 1969, only two examinations for Policewoman were given, while many more examinations were offered for men applying to be Patrolmen. From 1969 to 1973, a hiring freeze applied to both Patrolman and Policewoman positions, but men could apparently be promoted to Patrolman from the position of Police Trainee, which was not open to women.

In January 1973, the titles of Patrolman and Policewoman were merged into the title of Police Officer. Men and women appointed thereafter received the same medical examination and the same training. However, appointments were made from separate lists in a ratio of four men to one woman, regardless of their comparable grades on examinations that had been identical, although given separately. Thus, some men were appointed prior to women who had received higher grades. By June 1975, the percentage of female police officers was 2.62 per cent.

On June 30, 1975, New York City laid off 4,000 police officers because of its fiscal crisis. These layoffs were made in accordance with section 80 of the New York Civil Service Law, reproduced in the margin, ¹ which provides for the familiar last-hired, first-fired method of layoff. Since so many females had been hired only recently, this system affected them much more than the males. Judge Duffy found that 'The layoffs now proposed will reduce the number of females on the police force by 73.5 per cent, while only 23.9 per cent of the males will be discharged.'

Plaintiffs' complaint alleges that the facially neutral seniority system of section 80 actually perpetuated the past discriminatory hiring policies of the Police Department. For this reason, the layoffs violated plaintiffs' statutory rights under Title VII and their constitutional rights under the equal protection and due process clauses of the fourteenth amendment. In a brief memorandum opinion, Judge Duffy held, in effect, that defendants could not have acted illegally in following the mandate of section 80, which was a bona fide seniority system. In support of this conclusion, the judge cited two recent circuit court rulings, ² which relied heavily on the exception in section 703(h) of Title VII, 42 U.S.C. § 2000e--2(h), for an employer applying 'different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system.' ³ The judge also held that granting plaintiffs relief would constitute preferential treatment on the basis of sex, thus violating section 703(j) of Title VII, 42 U.S.C. § 2000e--1(j). ⁴

II

Appellants claim that the district court erred in various respects, both procedural and substantive. As to the former, appellants argue that the complaint should not have been dismissed on a motion for a preliminary injunction and that they should have been allowed to amend the complaint to clarify that they were the actual victims of prior discrimination. See Watkins v. United Steel Workers of America, Local 2369, 516 F.2d 41 (5th Cir. 1975). On the substantive issues, plaintiffs' principal claim is that the grossly disproportionate layoff of women under section 80 violated Title VII, despite section 703(h).

We turn to the procedural issues first. Judge Duffy dismissed the action on the merits although defendants had made no motion for such relief. Perhaps the judge regarded the hearing before him, at which no evidence was taken, as a consolidation of the hearing on plaintiffs' motion for a preliminary injunction with a trial on the merits, pursuant to Fed.R.Civ.P. 65(a)(2). If so, the failure to give plaintiffs notification of consolidation was improper, Johnson v. White, 528 F.2d 1228, 1231 (2d Cir. 1975), and the error was prejudicial, not harmless. See 7 Moore, Federal Practice P65.04(4). Defendants argue that the judge's action was justified because the complaint failed to state a cause of action and could not state one, even if amended, since layoffs under section 80, see note 1 supra, could not be unlawful. To the substantive issues raised by this argument we now turn.

After the job gains by minorities in the decade since enactment of Title VII, the recent downturn in the national economy has produced a disproportionately adverse effect on minority group employment. One significant cause has undoubtedly been the common use of the last-hired, first-fired seniority concept embodied in section 80. In the last few years, there have been many suits challenging use of such seniority systems on the ground that they violated Title VII or the Constitution. Courts have reached conflicting results, ⁵ and the issue is involved in a case presently pending before the Supreme Court. See Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir. 1974), cert. granted, 420 U.S. 989, 95 S.Ct. 1421, 43 L.Ed.2d 669 (1975), argued Nov. 3, 1975, 44 U.S.L.W. 3273. We believe that the proper resolution of the controversy before us is indicated by two prior decisions in this circuit, the latter of which was too recent for Judge Duffy to take into account.

The critical issue in this litigation-- and in most of the cases listed in note 5 supra--is whether a facially neutral seniority system used to select the employees laid off is necessarily insulated from attack by section 703(h), quoted in note 3 supra. In United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971), we faced the same question in a somewhat different context. In that case, the United States charged that Bethlehem, with the acquiescence of various unions, had discriminated for decades in the hiring and job assignment of blacks at its steel plant in upstate New York. As a result, the comparatively few blacks who were hired were usually shunted off to 11 departments containing the lower-paid and more unpleasant jobs. The seniority system in effect was, for the most part, departmental rather than plant-wide. Transfers were discouraged because a transfering employee lost the seniority and other benefits he had enjoyed in his former department. Bethlehem argued to the district judge that the seniority and transfer provisions were typical of the steel industry, were necessary for safety and efficiency, and had not been instituted or continued for discriminatory reasons. Chief Judge Henderson rejected these contentions, and we affirmed, holding that:

The pervasiveness and longevity of the overt discriminatory hiring and job assignment practices, admitted by Bethlehem and the unions, compel the conclusion that the present seniority and transfer provisions were based on past discriminatory classifications. . . . Accordingly, Chief Judge Henderson's conclusions that the continued use of the seniority and tranfer provisions perpetuated discrimination and therefore violated the Act were surely correct.

446 F.2d at 659.

However, although the district judge ordered transfer priority for employees in the 11 segregated departments, he did not grant the Government all the relief it had sought. The judge refused to order that transferees from the 11 departments should lose no pay and should be able to use their plant-wide seniority for all purposes in their new department. On these issues, we reversed the district judge. We specifically rejected the argument...