Barhold v. Rodriguez
| Decision Date | 08 December 1988 |
| Docket Number | No. 119,P,AFL-CI,D,119 |
| Citation | 863 F.2d 233 |
| Parties | 48 Fair Empl.Prac.Cas. 786, 48 Empl. Prac. Dec. P 38,514, 57 USLW 2418 William BARHOLD, Frederick Flood, Rita Flynn-VanEs, Ruby K. Russell, John Sullivan, and Rand Condell as President of the New York State Public Employees Federation,laintiffs-Appellants, v. Ramon J. RODRIGUEZ, Individually and as Chairman of the New York State Division of Parole; Edward Elwin, Individually and as Executive Director of the New York State Division of Parole; Martin F. Kelly, Individually and as Director of Administration of the New York State Division of Parole; Henry P. Bankhead, Individually and as Director of Personnel of the New York State Division of Parole; Omoye Cooper, Individually and as Affirmative Action Officer of the New York State Division of Parole; the Division of Parole; Mario Cuomo, Governor and Chief Executive Officer of the State of New York; and the State of New York, Defendants-Appellees. ocket 88-7361. |
| Court | U.S. Court of Appeals — Second Circuit |
Nancy Burritt, Albany, N.Y. (Richard E. Casagrande, Albany, N.Y., of counsel), for plaintiffs-appellants.
Michael S. Buskus, Asst. Atty. Gen., State of N.Y., Albany, N.Y. , for defendants-appellees.
Before MESKILL, PIERCE and WINTER, Circuit Judges.
Plaintiffs appeal the decision of the United States District Court for the Northern District of New York, McAvoy, J., denying their motion for summary judgment and granting defendants' motion for summary judgment. Appellees are the New York State Division of Parole, certain of its employees, New York Governor Mario Cuomo and the State of New York. Plaintiffs-appellants Flood, Flynn-VanEs and Sullivan are employees of the Division with at least ten years seniority service with the State of New York. They challenge an affirmative action plan (plan), designed and implemented by the Division, as violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The district court held that Barhold, Russell and Condell lacked standing. Only Barhold and Russell challenge that ruling on appeal. Appellees in their brief say they "withdraw their defense of lack of standing," Br. of Appellees at 18 n. 8. This, of course, they cannot do. Standing is a jurisdictional matter; the defendants are mistaken in their notion that a defense of lack of standing can be "withdrawn." To the contrary, insofar as standing is an article III requirement for jurisdiction, the parties do not have the power to confer such jurisdiction upon the Court by conceding the standing of certain plaintiffs. See In re Stable Mews Associates, 778 F.2d 121, 124-25 (2d Cir.1985). In any event, we believe the district court was correct in its ruling that Barhold and Russell do not have standing. Both appellants have been reassigned under the plan; they have not been prevented from relocating and have sustained no cognizable injury. Plaintiffs' allegation that New York's policy of "stare decisis " serves to provide them with standing is insufficient to support article III jurisdiction. Their argument translates into one that equates the danger of collateral estoppel with injury. Plaintiffs fail to note that in the absence of initial injury-- i.e., a loss of reassignment opportunity--there is no reason to apply principles of stare decisis to either Barhold or Russell. As they already have received their requested reassignments, there is no danger that an adverse decision would affect them; similarly, relief would not be necessary should the district court's decision on remand be favorable to them.
In this opinion we refer to the plaintiffs as "Seniors" and the defendants as "Division."
The district court concluded that Division had shown a history of past discrimination through statistical evidence, therefore proving a compelling state interest. It also concluded that the plan was narrowly tailored to meet that compelling state interest. The court therefore concluded that the plan did not violate the Constitution and granted summary judgment to Division. We affirm that part of the district court's order denying summary judgment to Seniors, vacate that part granting summary judgment to Division, and remand for further proceedings.
This appeal involves a challenge by certain New York State employees of varying backgrounds to an affirmative action plan promulgated by their employer, the Division. The plan was drawn up in response to what the Division perceived as an under-representation of women and minorities in parole officer positions outside the New York City area. J.App. at 252.
Parole officers in New York State are hired on a statewide basis; when hired, an officer cannot choose the office in which he or she wishes to work. Id. at 229. After being hired, however, officers are able to request a reassignment from one office in the state to another; in the past, priority for these reassignments was based, through longstanding practice, on seniority. Id. at 230. Nevertheless, the Division always reserved the right to use bases other than seniority to determine who would be reassigned, and had made occasional reassignments for reasons of hardship and personnel relations. Id. at 67, 77, 111, 427-28, 458-59.
When a position opened up at an office, the Division would first seek current employees who wished to transfer to fill the position. If there were no such requests, the Division would then look to laid-off employees. Finally, if there were no former or current employees interested, the Division would open the position to the Civil Service new hire list. Id. at 311; Br. of Appellants at 7. Most senior employees requested reassignment out of New York City, filling any vacancies that occurred upstate or on Long Island. As a result, most positions that were opened to new hires were in New York City, and recruitment efforts that increased numbers of women and minorities in the Division only did so there.
At the time the Division instituted the plan, the disparity between the composition of New York City parole officers and other parole officers in the state was evident. According to Division's statistics, even after increased recruitment efforts, women and minorities comprised less than twelve percent of the parole officers in upstate New York and Long Island, while they comprised more than forty percent of the officers in New York City. J.App. at 265. To correct this situation, the Division designed its affirmative action plan to make seniority a factor in all reassignments, but the sole factor in only one-quarter of them. The remaining three-quarters were to be made on the basis of seniority, race and gender. Three lists were created, consisting of the names of White females, Blacks, and Hispanics; a fourth was designated as "all employees." Id. at 52-53. Each region identified as unrepresentative, based on comparisons of actual employees to available workers in New York State with comparable job skills, was assigned a hiring goal by which to assess progress. Id. at 250-61.
The plan took effect in January 1986, with reassignments made on a rotating basis from the four lists. Although scheduled to end in a year, the plan was modified in May 1986 after preliminary results showed some realignment of workforce composition. Id. at 57-59. As modified, the plan called for all reassignments to be made on the basis of seniority, but reserved to the Division the right to make up to half of all reassignments on other bases, including affirmative action goals. Id. at 58. During the first year of the plan and its modifications, over seventy percent of all reassignments were of White males.
Id. at 272. The modified plan has been extended twice, so that it is now scheduled to end in January 1989. Id. at 215, 247.
Seniors brought this action in March 1986, challenging the plan as discriminatory on the basis of race, gender and national origin in violation of the Equal Protection Clause of the Fourteenth Amendment. The district court denied a request for a preliminary injunction, id. at 116, and the parties began discovery. On October 30, 1987, Seniors moved for summary judgment, and Division cross-moved for summary judgment on January 22, 1988. The district court, ruling from the bench, granted Division's motion without making detailed findings of fact. Id. at 23-24. Seniors claim that their motion should have been granted and ask that we reverse the district court's grant of Division's motion.
In deciding a motion for summary judgment, the district court must determine if there is an absence of any genuine issue of material fact. Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). While the district court need not make findings of fact, Liberty Lobby, 477 U.S. at 250, 106 S.Ct. at 2511, it "must make a factual determination that the employer has a strong basis in evidence for its conclusion that remedial action was necessary." Wygant v. Jackson Board of Education, 476 U.S. 267, 277, 106 S.Ct. 1842, 1848, 90 L.Ed.2d 260 (1986) (plurality opinion). A history of past discrimination is sufficient to allow the government to take remedial action. United States v. Paradise, 480 U.S. 149, 167, 107 S.Ct. 1053, 1065, 94 L.Ed.2d 203 (1987) (plurality opinion) (citing Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (opinion of Powell, J. ); id. at 286, 106 S.Ct. at 1853 (O'Connor, J., concurring)).
On review, we cannot disturb factual findings of the district court unless they are clearly erroneous, Amadeo v. Zant, --- U.S. ----, ----, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988), but we review questions of law de novo, Pierce v. Underwood, --- U.S. ----, ----, 108 S.Ct. 2541,...
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