Acha v. Beame, 297

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before SMITH, MANSFIELD and OAKES; J. JOSEPH SMITH; Appellants, women police officers of the New York City Police Department, appeal from an opinion and order of the United States District Court for the Southern District of New York, Kevin T. Duffy
• Citation: 570 F.2d 57
• Parties: 16 Fair Empl.Prac.Cas. 526, 15 Empl. Prac. Dec. P 8040 Beraldine L. ACHA and Arlene M. Egan, each Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Abraham D. BEAME, Individually and in his capacity as Mayor of the City of New York, Michael J. Codd, Individually and in his capacity as Police Commissioner of the New York City Police Department, and the City of New York, as a public employer, Defendants-Appellees. ocket 77-6119.
• Docket Number: No. 297,D,297
• Decision Date: 12 January 1978

Page 57

570 F.2d 57 16 Fair Empl.Prac.Cas. 526, 15 Empl. Prac.
Dec. P 8040 Beraldine L. ACHA and Arlene M. Egan, each Individually and
on behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
Abraham D. BEAME, Individually and in his capacity as Mayor
of the City of New York, Michael J. Codd, Individually and
in his capacity as Police Commissioner of the New York City
Police Department, and the City of New York, as a public
employer, Defendants-Appellees. No. 297, Docket 77-6119. United States Court of Appeals,
Second Circuit. Argued Oct. 12, 1977.
Decided Jan. 12, 1978.

Page 59

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

Leonard Koerner, New York City (W. Bernard Richland, Corp. Counsel, City of New York, L. Kevin Sheridan and Judith A. Levitt, New York City, of counsel), for defendants-appellees.

Abner W. Sibal, Gen. Counsel, Equal Employment Opportunity Commission, Washington, D. C., Joseph T. Eddins, Associate Gen. Counsel, Charles L. Reischel, Asst. Gen. Counsel, Washington, D. C., on the brief for EEOC as amicus curiae.

Before SMITH, MANSFIELD and OAKES, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Appellants, women police officers of the New York City Police Department, appeal from an opinion and order of the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge, dated July 28, 1977 which denies specific members of the plaintiff class preliminary injunctive relief, and which vacates a prior judgment granting 38 members of the plaintiff class partial summary judgment. For the reasons noted below, we find that Judge Duffy acted within the proper scope of his discretion, and we consequently affirm the judgment of the district court.

I.

Appellants commenced this class action against Abraham Beame, the Mayor of New York City, Michael T. Codd, the Police Commissioner of the New York City Police Department, and the City of New York in June, 1975. They sought to enjoin the layoff of female police officers who were slated to be separated from the police force on or about June 30 of that year. Their complaint alleged that layoffs pursuant to a "last-hired, first-fired" policy perpetuate the effects of discriminatory hiring practices by the Police Department, and consequently are forbidden by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and by the fourteenth amendment to the United States Constitution and 42 U.S.C. § 1983.

The history of the employment of women by the New York City police force was described in some detail in our first treatment of this case. Acha v. Beame, 531 F.2d 648 (2d Cir. 1976). Given the narrow focus of the issue presented here, there is no need to rehearse the fine points of that history. It suffices to note that prior to 1973 and perhaps later than this the Police Department officially distinguished by sex between two job categories: "policewomen" and "patrolman." Policewomen were hired in very small numbers, their employment based on separate examinations which established separate hiring lists. Following a partial hiring freeze which lasted from 1969

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to 1973, women were still hired in relatively small numbers from eligibility lists which may have been sex-segregated. Accordingly, when the Police Department was forced to lay off over 5,000 male and female police officers due to budgetary exigencies, women were disproportionately affected: the proposed layoffs threatened to reduce the number of women on the force by 73.5%, while only 23.9% Of the men would be affected.

Prior Proceedings

This case reaches us after a particularly complicated procedural development which lies at the heart of the matter before us on this appeal. On June 25, 1975, the named plaintiffs filed charges with the Equal Employment Opportunity Commission and the New York City Commission on Human Rights. The next day they commenced this action. Following a hearing, the district court denied the appellants' application for a preliminary injunction and dismissed the complaint as barred by the terms of §§ 703(h) and (j) of Title VII. This court reversed and remanded the case, holding that a seniority system which perpetuates the effects of past discriminatory behavior is not "bona fide," and hence not protected by the terms of the Act. Accordingly any woman who could show that absent discrimination, she would have been hired early enough to withstand the 1975 layoffs would demonstrate a remediable violation of Title VII. ¹

In May, 1976, the appellants moved for class certification and summary judgment for class members who, but for their sex, would have been appointed Police Trainees ² on or before May 8, 1970, a date sufficiently early to withstand the layoffs. Appellees cross-moved for summary judgment, asserting that the statute of limitations and laches barred the action. ³ On July 16, 1976, Judge Duffy certified the class consisting of female police officers who were laid off on or about June 30, 1975, and granted partial summary judgment and injunctive relief for 38 members of the appellant class. He denied the appellees' cross-motion for summary judgment, basing his opinion on Evans v. United Air Lines, 534 F.2d 1247 (7th Cir. 1976). ⁴ Judge Duffy granted the 38 women revised seniority to a date not later than May 8, 1970, subject to modification after further hearings, and reserved judgment on the appellants' claims for back pay, reinstatement, and pension contributions. ⁵ Finally, he certified this judgment as final, pursuant to Rule 54(b), Fed.R.Civ.P., and appointed a special master to hear the claims of the remaining class members.

On August 30, 1976, the appellees appealed from the district court's partial summary judgment, but the appeal was dismissed for failure to docket. Subsequently, the special master held a number of hearings, and the district court affirmed these findings with respect to a number of additional members of the appellant class.

On June 15, 1977 appellees moved, pursuant to Rules 56 and 60(b), Fed.R.Civ.P., for relief from the partial summary judgment, and renewed their earlier cross-motion for summary judgment. These motions were based on intervening decisions of the United States Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396

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(1977), and United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Appellants opposed these motions, and moved for confirmation of additional findings by the special master.

On July 28, 1977, Judge Duffy granted the appellees' motion to vacate the partial summary judgment, denied the appellees' motion for summary judgment without prejudice, and denied the appellants' application for injunctive relief. ⁶

It is this memorandum and order which is the subject of this appeal.

The District Court Decision

In vacating the partial summary judgment, Judge Duffy acknowledged that the judgment was, pursuant to Rule 54(b), Fed.R.Civ.P., "final" for purposes of determining its res judicata effect. He held, however, that under Rule 60(b), Fed.R.Civ.P., he was empowered to relieve a party from a final judgment, when, as a matter of equity, such relief was appropriate. He asserted that in the instant case it was appropriate to vacate the earlier judgment so that all class members would be subject to the same relief.

Judge Duffy held further that the opinions of the United States Supreme Court in Evans and Teamsters contradicted the reasoning which supported the initial grant of the partial summary judgment, and undermined the legitimacy of its prospective application. Evans, he concluded, held that the 300-day statute of limitations in Title VII was to be strictly applied to acts of discriminatory hiring, and could not be met by applying a theory of continuing harm caused by the initial failure to hire. Teamsters, he found, held that a Title VII claim cannot be premised on pre-Act discrimination, even if the effect of such discrimination is perpetuated, after the effective date of the Act, by a facially neutral seniority system.

Judge Duffy concluded that the June, 1975 layoffs were, on the theory advanced by the appellants, "immunized," and that the appellants were "effectively restored to their pre-summary judgment status." To succeed at trial, then, the appellants would have to be able to demonstrate a Title VII violation occurring after the effective date of the Act, and within the period of the statute of limitations. Such a violation would occur if, absent discrimination, a woman would have been hired earlier than her actual date of appointment.

Judge Duffy found that the appellants' § 1983 claim was governed by a three-year statute of limitations, by the purposeful discrimination requirement of Washington v. Davis, 426 U.S. 229, 238-48, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and by the definition of "person" developed in Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), City of Kenosha v. Bruno, 412 U.S. 507, 511-13, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), and their progeny.

He held further that any sex-based employment distinctions made by the Police Department could be defended only by a showing of "substantial justification," but left the definition of this term for further development at trial.

II.

Appellants assert that Judge Duffy's Rule 54(b) certification of the partial summary judgment made that judgment "final" and res judicata as to their claims. They argue further that Rule 60(b) was used improperly to vacate that judgment, and that the judgment, accordingly should be reinstated.

We find it unnecessary to consider the issue of the applicability of Rule 60(b) in this context, however, for we have determined that the certification of the partial summary judgment, pursuant to Rule 54(b), was improper and without operative effect. Rule 54(b) reads in pertinent part:

(T)he court may direct the entry...