Berkman v. City of New York
| Decision Date | 04 March 1982 |
| Docket Number | No. 79 C 1813.,79 C 1813. |
| Parties | Brenda BERKMAN, on behalf of herself and a class consisting of all similarly situated women, Plaintiff, v. The CITY OF NEW YORK; Edward Koch, individually and as Mayor of the City of New York; New York City Fire Department; Augustus Beekman, individually and as Fire Commissioner of the City of New York; New York City Department of Personnel; Michael Nadel, individually and as Director of Personnel of the City of New York; Thomas Roche, individually and as former Director of Personnel of the City of New York; Civil Service Commission of the City of New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
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Women's Rights Clinic of the Washington Square Legal Services, Inc. by Laura Sager, and Debevoise & Plimpton by Robert L. King, Bart R. Schwartz, Jeffrey N. Drummond, Kathryn Quirk, New York City, for plaintiff.
Frederick A.O. Schwarz, Corp. Counsel of the City of New York by Norma Kerlin, Thomas C. Crane, Gary P. Shaffer, Asst. Corp. Counsels, New York City, for defendants.
Norman Teitler, Rego Park, N. Y., attorney for intervenor, Uniformed Firefighters Association.
This is an action brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1871, 42 U.S.C. § 1983; the fourteenth amendment to the United States Constitution; and Section 296 of the New York Human Rights Law (Executive Law), seeking declaratory and injunctive relief and damages to redress alleged sex-based discrimination against plaintiff and the class she represents in connection with the physical test portion of New York City's Examination 3040 ("Exam 3040") for the entry level position of firefighter in New York City.
Plaintiff, Brenda Berkman, is a twenty-nine-year-old woman who passed the written portion of Exam 3040, but failed the physical test portion, which she took on February 22, 1978. The class she represents consists of 410 women who took the written portion of Exam 3040 and are alleged either to have taken the physical portion of Exam 3040 and failed it or to have been deterred from taking it as a result of sex discrimination by defendants. Defendants are the City of New York, its Mayor, the City's Fire Department and its Commissioner, the City's Personnel Department, its Director and former Director, and the Civil Service Commission of the City of New York. Appearing as Intervenors pursuant to this Court's Order of April 10, 1981, are the Uniform Firefighters Association ("UFA") and the Uniform Fire Officers Association ("UFOA"), both employee organizations representing current job incumbents.
The trial of this case was conducted before the undersigned, sitting without a jury, over several weeks between September and December 1981. For the reasons set forth herein, I conclude that the physical portion of Exam 3040 discriminated against plaintiff and the class she represents on the basis of their sex and that injunctive relief is appropriate prohibiting further use of the eligibility list established pursuant to Exam 3040 except on a showing of compelling necessity, directing the preparation of a new physical exam which does not discriminate against women, and awarding plaintiff interim and other relief to secure compliance with the requirements of the Civil Rights Act of 1964, as amended. What follows sets forth the findings of fact and conclusions of law on which these determinations are based, as required by Rule 52(a) of the Federal Rules of Civil Procedure.
Jurisdiction over plaintiff's Title VII action exists under 42 U.S.C. § 2000e-5. Plaintiff, by filing her complaint with the Equal Employment Opportunity Commission on May 16, 1978, has complied with the time limitations imposed by that section with respect to all of the named defendants except the defendant Fire and Personnel Departments and the Director of the latter Department, who were not named in plaintiff's administrative complaint. As to those defendants not named in plaintiff's administrative complaint jurisdiction exists since there is substantial identity between those defendants who were named in the conciliation proceeding and those not named and since those not named had notice of the pendency of the conciliation proceedings. Vulcan Society of Westchester County v. City of White Plains, 82 F.R.D. 379 (S.D.N. Y.1979).
Jurisdiction exists over plaintiff's claim under 42 U.S.C. § 1983 and the fourteenth amendment by virtue of 28 U.S.C. § 1343. Pendant jurisdiction exists over plaintiff's claim under New York State's Human Rights Law.
As of the end of 1980, New York City employed in excess of 285,000 persons. Of these, approximately 175,000 (including those in the City's Fire Department) were hired by the Department of Personnel. The balance were employed by independent agencies such as the Board of Education and the Off-track Betting Corporation.
Of the approximately 175,000 employed by the Department of Personnel, approximately 168,000 (including those in the City's Fire Department) were in the competitive class, a class including all positions for which it is practicable to determine the merit and fitness of candidates by competitive examination.
Employment statistics for the uniformed force of the New York City Fire Department for the period 1973 through 1981 were as follows:
Year Firemen Officers Total
1973 10,720 2,548 13,394
1974 10,426 2,538 13,091
1975 9,089 2,347 11,548
1976 8,304 2,267 10,662
1977 8,847 2,329 11,271
1978 8,513 2,375 10,979
1979 8,966 2,404 11,466
1980 8,765 2,460 11,048
1981 9,042 2,563 11,616
The Fire Department of the City of New York is charged with responsibility for extinguishment, prevention and investigation of fires occurring in the City. The most recent available statistics for operational firefighting incidents (1979) indicate a total of close to 350,000 incidents annually requiring Fire Department attention. The largest number of these incidents have been false alarms (162,529). A total of 43,072 of these incidents involved structural fires, of which the largest number occurred in residential buildings (31,504), the next largest, in vacant buildings (5,698), followed by fires in commercial (4,227) and public structures (1,643). Non-structural fires (71,298) exceeded structural fires. In addition to its ordinary firefighting duties, the Fire Department was, in 1979, called upon to respond to close to 72,250 other emergencies of various types.
The Fire Commissioner is the head of the Department, responsible for policy decisions. The Chief of Department is charged with operational responsibility. Under the Chief of Department the uniformed force of the Department consists of the assistant chiefs, deputy assistant chiefs, deputy chiefs, battalion chiefs, chief medical officer, medical officers, chaplains, captains, lieutenants, marine engineers, pilots, and firemen.
The uniformed force is organized into divisions, battalions, companies, and other operational units. A division is composed of one or more battalions and is commanded by a battalion chief. A company is composed of its captain, one or more lieutenants, and the firefighters assigned to it.
The command structure of Department operations consists of borough commands in each of the five boroughs of New York City. Each borough command (with the exception of Staten Island) is composed of several divisions, the number varying in each borough. The borough commanders report to the Chief of Operations.
Companies are divided into engine companies, ladder companies, rescue companies, and marine companies. An engine company consists of a pumper apparatus and an assigned complement of personnel (typically, one captain, three lieutenants, and 20 or 25 firefighters). One platoon (typically, one officer and four or five firefighters) is assigned to the apparatus on each tour of duty. The pumper apparatus consists of pumping equipment and carries lengths of hoseline, nozzles, and other equipment. The engine company is primarily responsible for the extinguishment of fires.
A ladder company consists of a ladder truck apparatus and an assigned complement of personnel (typically, one captain, three lieutenants, and 25 firefighters). One platoon (typically, one officer and five firefighters) is assigned to the apparatus on each tour of duty. The ladder truck apparatus includes an extension ladder, portable ladders, tools and equipment for entry and ventilation of burning buildings, and a variety of other equipment. The members of the ladder company perform operations at a fire scene exclusive of extinguishment, including forcible entry, ventilation, search and rescue, and overhauling, the process of seeking hidden sources of fire after the visible fire is extinguished.
There are at present 208 engine companies and 138 ladder companies in the Department. These are currently housed in 233 firehouses, most of which quarter one ladder company and one engine company.
In addition to engine companies and ladder companies, there are rescue and marine companies. A rescue company consists of the rescue apparatus and an assigned complement of personnel (one captain, three lieutenants and 25 firefighters). A platoon (one officer and five firefighters) is assigned to the apparatus on each tour of duty. The members of a rescue company are assigned on an ad hoc basis at fires to augment ladder or engine company personnel. They also perform specialized search and extrication tasks, utilizing special tools carried on the apparatus for use in emergencies. There are four rescue companies in the City, one assigned to each borough, except Staten Island. Rescue...
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