Berl v. Westchester County

• Decision Date: 14 September 1987
• Docket Number: No. 84 Civ. 8505 (LLS).,84 Civ. 8505 (LLS).
• Citation: 669 F. Supp. 625
• Parties: Leslie BERL and Frederick L. Anderson, Sr., Plaintiffs, v. COUNTY OF WESTCHESTER, Defendant.
• Court: U.S. District Court — Southern District of New York

669 F. Supp. 625

Leslie BERL and Frederick L. Anderson, Sr., Plaintiffs, v. COUNTY OF WESTCHESTER, Defendant.

No. 84 Civ. 8505 (LLS).

United States District Court, S.D. New York.

September 14, 1987.

Goodstein & West, New Rochelle, N.Y., for plaintiffs; Robert David Goodstein, of counsel.

Henry J. Logan, Westchester Co. Atty., White Plains, N.Y., for defendant; Peter J. Holmes, Sr. Asst. Co. Atty., of counsel.

OPINION and ORDER

STANTON, District Judge.

Leslie Berl and Frederick L. Anderson, Sr., both male correction officers, bring this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983") against Westchester County ("County"), alleging that the County failed to promote them to sergeant because of their gender. Plaintiffs seek promotion to sergeant, back pay and benefits, attorney's fees, and compensatory damages.

By agreement of the parties, the trial of this action was submitted upon the joint pre-trial order and 41 stipulated exhibits.

Facts

Plaintiffs Berl and Anderson are employed as correction officers at the Westchester correctional facility in Valhalla, New York, which is divided into Male and Female Units. Plaintiffs have received satisfactory job evaluations (Exhs. 6, 10, 11, 32) and have never been charged with disciplinary violations.

In April, 1980 plaintiffs took promotional Civil Service examination 70-338 ("70-338") for the position of correction-officer sergeant ("sergeant"). Each plaintiff passed the exam with a score of 86 and received an additional point for service longevity. Each plaintiff had a final score of 87, which was higher than any score received by a female correction officer, although some male officers received higher scores, thus deferring the time plaintiffs would be reached on the male list.

Westchester County used the 70-338 test scores to compile two Civil Service eligible lists for the position of sergeant. The lists were separated by gender—a list of male candidates, and a list of female candidates. Pursuant to N.Y.Civil Service Law § 60(2) the County limits positions involving the care of male inmates to men and those involving the care of female inmates to women. (Answer, Exh. C.) Thus, only those candidates on the female list were eligible for the position of sergeant in the Women's Unit. No males were considered for a sergeant's position in the Female Unit.

Pursuant to N.Y. Civil Service Law § 61(1) only those persons whose scores are among the top three (plus ties) remaining on the list at the time the promotion becomes available are eligible for promotion. It was not until May 21, 1984 that plaintiffs' names were "reachable" as among the top three male candidates then remaining on the list for sergeant. Three weeks earlier, each plaintiff had been interviewed by four members of the Promotion Board (Norwood E. Jackson, Warden; Frederick W. Kenney, Sr. Assistant Warden; John J. Maffucci, Commissioner; Joseph M. Stancari, Associate Warden). Plaintiffs "were not promoted as a result of those interviews." (Agreed Finding of Fact 30.)

Specifically, Berl was unanimously disapproved for a current promotion—"Career interest, somewhat reluctant to clearly explain position, I feel he's promotable but at later date. Promotable but deferred." (Jackson, Exhs. 31, 33); "Lacks direction & confidence. Did not present a forceful image regarding promotion to Sgt. Was not convincing.... Do not promote at this time." (Kenney, Exhs. 38, 40); "good attitude —has conceptual idea of what sgt. does & how to handle authority, etc. not forceful enough—re leadership role—promotable but not at this time." (Maffucci, Exhs. 12, 13) (italics in original); "Mature and responsible. Presents innovative ideas. Good candidate for future consideration —not projecting strong image at this time. Possibly result of medication and/or injury. Not convincing, not assertive. Not recommended at this time." (Stancari, Exhs. 1, 2).

The Board members also unanimously rejected plaintiff Anderson for promotion "at this time" because of his questionable leadership abilities—"Understands job, but reluctant to assert himself ... Not a strong candidate but promotable. Promotable but defferred sic." (Jackson, Exhs. 31, 34); "Good officer but lacks take charge ability. Does not appear sure of himself. Needs greater confidence before consideration for promotion.... Do not promote." (Kenney, Exhs. 38, 39); "good attitude—good employee—11 years on job. Subject is not a take charge person—creates doubt as to leadership potential. Promotable —but not at this time." (Maffucci, Exhs. 12, 14) (italics in original); "Good correction officer, but seems middle of road. Not assertive—questionable abilities —follower. Possibly promotable but not strong candidate at this time. Not recommended." (Stancari, Exhs. 1, 3).

Apparently no sergeant positions were available in the Male Unit when plaintiffs became eligible for promotion on May 21, 1984. However, one sergeant position in the Female Unit was being filled by a temporary female appointee (Jean Mason) and another by a provisional female appointee (Esther Jones). Pursuant to N.Y. Civil Service Law § 65, Westchester County may make provisional appointments only when there is no appropriate eligible list available for filling a vacancy. Apparently, prior to these appointments, the female promotional list had been exhausted.

Plaintiffs remained among the top three candidates on the 70-338 list until a superseding list was established on October 23, 1984. The superseding list, 79-106, was based on the results of a more recent Civil Service exam, which plaintiffs took but on which their scores apparently did not place them among the top three.

Apparently no sergeant positions became available in the Male Unit during the five months which plaintiffs remained eligible for promotion based on the 70-338 list. However, apparently two new openings occurred in the Female Unit and were filled by a temporary appointee (Deborah Johnson) and a provisional one (Marie Byrne).

Two months after the superseding list was established, a female correction officer (Barbara Gibson) received a temporary appointment to sergeant in the Female Unit.

Discussion

A. Title VII Claim

Title VII prohibits discrimination in employment by making "it ... an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a). The statute forbids discrimination against either sex. See Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 386-87 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Torres v. Wisconsin Dep't of Health & Social Services, 639 F.Supp. 271, 277 (E.D.Wis.1986).

1. Direct Evidence

In a Title VII disparate treatment case,¹ the plaintiff bears the burden of persuading the trier of fact that he or she has been the victim of intentional discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 256, 101 S.Ct. 1089, 1093, 1095, 67 L.Ed.2d 207 (1981). At the close of the evidence, the fact finder must decide whether the defendant intentionally discriminated against the plaintiff. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Here, plaintiffs rely upon defendant's policy against considering males as sergeants in the Female Unit to establish discriminatory treatment. When direct evidence of discrimination is available, problems of proof are the same as in any other civil case. Goodman v. Lukens Steel Co., 777 F.2d 113, 129-30 (3d Cir. 1985) (citing cases), aff'd, ___ U.S. ___, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987).² The County contends that the negative evaluations given plaintiffs caused their nonpromotions, rather than its policy against appointing males as sergeants in the Female Unit.³

Standing alone, in this case the policy does not establish that the County intentionally discriminated against plaintiffs in violation of Title VII because sergeant positions periodically were available in the Male Unit. Plaintiffs were interviewed and evaluated but not recommended for the Male Unit sergeantcies because of their then doubtful leadership abilities. Accordingly, defendant's policy alone does not prove that plaintiffs were the victims of intentional discrimination. Contrast Garrett v. Okaloosa County, 734 F.2d 621 (11th Cir.1984) (Title VII violation when defendant refused to consider female plaintiffs for position of correctional officer, jobs they were qualified to perform, and BFOQ defense rejected); Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079 (8th Cir.) (Title VII violation when defendant only promoted males to correction officer II status, no claim was made that the female plaintiff was unable to perform the required duties, except that she was female, and BFOQ defense rejected), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980); Torres v. Wisconsin Dep't of Health & Human Services, 639 F.Supp. 271 (E.D.Wis.1986) (Title VII violation when only females were eligible for sergeant CO-3 positions, male plaintiffs were demoted from that position, whose duties they were performing satisfactorily, and BFOQ defense rejected); Edwards v. Dep't of Corrections, 615 F.Supp. 804 (M.D.Ala.1985) (Title VII violation when male plaintiff would have been...