Chance v. Board of Examiners and Bd. of Euc. of City of New York

• Decision Date: 17 May 1976
• Docket Number: 1251,AFL-CI,D,Nos. 1112,I,s. 1112
• Parties: 11 Fair Empl.Prac.Cas. 1450, 11 Empl. Prac. Dec. P 10,633, 12 Empl. Prac. Dec. P 11,091 Boston M. CHANCE, and Louis C. Mercado, individually on behalf of all others similarly situated, Plaintiffs-Appellees, v. The BOARD OF EXAMINERS AND the BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., Defendants-Appellants, and Council of Supervisors and Administrators of the City of New York, Local 1, SASCO,ntervenor-Appellant. ockets 75-7161 to 75-7164.
• Court: U.S. Court of Appeals — Second Circuit

Page 993

534 F.2d 993

11 Fair Empl.Prac.Cas. 1450,

11 Empl. Prac. Dec. P 10,633,

12 Empl. Prac. Dec. P 11,091

Boston M. CHANCE, and Louis C. Mercado, individually on behalf of all others similarly situated Plaintiffs-Appellees, v. The BOARD OF EXAMINERS AND the BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., Defendants-Appellants and Council of Supervisors and Administrators of the City of New York, Local 1, SASCO, AFL-CIO, Intervenor-Appellant.

Nos. 1112, 1251, Dockets 75-7161 to 75-7164.

United States Court of Appeals Second Circuit.

Argued Aug. 11, 1975.

Decided Jan. 19, 1976.

On Rehearing May 17, 1976.

Kaye, Scholer, Fierman, Hays & Handler, New York City, for The Board of Examiners.

W. Bernard Richland, Corp. Counsel, New York City (L. Kevin Sheridan, Leonard Koerner, Leonard Bernikow, New York City, of counsel), for The Board of Education of the City of New York.

Max H. Frankle, Leonard Greenwald, New York City (Gretchen White Oberman, New York City, of counsel), for Council of Supervisors and Administrators of the City of New York, Local 1, SASCO, AFL-CIO.

Jack Greenberg, Deborah M. Greenberg, Elizabeth B. DuBois, Jeanne R. Silver, George Cooper, New York City, for plaintiffs-appellees.

Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York which directed the Board of Education of the City of New York to "excess" supervisory personnel in accordance with a formula imposing racial quotas upon the excessing process. Excessing rules provide in brief that when a position in a school district is eliminated, the least senior person in the job classification used to fill that position shall be transferred, demoted or terminated. It is a system which recognizes the value of pedagogical experience and seniority, and its use is mandated by the New York Education Law ¹ and the Collective Bargaining Agreement between the Board of Education and the supervisors' union. ² We believe that the District Court erred in injecting into this plan a requirement for conformity to a racial quota formula, and we therefore reverse.

Fortunately for both reader and writer, we find it unnecessary to recount at length the history of this extended litigation. A summary of the proceedings which now bring the parties to our Court for the fourth time ³ will suffice.

This civil rights class action was begun in 1970 for the purpose of correcting an underrepresentation of minorities in supervisory positions in the New York City school system. Employment qualification tests, one of the alleged causes of such disproportion, were thereafter invalidated by the District Court as not job-related; and an interim system of job assignment was created by court order, the details of which are spelled out in our 1974 decision. Because this interim plan provided in part that job assignment would precede licensing and that permanent appointment would follow on-the-job evaluation, it became necessary for the Board of Education to formulate new rules concerning date of appointment for excessing purposes. These rules, which were submitted to the District Court for approval, provided in substance that, in determining seniority for excessing purposes, supervisors would be considered appointed as of the date of their assignment.

As Judge Tyler graphically pointed out during one of the many arguments below, this lawsuit has been "like a conflagration that one puts out in one department and then suddenly a new fire breaks out somewhere else." It was not surprising, therefore, that this submission by the Board set new flames burning. Plaintiffs promptly opposed the use of any excessing rules on the ground that minority supervisors recently hired would have the least seniority. This prompted intervention by the Council of Supervisors and Administrators of the City of New York, Local 1, SASCO, AFL-CIO as the representative of all supervisory personnel, including those licensed and appointed prior to the court-ordered interim plan, those licensed and appointed pursuant to such plan and those assigned but not yet appointed. This Union opposed the use of racial quotas and supported the continued use of traditional excessing procedures. Amicus briefs were also filed by the New York City School Boards Association, Inc. whose interest lay in seeing that the powers and prerogatives of the thirty-two school districts within the New York system were not eroded by the court-created excessing plan.

Proposals and counterproposals followed closely upon each other until Judge Tyler handed down an order on November 22, 1974, adopting the racial quota concept. This order was amended on February 7, 1975, and it is the amended order which we are reviewing on this appeal. It provides in substance as follows:

1. All supervisors are to be divided into three groups: group A Blacks, group B Puerto Ricans and group C Others;

2. The percentage of supervisors making up each group is to be computed for each of the thirty-two districts and for the city-wide system;

3. Each district may place supervisors from group A or B on its intra-district excessing list only if the percentage of that group on the list does not exceed the percentage of that group in the district;

4. Each district may add excessed supervisors from group A or B to the city-wide, inter-district excessing list only if the percentage of that group on the list does not exceed the percentage of that group employed city-wide.

Although the order does not specifically so provide, the inevitable consequence of the foregoing provisions is that if racial quotas prevent the excessing of a Black or Puerto Rican, a white person with greater seniority must be excessed in his place.

Before the merits of the appeals taken by the Board of Education and the Council of Supervisors can be considered, several preliminary roadblocks raised by plaintiffs must first be removed. Plaintiffs contend that the appeals are not timely. They say that the order of February 7, 1975, merely clarified the order of November 22, 1974, and that therefore appeals should have been taken from the former, not the latter. We find no merit in this contention. Following the issuance of the November 22 order, the Board of Education requested a modification "concerning excessing." A hearing was held, and some modifications were made. We think that the Board's application, addressed sufficiently to the substance of the November order to require a contested rehearing, effectively transferred the mantle of finality from the November to the February order and that appeals from the latter order were therefore timely. Leishman v. Associated Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714 (1943); Sleek v. J. C. Penney Co., 292 F.2d 256 (3d Cir. 1961).

Plaintiffs also point out that the order appealed from will be in effect only until November 30, 1977, by which time "it is hoped" the situation regarding minority representation will have changed. Plaintiffs urge that we not concern ourselves, as an appellate court, with this short-term interim relief. In our 1974 decision, at page 825, we expressed concern about the length of time this litigation had remained in an unfinished state and the possibility that "the interim tail" would end up wagging the dog. Another year has passed; the lawsuit has not been terminated, and new orders continue to emerge. Those supervisors who may lose their jobs between now and November 30, 1977, will be little comforted by the knowledge that it was merely a temporary order that put them out of work. Where the basic rights of such innocent non-litigants are so substantially involved, we believe we should, as we have twice before, review what has been done.

We thus come to the main question on this appeal, viz.: does a facially neutral excessing plan, which operates on the concept of "last hired-first fired," discriminate against minorities who are disproportionately affected? We agree with the Courts of Appeals for the Third, Fifth and Seventh Circuits that the answer to this question must be "no." See Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309 (7th Cir. 1974), petition for cert. filed, 44 U.S.L.W. 3011 (Apr. 25, 1975); Jersey Central Power and Light Co. v. Local Union, 327, I.B.E.W., 508 F.2d 687 (3d Cir. 1975), petitions for cert. filed, 44 U.S.L.W. 3084 (Aug. 1, 1975), 44 U.S.L.W. 3207 (Sept. 24, 1975); Watkins v. Steel Workers Local No. 2369, 516 F.2d 41 (5th Cir. 1975).

Our brothers in the Third and Seventh Circuits have examined the legislative history of Title VII, ⁴ and they are in accord that this Act was not intended to invalidate bona fide seniority systems. Waters, supra, 502 F.2d at 1318; Jersey Central, supra, 508 F.2d at 710. Our brothers in the Fifth Circuit say that "regardless of what that history may show as to Congressional intent concerning the validity of seniority systems as applied to persons who have themselves suffered from discrimination, there was an express intent to preserve contractual rights of seniority as between whites and persons who had not suffered any effects of discrimination." Watkins, supra, 516 F.2d at 48. All agree, as do we, that the non-remedial distortion of a seniority system through preferential treatment based solely upon race is a form of reverse discrimination specifically proscribed by Congress. Jersey Central, supra, 508 F.2d at 709; Waters, supra, 502 F.2d at 1319; Watkins, supra, 516 F.2d at 46. See also Local 189, United Papermakers v. United States, 416 F.2d 980, 994 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970).

That plaintiffs herein are proceeding under 42 U.S.C. §§ 1981,1983 does not render defendants' seniority system any more susceptible to attack. Congress has clearly placed its stamp of approval upon seniority systems in 42 U.S.C. §...