Daley v. Gaitor
| Decision Date | 27 September 1988 |
| Docket Number | No. 5932,5932 |
| Citation | 547 A.2d 1375,16 Conn.App. 379 |
| Court | Connecticut Court of Appeals |
| Parties | , 129 L.R.R.M. (BNA) 2915, 47 Fair Empl.Prac.Cas. (BNA) 1761 Francis DALEY, et al. v. Woodrow W. GAITOR et al. Francis DALEY, et al. v. CITY OF HARTFORD. |
Ronald E. Cassidento, with whom, on the brief, was Eric Carlson, West Hartford, for appellants (plaintiffs).
Richard M. Cosgrove, Deputy Corp. Counsel, with whom, on the brief, were Richard H. Goldstein, former Corp. Counsel, and H. Maria Cone, Asst. Corp. Counsel, Hartford, for appellees (defendants in the first case, defendant in the second case).
Before BORDEN, DALY and NORCOTT, JJ.
The plaintiffs 1 bring a joint appeal from the trial court's judgments in their actions for injunctive relief and breach of contract. The trial court denied the injunction in the first case and directed the verdict for the defendant city in the second case. 2 On appeal from the second case, the plaintiffs aver that the trial court erred (1) in directing a verdict for the city and rendering judgment thereon in lieu of granting the plaintiffs' motion to strike the city's special defense, and (2) in refusing to render judgment for the plaintiffs. We find error.
This litigation arises out of the 1981 promotional process for the position of lieutenant in the Hartford police department. In 1981, a written promotional announcement was circulated apprising prospective candidates of several openings for the position of police lieutenant. The promotional announcement provided that the position was open to all persons who had attained the rank of police sergeant. The announcement further provided that the applicants were to take a written examination and that at least 50 percent of those who took the written examination would be allowed to move to the second stage, an oral examination.
After the written examination was given in this case, it was determined that only those officers who had attained a score of 76 percent or better would be allowed to take the oral examination. In tabulating the test results, however, the city personnel director found that the results did not conform to the federal Uniform Guidelines on Employee Selection, 29 C.F.R. § 1067 et seq., since there was an adverse impact on the minority applicants. Thereafter, the city personnel director took steps to alleviate the adverse impact of the examination. In conjunction with the city manager, he allowed any sergeant who took the written examination to take the oral examination as well. Thereafter, all persons who took the examination were rated.
As a result, three individuals who had not attained a score of 76 percent on the written examination were ultimately promoted to the rank of lieutenant in lieu of the plaintiffs. The plaintiffs brought suit alleging a breach of contract. After a trial to the jury, the court directed the jury to return a verdict for the defendants.
We note as a threshold matter that the plaintiffs did not move to set aside the verdict against them. Practice Book § 4000 3 requires a party who wishes to appeal from a directed verdict to file a timely motion to set aside the verdict pursuant to Practice Book § 320. 4 See also General Statutes § 52-228b. 5 A party may then appeal from the denial of that motion to set aside the verdict. Dunham v. Dunham, 204 Conn. 303, 311-12, 528 A.2d 1123 (1987).
Although generally "plain error" review is limited to instances involving confidence in the fairness and integrity of the adjudicative process; Smith v. Czescel, 12 Conn.App. 558, 563, 533 A.2d 223 (1987); the doctrine essentially invokes the discretion of the court. Finley v. Aetna Life & Casualty Co., supra, 202 Conn. at 196, 520 A.2d 208. One standard for this appellate discretion is whether the issue is of importance to the development of the law of the state, is vital to the proper resolution of the case, and was sufficiently presented to the trial court initially, albeit not by way of a motion to set aside the verdict, so that appellate consideration of it does not amount to ambuscade of the trial court. Finley v. Aetna Life & Casualty Co., 5 Conn.App. 394, 402-403, 499 A.2d 64 (1985), rev'd on other grounds, 202 Conn. 190, 520 A.2d 208 (1987). It is this latter branch of the plain error doctrine which we invoke here.
The plaintiffs first claim that the trial court erred in directing a verdict for the city and in failing to strike the city's special defense. For the purposes of review, we will treat these claims independently. We first discuss the propriety of the directed verdict.
Meizoso v. Bajoros, 12 Conn.App. 516, 518, 531 A.2d 943 (1987). In this case, we conclude that the trial court committed plain error in directing a verdict for the city.
The plaintiffs' principal claim at trial was for breach of contract. In accordance with this claim, the plaintiffs introduced evidence that they were members of the International Brotherhood of Police Officers (IBPO). They produced further evidence that the IBPO had entered into a contract with the city of Hartford which provided that all promotions were to be in accordance with the personnel rules and regulations of the city of Hartford. Rule VI, § 3, of the personnel rules provides in pertinent part that 6
The city contended, however, in its special defense that regardless of the existence of any contract between it and the plaintiffs its actions were justified because they were done only so that the test results would conform to federal antidiscrimination laws. The city contended that compliance with federal antidiscrimination laws supersedes any contractual rights the plaintiffs may have had.
In addressing this claim, we first note that discrimination continues to be a problem in the American workplace. Goodman v. Lukens Steel Co., 482 U.S. ----, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987); Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). This is true despite the myriad of laws designed to protect against such discrimination. U.S. Const., amend. XIV; Civil Rights Act of 1964 §§ 701-718, 42 U.S.C. §§ 2000e-2000e17; 42 U.S.C. § 1981; Conn. Const., art. 5; General Statutes §§ 46a-60, 46a-61 and 46a-69 through 46a-70. In this case, the city took steps to correct what it perceived to be a discriminatory promotional process.
The city's conclusion that the promotional process used in this case was discriminatory was based on title VII and the federal Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. Under the provisions of the guidelines, evidence that the selection rate for any race, sex or ethnic group eligible for promotion is less than four-fifths of the rate for the group with the highest rate will be generally regarded as evidence of adverse impact. 29 C.F.R. § 1607.4D. Courts have held that the evidence that the selection rate for any group is less than four-fifths of the selection rate of any other group constitutes prima facie evidence of discrimination. Bushey v. New York State Civil Service Commission, 733 F.2d 220, 224-25 (2d Cir.1984), and cases cited therein. In this case, the rate of minorities who scored in the top 50 percent of those taking the written exam was less than four-fifths of the rate of white applicants who attained such a score.
Accordingly, the city voluntarily took steps to alleviate the adverse impact of the written examination by allowing all persons who took the written examination to take the oral examination as well. This action was taken in accordance with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1067.66(2), which provides that any promotional process in which there is an adverse impact on the promotional opportunities of any ethnic group, race or sex is considered discriminatory unless the process has been validated or another method is used to "modify the procedure to eliminate the adverse impact."
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