Feinerman v. Jones
| Decision Date | 10 January 1973 |
| Docket Number | Civ. No. 72-94. |
| Citation | 356 F. Supp. 252 |
| Parties | Esther L. FEINERMAN, Individually, Plaintiff, v. C. Herschel JONES et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Rajeshwar Kumar, Camp Hill, Pa., for plaintiff.
Lawrence T. Hoyle, Jr., J. Justin Blewitt, Jr., Deputy Attys. Gen., Harrisburg, Pa., for defendants.
Before MAX ROSENN, Circuit Judge, and NEALON and MUIR, District Judges.
In this civil rights action plaintiff, Esther L. Feinerman, attacks the constitutionality of certain sections of the Pennsylvania Veterans' Preference Act of 1945, Pa.Stat.Ann. tit. 51 § 492.2 et seq. Plaintiff contends that the provision of the Act granting a ten-point bonus to the score of any veteran receiving a passing grade on the state civil service examination discriminates against non-veterans generally and women, particularly, in violation of the due process and equal protection clauses of the 14th Amendment to the United States Constitution.
The jurisdiction of the Court is invoked under 28 U.S.C. sections 1343, 2284 and 42 U.S.C. § 1983. Since plaintiff seeks to restrain the enforcement of a State statute, a three-judge District Court was assigned to hear the action in conformity with the provisions of 28 U.S.C. sections 2281 and 2284. See Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941). The case came on for hearing on May 26, 1972, from which the following facts appear.1
The plaintiff has been employed as an Information Writer II, a position in the classified service, on provisional status in Pennsylvania's Department of Education since November 16, 1970. On September 18, 1971, she took and passed the Civil Service Examination conducted by the State Civil Service Commission, receiving a grade of 91.57. Only one other applicant taking the test received a higher raw score. However, because of the application of the ten-point bonus granted by the Veterans' Preference Act, five other applicants, all veterans, had higher final ratings and were placed ahead of plaintiff on the employment list. Pursuant to Section 601.3.1 of the Rules of the State Civil Service Commission, the names of the three eligibles having the highest final rating were certified by the Director of the Commission to the appointing power to fill the position of Information Writer II. Since plaintiff's name was not among the three so certified, she was notified on February 2, 1972, that she would have to leave her employment.
According to § 2 of the Act, the bonus for veterans is given in recognition of "the discipline and experience represented by his military training and for the loyalty and public spirit demonstrated by his service for the preservation of his country." Pa.Stat.Ann. tit. 51 § 492.2. Plaintiff asserts, first, that the right to public employment is a fundamental "right" or fundamental "interest" which, when affected by veterans' preference must be justified by a compelling state interest. Secondly, she argues in the alternative that even if public employment is not deemed to be a fundamental interest, the preference for veterans constitutes discrimination in public employment on non-merit factors bearing no rational relationship to job qualification in violation of the equal protection clause of the 14th Amendment. Moreover, plaintiff further complains that because of the acute disproportion between men and women in the Armed Forces, preference for the veteran results principally for the benefit of men and, therefore, indirectly discriminates against women on the basis of sex. Finally, § 7 which provides for preference in civil service employment for wives and widows of veterans without making a similar provision for husbands and widowers, is attacked as creating a classification which discriminates against men. Inasmuch as the issues raised by plaintiff require different forms of analysis, her claims will be considered separately.
An essential element of any analysis involving the equal protection clause requires a determination of the appropriate standard to be used by which to gauge the constitutionality of a given statute. The traditional equal protection standard looks to the reasonableness of the classification in light of its possible intended purposes. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The classification must bear some rational relationship to a legitimate end and will be set aside as violative of the Equal Protection clause only if based on reasons totally unrelated to that goal. McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). Under this test, the party challenging the constitutionality of a statute has the burden of proving that the statute denies him equal protection and it will not be set aside if it is reasonably related to some permissible legislative or administrative purpose. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 84 L.Ed. 590 (1940); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911).
However, in recent years a stricter standard of review has emerged in cases where a classification is either based upon "suspect" criteria or involves a "fundamental" right or "fundamental" interest. Such a classification will be held to be invalid unless it is shown to be necessary to promote a "compelling" state interest. Shapiro v. Thompson, supra. The compelling state interest test requires:
"(a) . . . that the challenged classification be strictly relevant to whatever purpose is claimed by the state to justify its use, and also that it be the fairest and least restrictive alternative evidently available for the pursuit of that purpose ("necessity"); and (b) . . . that the infringement of fundamental interests resulting from the classifications use be outweighed by the claimed state purpose ("compellingness")."
Michelman, The Supreme Court 1968 Term—Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv.L.Rev. 7, 20 n 34 (1969); see also Developments in the Law— Equal Protection, 82 Harv.L.Rev. 1065, 1124, 1125 (1969). Plaintiff would have the court apply the stricter equal protection standard here, contending that the right to be fairly considered for public employment is a fundamental interest and any classification affecting that right must be justified by a compelling state interest.
Before proceeding further, it would be well to put plaintiff's position in its proper context. Plaintiff is only claiming that she has a right to be fairly considered for public employment; she is not claiming that without veterans' preference, she would be entitled to a position. According to plaintiff's complaint, under Sec. 601 of the Rules of the Civil Service Commission, the Director of the Commission certifies to the appointing power the names of three eligibles who appear highest on the eligible list. The appointing power then reviews the relative merits of the candidates and selects a person for appointment from the list of three eligibles, not necessarily the eligible with the highest score. It is true that under Section 4 of the Act, if one of the three names is a veteran, he must be given an absolute preference and that preference may be given to a veteran who has passed the exam even though his name does not appear on the certified list. Pa.Stat.Ann. Tit. 51 § 492.4. However, if all three eligibles are veterans, the appointing power the-oretically could select the applicant with the lowest score. Hence, the appointing power has discretion to make its own appointment, taking into consideration other factors besides the applicant's raw score on the test. In addition, it would be possible for the appointing power to refuse to make any appointment from the eligible list if, for example, in the opinion of the appointing power, the character of the applicant was less than desirable. See Pa.Stat.Ann. Tit. 71 § 741.501; Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 578, 3 A.2d 701 (1938). Consequently since no one, including veterans, is "entitled" to public employment as the result of scoring highest in the test, plaintiff has only been denied the opportunity to be considered equally with veterans.
While it was once true that the state possessed all the rights of a private employer and, therefore, encountered no restrictions under the 14th Amendment in the area of public employment, see Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206 (1915), it is no longer the case. In recent years, this right-privilege distinction which served as a limitation on the substantive and procedural due process due an employee in the public sector has been seriously eroded, if not rejected. See e. g. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). See generally, Van Alstyne, The Demise of the Right-Privilege Distinction in...
To continue reading
Request your trial