Guardians Ass'n of New York City Police Dept., Inc. v. Civil Service Com'n of City of New York, No. 1340

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before MESKILL; MESKILL; Carter; In Guardians II; Wallace; KELLEHER; COFFRIN; Carter
• Citation: 633 F.2d 232
• Parties: 23 Fair Empl.Prac.Cas. 677, 23 Empl. Prac. Dec. P 31,153, 6 Fed. R. Evid. Serv. 724 The GUARDIANS ASSOCIATION OF the NEW YORK CITY POLICE DEPARTMENT, INC., the Hispanic Society of the New York City Police Department, Inc., Oswaldo Perez and Felix E. Santos; Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK, Department of Personnel of the City of New York, The New York City Police Department, Alphonse D'Ambrose, Individually and in his capacity as Chairman of the Civil Service Commission of the City of New York and Personnel Director of the City of New York, James Smith and Josephine Gambino, Individually and in their capacity as members of the Civil Service Commission of the City of New York, and Michael J. Codd, Individually and in his capacity as Commissioner of the New York Police Department, Defendants- Appellants. ocket 79-7377.
• Decision Date: 25 July 1980
• Docket Number: D,No. 1340

Page 232

633 F.2d 232 23 Fair Empl.Prac.Cas. 677,
23 Empl. Prac. Dec. P 31,153,
6 Fed. R. Evid. Serv. 724 The GUARDIANS ASSOCIATION OF the NEW YORK CITY POLICE
DEPARTMENT, INC., the Hispanic Society of the New York City
Police Department, Inc., Oswaldo Perez and Felix E. Santos;
Individually and on behalf of all others similarly situated,
Plaintiffs-Appellees,
v.
CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK, Department
of Personnel of the City of New York, The New York City
Police Department, Alphonse D'Ambrose, Individually and in
his capacity as Chairman of the Civil Service Commission of
the City of New York and Personnel Director of the City of
New York, James Smith and Josephine Gambino, Individually
and in their capacity as members of the Civil Service
Commission of the City of New York, and Michael J. Codd,
Individually and in his capacity as Commissioner of the New
York Police Department, Defendants- Appellants. No. 1340, Docket 79-7377. United States Court of Appeals,
Second Circuit. Argued Aug. 15, 1979.
Decided July 25, 1980.

Page 234

Laurence A. Silverman, New York City (Christopher Crowley, John J. Brandow, Diane Krejsa, Nancy Ludmerer, D. Stephen Mathias, Margarita Rosa, M. D. Taracido, Kenneth Kimerling, Puerto Rican Legal Defense and Education Fund, Inc., New York City, of counsel), for plaintiffs-appellees.

L. Kevin Sheridan, Asst. Corp. Counsel, New York City (Allen G. Schwartz, Corp. Counsel, Leonard Koerner, Judith A. Levitt, Asst. Corp. Counsels, New York City, of counsel), for defendants-appellants.

Issie L. Jenkins, Acting Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Lutz Alexander Prager, Paul E. Mirengoff, Equal Employment Opportunity Commission, Washington, D. C., as amicus curiae.

Page 235

Before MESKILL, Circuit Judge, and KELLEHER ^* and COFFRIN ^**, District Judges.

MESKILL, Circuit Judge:

This appeal raises a number of important questions in the area of employment discrimination law to which there are as yet no definitive answers. In order to determine the rights of the parties to this action we must explore such concepts as disproportionate impact and job-relatedness and must resolve such issues as when a particular discriminatory hiring practice ceases for purposes of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ; whether there exists an implied private cause of action for compensatory relief under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and whether 42 U.S.C. § 1981 prohibits conduct having a discriminatory impact absent proof of discriminatory purpose.

Unfortunately, the authorities do not speak with one voice. The only thing that has been clear, as we have considered this case, is that whichever way these issues are finally resolved, the impact on the future direction of employment discrimination litigation will be substantial. We are aware that because of the importance and complexity of these questions, today's decision will not put them to rest. Therefore, in order to facilitate the continued consideration of these issues in other forums, we have attempted to explain the factual setting and the reasoning underlying our determinations in some detail.

I.

BACKGROUND

In 1972 a lawsuit was brought by black and Hispanic police officers challenging seven written examinations administered during the years 1968-1970 and used in making appointments to the New York City Police Department ("NYPD" or "department") until 1974. The complaint alleged that these entry-level examinations had a racially disproportionate impact and were not job-related and, therefore, that the use by the department of lists ranking eligibility for appointment on the basis of the results of these examinations was unlawful under various federal and state laws. In Guardians Association v. Civil Service Commission, 490 F.2d 400 (2d Cir. 1973) ("Guardians I"), this Court upheld the district court's denial of a preliminary injunction against the continued use of these eligibility lists, on the ground that the lists had been exhausted. Neither party took any further steps in regard to Guardians I until June of 1975 when, in response to a fiscal crisis, New York City laid off over 2,500 police officers. When plaintiffs' attempt to revive the case proved unsuccessful, they commenced the present action in the United States District Court for the Southern District of New York before Robert L. Carter, Judge, in April of 1976. ¹

In the new action the June layoffs, which were carried out pursuant to the department's "last-hired, first-fired" policy, were alleged to be violative of the Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983, Title VII and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and

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2000d et seq., as well as various other federal and state laws. Central to the attack on the system of layoff by seniority was the contention that the department's entry level examinations were discriminatory, and that but for this discrimination plaintiffs would have been hired earlier and thus would have accrued sufficient seniority to withstand being fired. ² In Guardians Association v. Civil Service Commission, 431 F.Supp. 526 (S.D.N.Y.1977) ("Guardians II"), Judge Carter certified the proposed class, which consisted of "all black and Hispanic New York City policemen currently on layoff who would not have been furloughed but for defendants' allegedly discriminatory employment practices," and granted a preliminary injunction restraining the department from firing or recalling any officers until the seniority lists were reordered "to accord plaintiffs the seniority they would have had but for defendants' discriminatory practices." Id. at 531, 530. Judge Carter held that although plaintiffs had failed to make out a case under the federal Constitution, § 1981 or § 1983, they had demonstrated entitlement to relief under Title VII. ³ He found: (1) that under Title VII plaintiffs had established a prima facie case of discrimination in hiring ⁴ by demonstrating that the challenged entry examinations had a disproportionate impact, that is, that as a group black and Hispanic applicants achieved lower scores than white applicants, and (2) that defendants had failed to rebut plaintiffs' case by demonstrating the job-relatedness of these examinations. Further, rejecting defendants' argument that no post-Act discriminatory conduct had been alleged, the district court held that the 1975 layoff of police officers pursuant to a concededly neutral last-hired, first-fired system perpetuated the effects of the department's pre-1972 discriminatory practices and thus fell within the scope of Title VII. ⁵

On June 21, 1977, this Court vacated the preliminary injunction and remanded the case for reconsideration in light of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which had been handed down after Judge Carter's decision in Guardians II but prior to argument of the appeal. Guardians II, on appeal, 562 F.2d 38 (2d Cir. 1977). In Teamsters the Supreme Court ruled that a bona fide seniority

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system which merely perpetuated the effects of pre-Title VII discrimination beyond the effective date of the Act was immunized from attack by § 703(h) of the statute. ⁶ Recognizing that Teamsters effectively overruled his earlier determination, Judge Carter reassessed plaintiffs' case in order to determine what claims, if any, survived:

Under Teamsters, a meritorious Title VII claim against a municipality requires an act of discrimination after March 24, 1972, rather than discrimination before that date whose effects are felt thereafter through a facially neutral seniority system. . . . If plaintiffs can now show that the results of (the discriminatory) entrance tests contributed to discriminatory acts committed after March 24, 1972, the Teamsters requirement will have been met.

Guardians Association v. Civil Service Commission, 466 F.Supp. 1273, 1276-77 (S.D.N.Y.1979) ("Guardians III").

The district judge reasoned that "(s)tripped of the argument concerning the NYPD's seniority system, plaintiffs' allegations are reduced to claims of discriminatory refusals to hire." Id. at 1277. Noting that "(d) iscriminatory refusal to hire is a well established basis for awarding a discriminatee seniority retroactive to the date upon which he would have been hired but for the discrimination," finding that the last such refusal to hire ceased on October 7, 1974, two years after Title VII was made applicable to municipalities, and finding further that a timely charge had been filed with the Equal Employment Opportunity Commission ("EEOC"), ⁷ Judge Carter concluded that plaintiffs were entitled to relief under Title VII. Id. at 1277-78.

Judge Carter declined to limit relief to those plaintiffs who had been refused employment at some point within the 300 days preceding the filing of the EEOC charge. Relying on Acha v. Beame, 570 F.2d 57 (2d Cir. 1978), the district court held that the use of the eligibility lists to determine the order in which applicants were hired amounted to a continuing policy of discriminatory hiring and thus a continuing violation of Title VII.

The refusals to appoint minorities were not discrete acts; they were all made on the same basis, viz., scores on the defective tests. After the tests were administered and the results certified, the NYPD embarked on a discriminatory hiring program which terminated only when the last person was hired off the lists. Since

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E.E.O.C. charges were filed within 300 days of the last illegal appointment, all plaintiffs are deemed to have made timely challenge to the defendants' discriminatory actions.

Guardians III, 466 F.Supp. at 1280. Ruling that the rehiring of members of the original class had not mooted the case, Judge Carter revised the class definition to include all black and Hispanic policemen ...