Mando v. Beame

Decision Date24 June 1975
Docket NumberNo. 74 Civ. 2576.,74 Civ. 2576.
Citation398 F. Supp. 569
PartiesDaniel J. MANDO et al., Plaintiffs, v. Abraham BEAME et al., Defendants.
CourtU.S. District Court — Southern District of New York

National Employment Law Project, New York City, for plaintiffs.

W. Bernard Richland, Corp. Counsel of New York City, for defendants.

MEMORANDUM AND ORDER

BRIEANT, District Judge.

Plaintiffs are employed by the City of New York and paid with federal funds granted pursuant to the Emergency Employment Act of 1971, 42 U.S.C. § 4871 et seq. (the "Act" or the "EEA"). Their amended complaint alleges that the City, in its administration of the EEA program, discriminates against its EEA employees, and in favor of its "regular", or locally funded employees, in violation of rights secured to them by the 14th Amendment of the Constitution, and the Act. Plaintiffs seek injunctive and declaratory relief pursuant to 28 U.S.C. § 2201 and § 2202 for themselves and all others similarly situated.1

A preliminary injunction was sought to prevent termination of employment of all New York City EEA employees on June 30, 1974 when federal funding of the program was scheduled to end. Additional federal funds were obtained under the Act, and on July 29, 1974, continued funding was approved pursuant to The Comprehensive Employment and Training Act of 1973, 29 U.S.C. § 801 et seq., which superseded the Emergency Employment Act. The named plaintiffs continue to be employed by the City, and paid with federal funds. Preliminary injunctive relief therefore became unnecessary.

A motion to intervene made by the American Federation of State, County and Municipal Employees, AFL-CIO, was denied on October 4, 1974, but the union was permitted limited participation in this litigation as amicus curiae.

Defendants now move pursuant to Rule 12(c), F.R.Civ.P., for an order dismissing the amended complaint for want of subject matter jurisdiction.

The stated legislative purpose of the Emergency Employment Act was 42 U. S.C. § 4871:

"to provide unemployed and underemployed persons with transitional employment in jobs providing needed public services during times of high unemployment and, wherever feasible, related training and manpower services to enable such persons to move into employment or training not supported under this chapter."

In periods of high unemployment, as determined by the administrator of the Act, the Secretary of Labor, he "shall enter into agreements with eligible applicants" 42 U.S.C. § 4875(b) such as municipalities to provide funds for public service jobs and job training for unemployed or underemployed persons. Wages and benefits for EEA employees are to be equal to those of regular city employees doing the same work, and EEA employees are to enjoy working conditions and opportunities for advancement equal to those of regular city employees. Programs must be designed to contribute to the occupational development and "upward mobility" of the participants, to the end that the participants, if possible, can achieve permanent skilled employment with the city, or in private industry. 42 U.S.C. § 4876.

As a condition precedent to providing financial assistance to a municipality, the Secretary must determine that 42 U.S.C. § 4881(a):

"(2) persons employed in public service jobs under this chapter shall be paid wages which shall not be lower than whichever is the highest of (A) . . .; (B) . . .; or (C) the prevailing rates of pay for persons employed in similar public occupations by the same employer; . . ..
(4) all persons employed in public service jobs under this chapter will be assured of workmen's compensation, health insurance, unemployment insurance, and other benefits at the same levels and to the same extent as other employees of the employer and to working conditions and promotional opportunities neither more nor less favorable than such other employees enjoy; . . .."

The Secretary has enacted comprehensive regulations, as authorized by § 4881(a) of Title 42. See 29 C.F.R. § 55.0, et seq. He is empowered to withhold funds if he finds any violation of any provision of the Act. Periodic reports are required of recipient employers.

Plaintiffs contend that New York City, despite its assurances to the Secretary, has not allowed EEA employees equal pay and benefits, and actively has prevented them from preparing for and taking civil service examinations which would enable them to move into permanent, unsubsidized municipal employment. These benefits are available to regular City employees, and therefore, plaintiffs argue, by treating them differently and arbitrarily, the City is violating the Act and depriving them of equal protection under the 14th Amendment. Plaintiffs bring their constitutional claim under the Civil Rights Act, 42 U.S.C. § 1983, with jurisdiction based on 28 U.S.C. § 1343(3). They also allege that jurisdiction over their statutory claims is conferred by 28 U.S.C. §§ 1331(a), 1337 and 1343(3) and (4).2

Defendants correctly point out that a claim of violation of the equal protection clause assumes discrimination against a class, rather than individuals. They claim that the plaintiffs' allegations

"are typical problems which inevitably arise in the government employer/employee context. Undoubtedly some other city employees, who are not EEA participants have similar problems. No policy has ever been established by the City in its administration of EEA so as to deny EEA employees training classes, holiday and overtime pay, raises, notice before shift transfers, eligibility for other examinations or accrued annual leave.
* * * * * *
The alleged deprivation raised by the named plaintiffs could just as easily have happened to regular non-EEA employees.
It is significant that the information about differential treatment was either hearsay or from sic, probably to be read as `received from' low level personnel, foremen, course instructors, payroll clerks, etc., and did not reflect the City-wide policy concerning the effectuation of the EEA program." (Defendants' Brief, pp. 14-16)

Whatever these contentions may reveal concerning conditions of public employment in New York City, they do not settle the jurisdictional question. They present a factual issue, and we may accept the well pleaded allegations of the amended complaint for purposes of the instant motion.

A city, as an employer, is subject to the 14th Amendment. Its employment regulations must be related reasonably to a valid government interest in compliance with the due process clause, and classifications of employees which serve no rational purpose or which divide employees into classes and arbitrarily treat them differently, violate the equal protection clause. Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1974). Nor may public employees be dismissed for exercising constitutional rights, such as the Fifth Amendment privilege against self-incrimination Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956), or First Amendment rights to free speech and association Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). In Thompson, supra, the Court held 489 F.2d at 447:

"Just as a public employee does not give up his First Amendment rights when he begins receiving a pay check from the government, neither does he give up his right to due process of law. The Fourteenth Amendment stands for the proposition that the government must act, when it acts, in a manner which is neither arbitrary nor unreasonable. This stricture is in addition to those which restrict the government from acting in a manner which impinges on freedom to speak or association, or to be free from self-incrimination. It is one which most certainly applies not only to the government as policeman but also to the government as employer. Public employees are every bit as protected by the Fourteenth Amendment's safeguards as is the rest of the populace citations omitted."

In Rios v. Dillman, 499 F.2d 329 (5th Cir. 1974), which upheld, against an attack on equal protection grounds, a preference given to City of El Paso employees who were veterans, the Court explained that its decision in Thompson, supra, did not compel a similar result in Rios. The Court noted p. 333 n. 7 of 499 F.2d:

"A statute that bars all employment has a substantially different effect from one that simply grants an advantage to some otherwise qualified for employment . . .." Emphasis in original

Whether the plaintiffs' equal protection claim has merit cannot be decided now; we hold only that "within accepted doctrine plaintiffs' complaint alleges a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy" Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974); and the equal protection claim under 42 U.S.C. § 1983 is not "made solely for the purpose of obtaining jurisdiction . . . or . . . wholly insubstantial and frivolous" Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). We have subject matter jurisdiction of that claim pursuant to 28 U.S.C. § 1343(3).

This being so, this Court may, as a matter of pendent jurisdiction, hear the statutory claim. Hagans v. Lavine, supra, 415 U.S. p. 536, 94 S.Ct. 1372; Rosado v. Wyman, 397 U.S. 397, 402-405, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).

Defendants' contend that no such statutory claim exists because the Emergency Employment Act is not a statute which may be enforced by private litigants. The Act contains no express private remedy for an injured employee. We find only one reported case holding directly that a private right of action may be implied on behalf of individuals aggrieved by the method of administration of a grant received by a municipality pursuant to the Act.3 In Holliman v. Price, 7 E.P.D. 6510 (E.D.Mich., Jan. 3, 1974), Black and Spanish-surnamed unemployed and underemployed residents of Flint, Michigan sought an injunction barring city officials...

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4 cases
  • Image Carrier Corp. v. Beame
    • United States
    • U.S. District Court — Southern District of New York
    • 7 avril 1977
    ...(1947); Thompson v. Gallagher, supra, 489 F.2d at 446-47; Burt v. City of New York, 156 F.2d 791, 792 (2d Cir. 1946); Mando v. Beame, 398 F.Supp. 569, 572 (S.D.N.Y.1975). 23 See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); 87 Harv.L.Rev. 1842, 1844-45 (1974). 24 ......
  • McMinn v. City of Oklahoma City
    • United States
    • Supreme Court of Oklahoma
    • 23 décembre 1997
    ...of public policy as well as personal right", relying on Kirk v. Board of County Comm'rs, 1979 OK 80, 595 P.2d 1334, and Mando v. Beame, 398 F.Supp. 569 (S.D.N.Y.1975). It held that this disparate treatment could be the basis of a cause of action, and remanded to the trial court for further ......
  • Alitalia v. Arrow Trucking Co.
    • United States
    • U.S. District Court — District of Arizona
    • 29 septembre 1997
  • Ragner v. Zielke
    • United States
    • United States State Supreme Court of Wisconsin
    • 9 janvier 1979
    ...92-48 Conf.Rept.No. 92-310, 92d Cong., 1st Sess. (1971), 1 U.S.Code, Cong. & Admin.News, pp. 1180, 1202. See Mando v. Beame, 398 F.Supp. 569, 575 (S.D.N.Y.1975).2 "Sec. 7. (a) Financial assistance under this Act may be provided by the Secretary for any fiscal year only pursuant to an applic......

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