Marino v. Ortiz, 204
| Decision Date | 08 December 1986 |
| Docket Number | D,No. 204,204 |
| Citation | 806 F.2d 1144 |
| Parties | 42 Fair Empl.Prac.Cas. 912, 42 Empl. Prac. Dec. P 36,717, 55 USLW 2370 Evelyn MARINO, et al., Plaintiffs-Appellants, v. Juan U. ORTIZ, et al., Defendants-Appellees. ocket 86-7347. |
| Court | U.S. Court of Appeals — Second Circuit |
Ronald Podolsky, New York City, for plaintiffs-appellants.
Elizabeth Dvorkin, New York City, Asst. Corp. Counsel (Frederick A.O. Schwarz, Jr., Corp. Counsel, Fay Leoussis, Asst. Corp. Counsel, of counsel), for defendants-appellees.
Before FEINBERG, Chief Judge, WINTER and MAHONEY, Circuit Judges.
This case requires an inquiry into what constitutes a collateral attack on a consent decree. Evelyn Marino et al., appeal from a judgment of the United States District Court for the Southern District of New York, Robert L. Carter, J., dismissing their complaint as a collateral attack on the settlement in Hispanic Society of the New York City Police Dep't v. New York City Police Dep't, 40 Empl.Prac.Dec. (CCH) p 36,385 (S.D.N.Y.1986). This appeal was argued at the same time as the appeal from the order in Hispanic Society, which has also been decided this day. Hispanic Society of the New York City Police Dep't v. New York City Police Dep't, 806 F.2d 1147, (2d Cir.1986). Appellants contend that their suit cannot be a collateral attack because their complaint was filed before the final order in Hispanic Society was entered. Because we think the district court properly viewed this action as a collateral attack on a consent decree, we affirm.
In the latter half of 1984, the Hispanic Society of the New York City Police Department Inc. and the Guardians Association of the Police Department of the City of New York, Inc., two groups that represent minority members of the New York City Police Department, brought Title VII suits against the Department and other City defendants, alleging that the sergeant's examination given earlier that year and the promotion Eligible List based on the examination were racially discriminatory. The lawsuits were later consolidated into a single action and will be so regarded in this opinion. Although 12.3% of those taking the examination were black and 8.7% of them were Hispanic, blacks and Hispanics accounted for only 2.31% and 4.23% respectively of those whose scores qualified them for the Eligible List.
Three distinct groups intervened in the lawsuit: the Sergeants Benevolent Association on behalf of those officers who had been provisionally appointed from the Eligible List, the Sergeants Eligibles Association on behalf of officers on the Eligible List who had not yet been promoted and various white ethnic societies and individuals for other officers not promoted. Following extensive discovery, city officials realized it would be difficult to prove that the sergeant's examination was job related and therefore, difficult to defend the examination's clear discriminatory impact. Accordingly, the two sides began serious settlement negotiations in hopes of reaching an accommodation that would alleviate the discriminatory impact of the examination with a minimum of disruption to the Police Department.
Eventually, all the parties to the lawsuit except the white ethnic societies reached a settlement. Under the agreement, all the officers on the original Eligible List were to be promoted. In addition, a sufficient number of black and Hispanic officers were to be promoted so that each ethnic group's representation in the new class of sergeants would approximate its representation in the entire group of those who took the examination. The accommodation was spurred by the growing need for sergeants on the police force. The parties believed that this arrangement would eliminate the examination's discriminatory impact while avoiding the morale and management problems that would have resulted had the entire examination been scrapped. The additional black and Hispanic officers were to be added to the Eligible List in rank order of their scores on the written portion of the examination, since it was conceded that the test did have some ranking value.
When the general terms of the settlement became clear, all the parties except the white ethnic groups stipulated that the Police Department could promote the officers left on the Eligible List and additional black and Hispanic officers in accordance with the proposed settlement. The district court approved this interim settlement by order dated November 27, 1985. In April 1986, the district court held a hearing on whether the proposed formal stipulation of settlement was reasonable, fair and adequate ("the objector hearing"), and on June 16, 1986, issued an opinion approving the settlement ("the consent decree").
Appellants filed the complaint in this action on December 30, 1985, after the interim settlement order in Hispanic Society, but before the consent decree was entered. Purporting to represent the class of white police officers who were not placed on the Eligible List but who scored at least as high on the examination as the lowest scoring minority officer promoted under the interim order, appellants alleged that the proposed settlement deprived them of the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution. Although appellants had no expectation of promotion since they had failed the examination, they demanded that they too be made sergeants. On April 29, 1986, Judge Carter, who was also presiding over the Hispanic Society litigation, dismissed the complaint.
It is well settled that collateral attacks on consent decrees entered in Title VII actions are not permitted, e.g. Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y.), aff'd mem., 573 F.2d 1294 (2d Cir.1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978); Dennison v. City of Los Angeles...
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