Richardson v. CIVIL SERV. COM'N OF STATE OF NEW YORK

• Decision Date: 26 December 1973
• Docket Number: No. 72 Civ. 1902.,72 Civ. 1902.
• Citation: 387 F. Supp. 1267
• Parties: Susan RICHARDSON et al., Plaintiffs, v. The CIVIL SERVICE COMMISSION OF the STATE OF NEW YORK et al., Defendants.
• Court: U.S. District Court — Southern District of New York

387 F. Supp. 1267

Susan RICHARDSON et al., Plaintiffs, v. The CIVIL SERVICE COMMISSION OF the STATE OF NEW YORK et al., Defendants.

No. 72 Civ. 1902.

United States District Court, S. D. New York.

December 26, 1973.

COPYRIGHT MATERIAL OMITTED

Steven H. Bazerman, New York City, Jack Greenberg, Jeffry A. Mintz, and Deborah Greenberg, New York City, for plaintiffs; Community Law Offices, of counsel.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Judith A. Gordon, Asst. Atty. Gen., New York City, for defendants.

MEMORANDUM

TENNEY, District Judge.

Plaintiffs, seven Black current employees (Richardson, Jackson, Sims, Fisher, Napier, Birdsong and Harper) and one White former employee (Walcott) of defendant State of New York Narcotics Addiction Control Commission ("NACC"), have instituted this action against defendants NACC, the Civil Service Commission of the State of New York ("CSC"), Ersa Poston (President of defendant CSC), Howard Jones (Chairman of the NACC) and Charles King (Associate Commissioner of Infra-facilities of the NACC), alleging violations of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983; the fifth and fourteenth amendments of the United States Constitution; Article V, § 6 of the New York State Constitution; and § 50(6) of the McKinney's Consol.Laws, c. 7, New York State Civil Service Law. Jurisdiction is alleged under 28 U.S.C. §§ 1331 and 1343(3) and principles of pendent jurisdiction. Defendants have moved, pursuant to Fed.R.Civ.P. 12(b)(1) and (6), to dismiss the complaint or, in the alternative, to dismiss the pendent claims. For the reasons set out infra, defendants' motions are granted in part and denied in part.

FACTS

The complaint alleges the following facts. Defendant NACC operates eighteen rehabilitation centers in the State of New York for the care, custody, treatment and rehabilitation of narcotics addicts certified to its care. Both the Black and the White plaintiffs are, or were, employed at the Manhattan Rehabilitation Center.

All of the Black plaintiffs are currently employed by the NACC as Narcotic Corrections Officers ("NCOs"). An NCO's official duties include control of the movements of residents within the rehabilitation center and supervision of residents' housekeeping activities. In addition, an NCO may participate in, but not lead, individual and group counseling sessions, recreational activity programs, and vocational and educational training programs. The starting salary of an NCO is $8,659.

The White plaintiff was formerly employed as a provisional Narcotic Rehabilitation Counselor ("NRC"). An NRC's duties are to use the techniques of group and individual therapy, as well as vocational and educational training, to assist certified addicts to function without the need for drugs and to counsel them on their adjustment to community life, families, jobs and other personal affairs. The starting salary of an NRC is $11,471.

The source of the instant controversy is the manner in which appointments to the position of permanent NRC are made. To make such an appointment, NACC must, pursuant to CSC regulations, select an individual whose name is among the first three which appear on the certified New York State Civil Service Eligibility List. An applicant's position on the list is determined by the score achieved on the Narcotic Rehabilitation Counselor's Examination, a test created and given by defendant CSC. To qualify to take the examination, CSC regulations require that an applicant have a bachelor's degree in any subject and:

(a) have two years of full-time paid counseling experience in either group or individual counseling, related to personal, social or occupational adjustment; or

(b) have a master's degree in education, guidance, psychology, rehabilitation counseling, social work, sociology or vocational rehabilitation; or

(c) have a satisfactory equivalent combination of training and experience.

None of the Black plaintiffs possess a bachelor's degree; hence, none are eligible to take the NRC examination. Therefore, none of them could be considered for a permanent appointment as an NRC. All of them claim, however, that, although they were appointed to the position of NCO,¹ they have, for varying periods of time (from 18 months to three years), acted as de facto NRCs, performing in all of the capacities expected of one in that position. These plaintiffs further allege that only 2% of all permanently appointed NRCs are Black or Puerto Rican; that only one of the 43 persons currently eligible for permanent appointment as an NRC is Black; that a much higher percentage of Blacks and Puerto Ricans fail to pass the NRC examination; and that neither the educational nor the testing requirements measure or predict a person's ability to perform the functions of an NRC (there have been no empirical studies undertaken to validate these requirements), as exemplified by the fact that the Black plaintiffs have been successfully functioning as de facto NRCs without meeting those requirements.

The White plaintiff asserts that, although she was satisfactorily performing the duties of an NRC, she was discharged upon her failure to achieve a qualifying score on the NRC examination.

All eight plaintiffs therefore claim that the procedure by which permanent appointments to the position of NRC are made (1) deprive them of their right to substantive due process of law, as guaranteed by the fifth and fourteenth amendments of the United States Constitution and (2) violate Article V, § 6 of the New York State Constitution² and New York State Civil Service Law § 50(6).³ The Black plaintiffs also claim that the educational and testing requirements violate 42 U.S.C. §§ 1981 and 1983 because such requirements are in fact racially discriminatory without being job-related and thus, deprive them of equal protection of the laws.

Plaintiffs request that this Court (1) enjoin defendants from (a) employing the educational and testing requirements in selecting persons for appointment as permanent NRCs until their job relatedness has been demonstrated and (b) using the current Eligibility List to fill NRC vacancies and (2) issue a declaratory judgment to the effect that the current appointment procedures violate the fifth and fourteenth amendments, Article V, § 6 of the New York State Constitution, 42 U.S.C. §§ 1981 and 1983 and the Civil Service Law of the State of New York.

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FED.R.CIV. P. 12(b)(1)

The issue of subject matter jurisdiction goes to the competency of the federal courts to hear a particular case and grant the kind of relief requested. See Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). It is plaintiffs' position that subject matter jurisdiction is conferred by 28 U.S.C. §§ 1331⁴ and 1343(3). For reasons of convenience, the claims of the Black plaintiffs will be considered first.

Black Plaintiffs

Subject matter jurisdiction under § 1343(3) hinges upon whether the Black plaintiffs have stated a claim for deprivation, under color of state law, of constitutional rights or of statutorily created federal rights. Plaintiffs have alleged in their complaint that the educational and examination requirements, enacted and enforced under color of state law, discriminate against them as Blacks and are not rationally related to the position of NRC. It would appear from the face of their complaint, therefore, that the Court has subject matter jurisdiction over these claims since § 1343(3) permits one to sue for deprivation of any constitutional right.

It is defendants' position, however, that subject matter jurisdiction is absent because: (1) the educational requirement does not have a discriminatory effect upon Blacks; (2) the substantive due process claim is merely a restatement of the equal protection claim; (3) § 1343(3) is applicable only in an "equal rights" context and therefore precludes plaintiffs from asserting due proccess claims under it; (4) the Black plaintiffs do not have standing to challenge the testing requirement; (5) the examination requirement claims are not ripe for adjudication; and (6) the NACC and CSC are not "persons" within the meaning of § 1343(3) and are, in any event, immune from prosecution under the eleventh amendment.

The first two arguments go to the merits of the Black plaintiffs' claims. Therefore, they are more properly considered in that portion of this opinion which deals with defendants' motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6), infra. As was stated in Bell v. Hood, supra, 327 U.S. at 682, 66 S.Ct. at 776:

"Jurisdiction . . . is not defeated . . . by the possibility that the averments in the complaint might fail to state a cause of action on which petitioners could actually recover."

Only if it could be argued that the equal protection and substantive due process claims are "immaterial and made solely for the purpose of obtaining jurisdiction" or are "wholly insubstantial and frivolous" would this Court be compelled to dismiss the complaint. Bell v. Hood, supra, 327 U.S. at 682-683, 66 S.Ct. 773, 90 L.Ed. 939. That is not the case. Plaintiffs' constitutional claims are clearly an integral part of their complaint and are not, as revealed by their affidavits, wholly insubstantial or frivolous.

The third argument that defendants make is not meritorious. A fair reading of § 1343(3) shows that the "equal rights" limitation which appears therein clearly refers to "Acts of Congress" and not to "right . . . secured by the Constitution of the United States".

As indicated above, defendants' fourth and fifth arguments challenge the jurisdiction of this Court to hear the Black plaintiffs' challenges of the testing requirement on the grounds that, because these plaintiffs have never met the educational requirement, they have no standing and their claims are not ripe for adjudication.

Both ripeness and standing are aspects of the concept of...