Smith v. City of East Cleveland

• Decision Date: 06 September 1973
• Docket Number: No. C 73-299.,C 73-299.
• Citation: 363 F. Supp. 1131
• Parties: Elizabeth A. SMITH et al., Plaintiffs, v. CITY OF EAST CLEVELAND et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

363 F. Supp. 1131

Elizabeth A. SMITH et al., Plaintiffs, v. CITY OF EAST CLEVELAND et al., Defendants.

No. C 73-299.

United States District Court, N. D. Ohio, E. D.

September 6, 1973.

COPYRIGHT MATERIAL OMITTED

Rita Page Reuss, Jane M. Picker, Cleveland, for defendants.

Henry B. Fischer, Director of Law, Paul Mancino, City of East Cleveland, Cleveland, for plaintiffs.

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

Plaintiffs claim that practices and restrictions of defendant municipal officials in hiring police officers in East Cleveland, Ohio, deny blacks and women their rights to equal protection under the law in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment to the Constitution.

Plaintiff represents both a class of all women who have been denied the opportunity to apply for employment as an East Cleveland police officer because they are under 5 feet 8 inches or 150 pounds and a class of all black applicants who took the East Cleveland examination for police officer and were denied employment because their scores were too low. In particular, plaintiffs claimed at trial the following violations of the Equal Protection Clause of the Fourteenth Amendment:

1. Defendants' enforcement of an ordinance requiring applicants for police officer to be a minimum of 5 feet 8 inches in height and a regulation requiring applicants to weigh a minimum of 150 pounds unlawfully discriminates against female applicants.

2. The written Army General Classification Test which is administered by defendants as a part of the hiring process for police officer unlawfully discriminates against black and female applicants.

3. The preference given to applicants who are veterans is applied by defendants prior to determining whether a candidate is qualified to be a police officer in violation of Ohio Rev.Code § 143.16. This method of applying the preference results in unlawful discrimination against female applicants.

For each of these claims plaintiffs seek declaratory and injunctive relief, costs, and attorney fees.

I. BACKGROUND OF THIS DISPUTE

The Police Department in the City of East Cleveland, a suburb of Cleveland, has an authorized strength of 71 officers, of whom 51 are patrolmen, 11 are detectives, and the remainder are administrative personnel. The City population of 39,600 is presently about 60 per cent black and 55 per cent female. Nine persons or about 12 per cent of the officers are now black. There are no female police officers.

Historically, the composition of the Police Department and population has remained fairly constant with respect to sex but has varied somewhat with respect to race. The proportion of women in the population has historically been about 55 per cent, but the City has never certified for hiring or hired a woman as a police officer. The proportion of blacks in the City increased from 10 per cent in 1965 to the present 60 per cent. Prior to 1967 the Police Department had no black officers. From 1967 to the filing of this suit the City hired 24 officers, of whom 8 persons or one third were black. During this time, about one third to one half of the applicants were black.¹

Defendants, pursuant to ordinances, regulations and policies, accept applications only from those persons who are over 5 feet 8 inches and 150 pounds. The qualifying process for those whose applications are accepted generally includes a written examination (the Army General Classification Test), an athletic test, a medical examination, and an oral interview. These items are scored as will be further discussed below and are adjusted by a credit if the applicant is a veteran. The Civil Service Commission then certifies those applicants receiving the highest scores to the City Manager, who must hire one of the top three certified for each position.

The named plaintiff, a black woman who is 5 feet 5 inches and weighs 136 pounds, received notice that East Cleveland would be accepting applications for police officer from her classmate in law enforcement at Cuyahoga Community College. When she inquired about the position of police officer she was originally discouraged by a receptionist of the Civil Service Commission. After applying she was told by the receptionist that she could not take the examination because she did not meet the minimum height and weight requirements. She then filed this suit and took the examination pursuant to a temporary restraining order issued by Judge William K. Thomas. Upon completion of the examination defendants reported that plaintiff had scored 102.1 and that, because the "cut-off" score for the eligibility list was 146, plaintiff was not placed on the certified list of eligible police candidates. Defendants maintain that plaintiff may be prohibited from taking subsequent examinations because she does not meet the height and weight requirements.

II. DEFENDANTS' MOTION TO DISMISS

Defendants have moved to dismiss certain named defendants on the grounds of legislative immunity, failure to state a claim against certain defendants and inapplicability of the term "person" as used in § 1983 to the City. In addition, defendants have moved to dismiss the entire suit on the grounds that the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, is the exclusive remedy for employment discrimination and that this suit is barred for a failure to exhaust remedies available before the Equal Employment Opportunity Commission, as is required under that statute. The Court deferred ruling on these motions until after trial.²

Defendants correctly argue that this Court has no jurisdiction over defendant City of East Cleveland under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) under the holding in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), that a municipal corporation is not a "person" for purposes of § 1983. The Court in City of Kenosha, however, reserved the question of jurisdiction under the general federal question statute, 28 U.S.C. § 1331, over claims brought under the Fourteenth Amendment. City of Kenosha, supra, 93 S.Ct. 2222, 37 L.Ed.2d at 117. In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court permitted a litigant to raise a Fourth Amendment claim in federal court under 28 U.S.C. § 1331 but did not discuss whether a Fourteenth Amendment claim would also pose a federal question. Because there has been insufficient argument on this point, the Court is hesitant to rule that a litigant may obtain relief for a violation of the Fourteenth Amendment by a state or subdivision thereof which denies "to any person within its jurisdiction the equal protection of the laws" under the jurisdiction conferred by 28 U.S.C. § 1331 alone. See generally Bivens, supra, 403 U.S. at 398, 91 S.Ct. 1999 (J. Harlan's concurring opinion). Furthermore, in this case the plaintiffs have not provided evidence sufficient to determine whether the amount in controversy as to each member of the class meets the $10,000 jurisdictional minimum required under § 1331. Snyder v. Harris, 394 U. S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969) (regarding jurisdiction under 28 U.S.C. § 1332); Russo v. Kirby, 453 F. 2d 548, 551 (2d Cir. 1971) (applying to jurisdiction under 28 U.S.C. § 1331). Therefore, the Court will dismiss the claims against the City of East Cleveland without prejudice to their reinstatement if plaintiffs show a basis for jurisdiction within twenty days of the date of this Order.

Because plaintiffs have failed to show any non-legislative function performed by the City Commissioners or any acts by the City Manager which have denied plaintiffs equal protection of the laws, the Court must also dismiss these parties defendant from the suit. It does, however, find that the Police Chief's functions in defining the duties and required skills for the police officer and the Civil Service Commissions' acts in promulgating requirements for certifying applicants are properly before this Court and that the Police Chief and Civil Service Commission should not be dismissed.

Finally, the Court finds defendants' argument that the Civil Rights Act of 1964 as amended in 1972 is the sole remedy for employment discrimination to be without merit. The following cases, many of which were against public employers and were brought after the 1972 amendment to the Civil Rights Act of 1964, reject the argument that the provisions of 42 U.S.C. § 2000e provide an exclusive remedy for employment discrimination, particularly in a case such as this in which a preliminary injunction is required immediately to prevent irreparable damage. Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); The Shield Club v. City of Cleveland, 5 CCH EPD ¶ 7027 (N.D.Ohio 1972) (J. Thomas); Harper v. Mayor & City Council, 359 F.Supp. 1187 (D.Md.1973); Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 354 F.Supp. 778 (D.Conn.1973), aff'd in part 482 F.2d 1333 (2d Cir. 1973); Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476 (7th Cir.1970), cert. denied, International Harvester Co. v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied 405 U.S. 916, 92 S.Ct. 931, 30 L. Ed.2d 785 (1972); O'Brien v. Shimp, 356 F.Supp. 1259, 1263-1265 (N.D.Ill. 1973).

III. HEIGHT AND WEIGHT REQUIREMENTS

Applicants for police officer in East Cleveland must be between 5 feet 8 inches and 6 feet 6 inches in height and must be between 150 and 235 pounds in weight. The height requirement is imposed by ordinance which provides:

To be eligible for appointment as patrolman or fireman, the applicant must be at least five feet, eight inches in height, but not over six feet, six inches. Ch. 123.07(d), Codified Ordinances of the City of

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