United States v. City of Buffalo, Civ.-1973-414

Decision Date01 August 1978
Docket NumberNo. Civ.-1973-414,Civ.-1974-195.,Civ.-1973-414
Citation457 F. Supp. 612
PartiesUNITED STATES of America, Plaintiff, v. CITY OF BUFFALO, a Municipal Corporation, Thomas R. Blair, Police Commissioner, City of Buffalo Police Department, Anthony J. Colucci, Herbert L. Bellamy, Frank A. Stachowiak, Commissioners, City of Buffalo Civil Service Commission, Buffalo Police Benevolent Association, Defendants. UNITED STATES of America, Plaintiff, v. CITY OF BUFFALO, a Municipal Corporation, Karl K. Kubiak, Fire Commissioner, City of Buffalo Fire Department, Anthony J. Colucci, Herbert L. Bellamy, Anthony S. Kowalski, Commissioners, City of Buffalo Civil Service Commission, Defendants.
CourtU.S. District Court — Western District of New York





Richard J. Arcara, U. S. Atty., Buffalo, N. Y. (James S. Angus, and Grover G. Hankins, U. S. Dept. of Justice, Washington, D. C., of counsel), for the Government/Plaintiff.

Joseph P. McNamara, Corp. Counsel, Buffalo, N. Y. (James J. McLoughlin, Buffalo, N. Y., of counsel), for defendants City of Buffalo, Thomas R. Blair, Anthony J. Colucci, Herbert L. Bellamy, Frank A. Stachowiak, Karl K. Kubiak, and Anthony S. Kowalski.

Nicholas J. Sargent, Buffalo, N. Y., for the defendant Buffalo Police Benevolent Association.

CURTIN, Chief Judge.

This case is a consolidated civil rights action brought by the United States Attorney General hereinafter "Government" challenging the employment practices of the Buffalo Police Department and the Buffalo Fire Department.

The suit against the Police Department was originally filed in August 1973. It was brought against the City of Buffalo, the Police Commissioner, the Commissioners of the Buffalo Civil Service Commission who are responsible for civil service operations including entrance and promotional examinations, and the Buffalo Police Benevolent Association BPBA, the labor organization which acts as collective bargaining agent for employees of the Police Department. The action sought to enforce Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq.,1 and the rights guaranteed by the fourteenth amendment to the United States Constitution and by 42 U.S.C. §§ 1981 and 1983. On July 29, 1974 the complaint was amended to add the enforcement of the provisions of the State and Local Fiscal Assistance Act of 1972 (Pub.L. 92-512, 86 Stat. 919), 31 U.S.C. §§ 1221 et seq. Jurisdiction in this court is based on 42 U.S.C. § 2000e-6(b), 28 U.S.C. §§ 1343(3), 1343(4), 1345 and upon 31 U.S.C. § 1242.

The Government filed the action against the Buffalo Fire Department on April 24, 1974 to enforce the same statutory and constitutional provisions with the same jurisdictional bases. On May 8, 1974, with the consent of all parties, the two suits were ordered to be consolidated. After some months of pre-trial discovery, the actions were brought to trial on April 1, 1975 and concluded on April 21, 1975. Subsequently the parties submitted proposed findings of fact and conclusions of law. In the autumn of 1976, at the direction of the court, the parties submitted further briefs regarding several new case law developments. Due to the heavy demands of other court business resulting from the death of Honorable John O. Henderson and from several protracted lawsuits before this court, I was unable to render my decision earlier.

Essentially the suits allege a pattern or practice of discrimination against minorities. The Government challenges the hiring requirements of both the Police and Fire Departments, namely, written examinations, height and other physical standards, the high school diploma requirement, and the longstanding absolute prohibition against women as either patrolmen or fire-fighters. Further, certain terms and conditions of employment are attacked, including both general policies and a number of specific incidents which have occurred in past years. Finally, several individual claims of employment discrimination have been raised for which individual relief is sought.

Since these suits were initiated both the Police and Fire Departments refrained from appointment of any candidates based upon the eligibility lists derived from the 1973 examinations. However, by a stipulation between the City and the Government filed on May 5, 1977, a number of firefighter appointments were approved based upon a formula embodied in the stipulation. The patrolman eligibility list based upon the examinations in question expired on April 4, 1977. The firefighter eligibility list in question expired on June 20, 1977.


As mentioned above, the Government seeks to enforce a number of statutory and constitutional provisions in this suit. Although these provisions may apply to all of the practices cited here, each imposes a different standard of liability.

The standard for proof of a constitutional violation under §§ 1981 and 1983 is decidedly more exacting than that under Title VII. Since this case was argued, the United States Supreme Court has issued a major opinion on employment discrimination in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The Court majority distinguished the standards for a finding of a violation of Title VII from that required to find invidious discrimination under the equal protection clause of the fourteenth amendment to the United States Constitution. Under Title VII a court may focus solely on the racially disproportionate impact of the challenged hiring practice, but to establish a constitutional violation, the acts in question must demonstrate a racially discriminatory purpose. See Washington v. Davis, supra at 238-9, 96 S.Ct. 2040.

Specific criteria have been established by the Supreme Court for review of job hiring requirements under Title VII. If a test for employment or promotion has a disproportionately adverse effect on black applicants, it is unlawful under Title VII unless it is shown to be related to job performance. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court stated:

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.
The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. 401 U.S. at 431, 91 S.Ct. at 853.

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Court amplified the law by ruling that a prima facie case of discrimination is established where evidence shows that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. 422 U.S. at 425, 95 S.Ct. 2362. Upon such a showing of disproportionate impact the burden of persuasion shifts to the employer to show that any given requirement has a manifest relationship to the employment in question, and that the disparity is the product of nondiscriminatory factors. Griggs, supra 401 U.S. at 432, 91 S.Ct. 849. Furthermore, since Title VII explicitly prohibits discrimination based upon sex as well as upon race, this standard should also be applied when sex is at issue. See Bowe v. Colgate-Palmolive Co., 489 F.2d 896, 900 (7th Cir. 1973).

It should be noted that the legal standard under the State and Local Fiscal Assistance Act closely parallels that found under Title VII. Section 122(a) of the Act, 31 U.S.C. § 1242(a), states:

No person in the United States shall on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the Act.

Further regulations issued by the Secretary of the Treasury under this provision state:

In any program or activity funded in whole or in part with entitlement funds, a recipient government may not . . subject any individual to discrimination on the ground of race, color, national origin, or sex in its employment practices. 31 C.F.R. § 51.53(a).

The regulations also state that the standards for determination of employment discrimination under this Act are ordinarily the same as standards used by the Equal Employment Opportunity Commission under Title VII. 31 C.F.R. § 51.53(b). Since regulations promulgated pursuant to rule-making authority granted by statute have the force of law, see, e. g., Federal Crop Ins. Co. v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 92 L.Ed. 10 (1947), this court may apply virtually the same standard as found under Title VII in this case. See United States v. City of Chicago, 549 F.2d 415, 440 (7th Cir. 1977).


A question of mootness has arisen in regard to several of the hiring practices involved in this suit, namely, the written examinations, the physical examinations, and the height requirements in effect in 1973. As mentioned previously, the eligibility lists for both patrolman and firefighter positions based upon those requirements have expired without any appointments based upon them.

The mootness doctrine, which is derived from article III of the Constitution, prevents the court from ruling on the merits of a question when the court can no longer grant relief which would have any practical effect. See Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); see generally 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3533 at 263 (1975). The focus tends to be on the ability of the court to provide any presently meaningful remedy in light of the court's ability to surmise continuing effects or to forecast possible future effects. Wright, Miller & Cooper, supra at 270.

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