United States v. City of Yonkers, No. 80 Civ. 7407 (ADS).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: SOFAER
• Citation: 592 F. Supp. 570
• Decision Date: 22 August 1984
• Docket Number: No. 80 Civ. 7407 (ADS).
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF YONKERS; Gerald Loehr as Mayor of the City of Yonkers; Charles Connolly as Commissioner of Police of the City of Yonkers; City of White Plains; Alfred Del Vecchio, as Mayor of the City of White Plains; John Dolce as Commissioner of Public Safety of the City of White Plains; New York State Department of Civil Service; Victor S. Bahou, as President and Commissioner of the New York State Department of Civil Service; Josephine J. Gambino and James T. McFarland, as Commissioners of the New York State Department of Civil Service, Defendants.

592 F. Supp. 570

UNITED STATES of America, Plaintiff,
v.
CITY OF YONKERS; Gerald Loehr as Mayor of the City of Yonkers; Charles Connolly as Commissioner of Police of the City of Yonkers; City of White Plains; Alfred Del Vecchio, as Mayor of the City of White Plains; John Dolce as Commissioner of Public Safety of the City of White Plains; New York State Department of Civil Service; Victor S. Bahou, as President and Commissioner of the New York State Department of Civil Service; Josephine J. Gambino and James T. McFarland, as Commissioners of the New York State Department of Civil Service, Defendants.

No. 80 Civ. 7407 (ADS).

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

August 22, 1984.

592 F. Supp. 571

COPYRIGHT MATERIAL OMITTED

592 F. Supp. 572

Rudolph W. Giuliani, U.S. Atty., for the Southern District of New York, New York City, for plaintiff; Jane E. Bloom, Kathleen R. Roberts, Jane E. Booth, Asst. U.S. Attys., New York City, of counsel

Epstein Becker Borsody & Green, P.C., New York City, Arthur J. Doran, Jr., Corp. Counsel, City of Yonkers, Yonkers, N.Y., for Yonkers defendants; Susan Schenkel-Savitt, Richard L. Steer, New York City, of counsel.

Robert Abrams, Atty. Gen. of the State of New York, New York City, for State Defendants; Melvyn R. Leventhal, Stanley A. Camhi, Martha O. Shoemaker, New York City, of counsel.

OPINION AND ORDER

SOFAER, District Judge.

On December 30, 1980, the United States filed this action against the City of Yonkers, its Mayor and Police Commissioner, the New York State Department of Civil Service, and its President and Commissioners. The suit challenged hiring procedures for the Yonkers Police Department, including written examinations administered in 1972, 1973, and 1977, physical agility tests administered in 1973 and 1977, and a height requirement in effect until 1973. The complaint alleged that these defendants engaged in a pattern and practice of discrimination on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17; the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6716; the Comprehensive Employment and Training Act of 1973, Pub.L. No. 93-203, § 612, 87 Stat. 839, 882 (repealed 1982); and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d. The United States requested that defendants be ordered to employ nondiscriminatory selection procedures and sought compensation for identifiable victims in the form of jobs, backpay, and retroactive seniority. Efforts to settle the litigation originally appeared successful, but ultimately failed, necessitating long and expensive discovery, which still continues.

Meanwhile, however, both the Yonkers and the state defendants filed motions for summary judgment. They argued, first, that the Attorney General has no authority to bring this suit because the Reorganization Act under which the President has assigned him this responsibility contained an unconstitutional legislative veto provision; second, that the Act unconstitutionally delegated legislative power; third, that even if the Attorney General had authority to bring the suit he failed to fulfill statutorily

592 F. Supp. 573

prescribed administrative prerequisites; and fourth, that the suit was untimely. In addition, the state defendants argued that they are not an employer for purposes of Title VII and that the eleventh amendment bars the Yonkers crossclaim against them

Many of these contentions appeared to require a close review of the litigation's history. The trial was therefore commenced, on the supposition that by hearing the federal government's prima facie case the motions could more accurately be considered, and the overall litigation might be narrowed to avoid the great costs the parties are being forced to bear, and which are no doubt particularly burdensome for Yonkers. At the close of the initial phase of trial, the Yonkers and state defendants moved to dismiss the action pursuant to Federal Rule of Civil Procedure 41(b), arguing that the United States had failed to establish a prima facie case of a pattern or practice of discrimination.

The rulings that follow establish that the Attorney General has properly brought this case against all defendants. The defendants' challenges on various legal grounds to the propriety of this suit are therefore denied, except that the Yonkers crossclaim against the state defendants is dismissed. A separate memorandum and order will assess the sufficiency of the United States' prima facie case, after defendants have had an opportunity to crossexamine the government's expert witness.

I. Authority of the Attorney General.

Defendants challenge the authority of the United States to bring this litigation. They contend that the 1972 Amendments to Title VII deprived the Attorney General of independent authority to initiate pattern-or-practice suits. They also contend that the return of such authority to the Attorney General pursuant to authority granted the President in the Reorganization Act of 1978 is ineffective, because the Act included a unicameral legislative veto provision.

A. Effect of the 1972 Amendments to Title VII.

Section 707(a) of Title VII, upon which the United States relies for the Attorney General's authority to bring this suit, has remained unchanged since its enactment as part of the Civil Rights Act of 1964:

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

Pub.L. 88-352, Title VII, § 707(a), 78 Stat. 261, 42 U.S.C. § 2000e-6.

Not until the 1972 Amendments to the Act, however, did the "persons" subject to its coverage come to include "governments, governmental agencies, and political subdivisions". 42 U.S.C. § 2000e(a) (as amended by Pub.L. 92-261, § 2(1), 86 Stat. 103). In addition, the 1972 Amendments added three subsections to section 707 which, in conjunction with the expansion in coverage, prompted considerable confusion. Section 707(c) provided for the transfer of "the functions of the Attorney General under this section ... to the Commission" as of March 24, 1974. 42 U.S.C. § 2000e-6(c). Section 707(d) provided for the continuation of all suits commenced prior to the effective date of the transfer and the substitution of the Commission as plaintiff. Id. § 2000e-6(e). And that subsection also provided that all such actions "be conducted in accordance with the procedures set forth in section 2000e-5 of this title." Id.

592 F. Supp. 574

After enactment of the 1972 Amendments, the Attorney General consistently argued that Congress had not intended to deprive him of authority to bring pattern-or-practice suits against public employers in the absence of a referral from the Commission, but the argument fared poorly. Compare United States v. City of Milwaukee, 439 F.Supp. 264, 266-67 (E.D.Wis. 1977) (independent authority retained), with United States v. Board of Education of Garfield Heights City School District, 435 F.Supp. 949, 950-53 (N.D.Ohio 1976) (authority retained, but only upon referral from EEOC), aff'd, 581 F.2d 791 (6th Cir. 1978); and United States v. State of South Carolina, 445 F.Supp. 1094, 1110-11 (D.S.C.1977) (three-judge court) (same), aff'd mem. sub nom. National Education Association v. South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978); and United States v. Fresno Unified School District, 412 F.Supp. 392, 394 (E.D. Cal.1976) (Attorney General "presently has no authority to act on his own initiative in a pattern or practice case)", rev'd, 592 F.2d 1088 (9th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979); with id. at 393 ("entire pattern or practice jurisdiction" transferred); and United States v. Pima County Community College District, 409 F.Supp. 1061, 1062-63 (D.Ariz. 1976) (authority transferred altogether; only Commission can bring pattern-or-practice suit, even against public employer). See also Occidental Life Insurance Co. v. Equal Employment Opportunity Commission, 432 U.S. 355, 370, 97 S.Ct. 2447, 2456, 53 L.Ed.2d 402 (1977) (noting that 1972 Amendments "transferred the authority to bring pattern-or-practice suits from the Attorney General to the Commission," but not specifying any limits to that transfer); United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 843 n. 17 (5th Cir.1975) (dictum) (noting transfer as of March 24, 1974, to EEOC of "full range of `pattern or practice' functions" previously belonging to Justice Department); Equal Employment Opportunity Commission v. Continental Oil Co., 393 F.Supp. 167, 169 n. 1 (D.Colo.1975) (dictum) (after period of concurrent authority, "EEOC acquired exclusive power to sue in pattern or practice cases"), aff'd, 548 F.2d 884 (10th Cir.1977).

In 1978 President Carter exercised his authority under the Reorganization Act of 1977, 5 U.S.C. §§ 901-912, to issue Reorganization Plan No. 1. See 1978 U.S.Code Cong. & Admin.News 9795 (also reproduced at 5 U.S.C.A., App. 1, at 111-16 (West Supp.1984)). The Plan provided for the transfer to the Attorney General of "any function of the Equal Employment Opportunity Commission concerning initiation of...