Waisome v. Port Auth. of New York & New Jersey
| Decision Date | 29 January 1991 |
| Docket Number | No. 88 Civ. 1234 (KTD).,88 Civ. 1234 (KTD). |
| Citation | 758 F. Supp. 171 |
| Parties | Felix WAISOME, et al., Plaintiffs, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY and the Port Authority Police Benevolent Association, Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
LDF — NAACP Legal Defense and Educational Fund, Inc., New York City (Julius LeVonne Chambers, Ronald L. Ellis, Eric Schnapper, of counsel), for plaintiffs.
The Port Authority of New York and New Jersey, New York City (Milton H. Pachter, of counsel), for defendants.
Plaintiff Felix Waisome, et al. commenced this action for injunctive and declaratory relief against defendants Port Authority of New York and New Jersey ("Port Authority") and the Port Authority Police Benevolent Association, Inc. ("PBA"), claiming violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, 2000e, et seq., as well as the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1983. Specifically, Waisome seeks relief based on allegedly unlawful selection criteria employed by the Port Authority for police promotions to the rank of Sergeant which had an adverse impact on himself and other like Black applicants. On February 24, 1988, two days after the complaint in this action was filed, Waisome moved for a preliminary injunction to enjoin the Port Authority's continuation to select candidates from a promotion list developed based on the disputed selection criteria. On October 14, 1988, I denied the motion for a preliminary injunction because a showing of irreparable injury was lacking. Waisome now moves pursuant to Fed.R. Civ.P. 23 for an order certifying this proceeding as a class action.1 Waisome, apparently inadvertently failed to raise the class certification issue at the preliminary injunction stage and seeks to correct the omission now. In addition, Waisome moves pursuant to Fed.R.Civ.P. 56 for partial summary judgment on the issue of Port Authority's liability. The Port Authority, in turn, cross-moves for summary judgment dismissing the complaint. Further, Port Authority asks that the merits of the claims be addressed before the class is certified.
On July 11, 1986, the Personnel Department of the Port Authority announced the commencement of an examination process for the purpose of establishing a list of Port Authority police officers eligible for promotion to the rank of Sergeant. Plaintiff's 3(g) Statement ("Plaintiff's 3(g)") ¶ 4.2 In order to be eligible to participate, candidates for promotion were required to have at least two years in grade (including Academy training) as a Port Authority police officer. Each candidate was required to be actually working as a police officer as of the first date of the written test. Defendant's Cross-Motion, Exh. 1.
The selection process for placement on the "Eligible List" consisted of three basic components. The first consisted of a written test in order to "measure knowledge of the law, police supervision and social and psychological problems in police work." The second component was an oral test to "measure judgment and personal qualifications." The third component was a performance appraisal consisting of two parts — a supervisory performance rating and a score based on the candidate's attendance record. Plaintiff's 3(g) ¶¶ 6, 7.
The written examination for police officers was administered on September 6, 1986 and a make-up test was administered for the written exam on September 20, 1986. Plaintiff's 3(g) ¶ 9. In mid-November, 1986, candidates were notified regarding their scores on the written component and given until December 19, 1986, to appeal the results. By January 8, 1987, all the appeals taken were completed. Plaintiff's 3(g) ¶ 9. The individual oral examinations were administered between January 26, 1987 and February 13, 1987. The performance appraisal process began on March 2, 1987 and was completed by March 20, 1987. Plaintiff's 3(g) ¶ 11. Performance appraisal ratings were factored into the total test score and the three-year eligibility list was issued on March 30, 1987. Plaintiff's 3(g) ¶ 11.
The passing score for the written examination was 66% and the passing score for the oral was 69.9%. Plaintiff's 3(g) ¶ 8. A passing score on the written was a prerequisite to proceed to the oral examination. In turn, a passing score on the oral was required to proceed to the performance appraisal. Plaintiff's 3(g) ¶ 8. The weights accorded to the three components of the selection process were 55% for the written examination, 35% for the oral examination and 10% for the performance appraisal process. Plaintiff's 3(g) ¶ 7.
A total of 617 police officers (including detectives) participated in the selection process. Of these officers, 508 were White and 64 were Black. Plaintiff's 3(g) ¶ 14. A total of 539 participants passed the written examination. Of those who passed the written exam, 455 were White and 50 were Black. Plaintiff's 3(g) ¶ 14.
Of the 539 successful candidates on the written examination, 531 participants took the oral examination. Of those who either decided not to or could not proceed further, 7 were White and 1 was Black. Plaintiff's 3(g) ¶ 21. Of the 531 participants who took the oral examination, 448 were White and 49 were Black. Plaintiff's 3(g) ¶ 23. Of the 531 participants, 310 passed the oral exam. Of those who passed, 258 were White and 33 were Black. Plaintiff's 3(g) ¶ 22. On the oral examination, the Black pass rate was 67.35%. This rate was 116.97% of the White pass rate of 57.58%. Plaintiff's 3(g) ¶ 22. Of the White candidates who participated in both the written and the oral examination, 51.70% passed (258 divided by 499) and of those Black candidates who participated in both oral and written examinations, 51.56% (33 divided by 64) passed. Defendant's 3(g) ¶ 5.
The eligibility list expired on March 30, 1990; 79 promotions had been made from the list and the 85th candidate on the list had been reached. The promoted officers who participated in the entire testing process included 70 Whites, 5 Blacks and 2 others. Plaintiff's 3(g) at 10-11. Two individuals who were "grandfathered" onto the list also accepted promotions, both were White.
The prerequisites to a class action, in the conjunctive are:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a)(1-4) (1990).
This case presents a situation in which class certification is consistent with Fed.R. Civ.P. 23. The underlying claim concerns the legality, under Title VII, of a promotional examination given in 1986-1987, the results of which were to be used to make all promotions to the position of Sergeant for a three-year period from 1987 through 1990. The proposed class, consisting of the Black officers who took that examination, totals more than sixty, which is large enough to make joinder impracticable. Whether or not the test is unlawful under Title VII, the central question in this case, is a question common to the claims of all the putative class members including the named plaintiffs. Although some of the plaintiffs have slightly different bases for their claims against the Port Authority and P.B.A., the facts and claims adduced represent common questions of law and fact. These questions turn on the allegedly disparate impact of the Port Authority's testing procedures on minority promotion opportunities. The denial of preliminary injunctive relief does not alter the fact that the Port Authority's use of the exam is clearly action taken "on grounds generally applicable by the class" and that if successful, the class may be entitled to "final injunctive relief." Fed.R.Civ.P. 23(b)(2).
The Port Authority maintains that certification of the plaintiffs as a class is unnecessary if the Court determines that the action is not meritorious, granting summary judgment in defendants' favor. I disagree. "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974) (quoting Miller v. Mackey International, 452 F.2d 424, 427 (5th Cir.1971)). Because the ,'" the constraints of Fed.R.Civ.P. 23 do not permit handling the merits of claim prior to certification. Id.
Moreover, class certification in this instance will advance the just and efficient disposition of the underlying claims. If the class is certified and Waisome prevails on the merits, all remedial issues may be resolved in a single proceeding. Thus, with class certification, all non-named Black test takers could be collaterally estopped from bringing individual claims at some later date. On the other hand, if the Port Authority prevails and the class were not certified, then all class members except the named plaintiffs would be free to file individual lawsuits challenging the legality of the disputed examination process. It would further appear that the plaintiffs are truly representative of the class and that plaintiffs' counsel will render appropriate representation to the class members. Thus, the plaintiffs in this action are hereby certified to proceed as a class.
The parties agree that the only issue to resolve on the merits is whether the examination process under challenge had adversely impacted Black candidates.3
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Waisome v. Port Authority of New York and New Jersey
...up to commencement of this suit are more fully set forth in the district court's thorough opinion, Waisome v. Port Auth. of New York and New Jersey, 758 F.Supp. 171 (S.D.N.Y.1991), with which we assume the reader's familiarity. We recount only those facts relevant to resolution of the issue......