# Guardians Ass'n of New York City Police Department, Inc. v. Civil Service Commission of New York

> Court of Appeals for the Second Circuit · July 25, 1980 · 633 F.2d 232

URL: https://www.frixlaw.com/law-library/cases/8912300

## Case

- **Full name:** The GUARDIANS ASSOCIATION OF the NEW YORK CITY POLICE DEPARTMENT, INC., the Hispanic Society of the New York City Police Department, Inc., Oswaldo Perez and Felix E. Santos Individually and on behalf of all others similarly situated v. CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK, Department of Personnel of the City of New York, The New York City Police Department, Alphonse D'Ambrose, Individually and in his capacity as Chairman of the Civil Service Commission of the City of New York and Personnel Director of the City of New York, James Smith and Josephine Gambino, Individually and in their capacity as members of the Civil Service Commission of the City of New York, and Michael J. Codd, Individually and in his capacity as Commissioner of the New York Police Department
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** July 25, 1980
- **Citations:** 633 F.2d 232; 23 Fair Empl. Prac. Cas. (BNA) 677; 23 Empl. Prac. Dec. (CCH) 31,153; 1980 U.S. App. LEXIS 15368
- **Precedential status:** Published
- **Opinion:** Concurrence by Kelleher
- **Judges:** Coffrin, Kelleher, Meskill
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8912300

## How later opinions describe it (automated extraction)

- holding the defendant’s refusal to hire based upon a discriminatory examination were “at the very least…the culmination of a continuously maintained illegal employment policy,” “were not discrete acts,” and “were carried out pursuant to a conceded and consistent policy.”
- explaining that Title VI’s language “is directed to the victims’ rights,” not “a violator’s conduct”

## Opinion text

KELLEHER, District Judge,
concurring:
I concur in the results set forth in Judge Meskill’s opinion and in the reasons therein set forth, except that I join Judge Coffrin insofar as he finds the absence of discriminatory intent as the proper basis on which to reverse as to the relief granted under Title VI.
In regard to the relief ultimately to be awarded, the district court is presented *271 with the requirement under the law that a delicate balance be struck of a sort not common to the majority of employment discrimination claims awarded under Title VII. It would appear inappropriate for this court to direct the district court, as a matter of law, to require wholesale reshuffling of the seniority lists from which future appointments must be made. As an equitable remedy, any such reshuffling must take into account the duly-acquired seniority status of those presently situated thereon. I concur in the remedy which will require new examinations for promotion to be held and that the length-of-service requirement for eligibility to take such examination may properly be modified to compensate for past discrimination. It may be that the remedy of damages and the propriety thereof is to be placed on the equitable scale in measuring the kind and character of compensation for past discrimination.
In this connection, the Court below should consider Franks v. Bowman Transportation Co., 424 U.S. 747 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 (1976), which discusses in detail the issues which surround the award of retroactive seniority to plaintiffs asserting a claim under Title VII. In Franks , the Court-in ruling that an award of retroactive seniority was appropriate under the circumstances of the case at hand-observed that:
. [T]he burden of the past discrimination in hiring is with respect to competitive status benefits divided among the discriminatee and nondiscrimi-natee employees under the form of relief sought. The dissent criticizes the Court’s result as not sufficiently cognizant that it will ‘directly implicate the rights and expectations of perfectly innocent employees.’ [citation omitted] We are of the view, however, that the result which we reach today [in awarding retroactive seniority to discriminatee employees]which, standing alone, establishes that a sharing of the burden of the past discrimination is presumptively necessary-is entirely consistent with any fair characterization of equity jurisdiction, particularly when considered in light of our traditional view that ‘[attainment of a great national policy . . must not be confined within narrow canons for equitable relief deemed suitable by chancellors in ordinary private controversies.’ [citation and footnotes omitted]”
424 U.S. at 777-778 , 96 S.Ct. at 1270-1271 .
However, the Franks court thereafter qualified its position by noting that the tool of retroactive seniority could be inappropriate in certain circumstances:
“In holding that class-based seniority relief for identifiable victims of illegal hiring discrimination is a form of relief generally appropriate under § 706(g), we do not in any way modify our previously expressed view that the statutory scheme of Title VII ‘implicitly recognizes that there may be cases calling for one remedy but not another, and-owing to the structure of the federal judiciary-these choices are, of course, left in the first instance to the district courts.’ [citation omitted] Circumstances peculiar to the individual case may, of course, justify the modification or withholding of seniority relief for reasons that would not if applied generally undermine the purposes of Title VII.41
[footnote 41: “Accordingly, to no ‘significant extent’ do we ‘[strip] the district courts of [their] equity powers.’ Post, at 1274. Rather our holding is that in exercising their equitable powers, district courts should take as their starting point the presumption in favor of rightful-place seniority relief, and proceed with further legal analysis from that point; and that such relief may not be denied on the abstract basis of adverse impact upon interests of other employees but rather only on the basis of unusual adverse impact arising from facts and circumstances that would not be generally found in Title VII cases.” * * *]
424 U.S. at 779 , 96 S.Ct. at 1271 [emphasis added].
The Court below on remand may properly find that just such an exceptional circum *272 stance exists here. Although, as the Franks Court noted, claims brought pursuant to Title VII regarding employment in private enterprise serve to vindicate a national policy against racial discrimination in employment, the case at hand differs from the typical private sector employment discrimination action in that another facet of the public interest is involved-one which must be given substantial weight. Vindication of the public’s paramount interest in the protection of its security demands that the police department be an effective, experienced, efficient, functional instrumentality, the high morale of which must be regarded as a correspondingly paramount interest. To displace officers from a seniority status duly acquired after years of arduous work and physical risk would inevitably undermine the morale of the police department to a very substantial degree. As a result, the department could be deprived of the wisdom born of the experience of those in its leadership positions.
The law is not required to disregard the effects of a retroactive award of competitive status seniority; indeed, in an employment activity such as this, where the public safety and welfare are so closely intertwined with the private rights of plaintiffs which are at stake, the equitable conscience of the district court must be greatly concerned with the broader impact of its chosen remedy upon all of the citizens of New York City-not just upon plaintiff class members. In the private enterprise context, any harm to an employer which may arise from a judicially-imposed remedy for past discrimination is limited to impairment of that employer’s profit-making capacity. Here, any impairment in the smooth operation of the police department would result in harm enveloping an infinitely broader group than merely the employer: such impairment diminishes the protections afforded by the police to the public at large. Therefore, it is inconceivable that, in adopting Section § 706(g) of Title VII, Congress was not necessarily cognizant of instances such as this where the interests at stake transcend the immediate rights of the employer and employees involved.
Accordingly, it would seem that the following approach should be taken upon remand. The issue of liability has been determined in favor of plaintiffs, giving rise to an entitlement on their behalf to relief. In addition to the remedy of money damages as recompense for past deprivations, with regard to the future the relief to be granted shall be that which emerges from the sound discretion of the district court in the exercise of its equitable powers. In exercising such powers, the district court should take into account all the circumstances of this case-taking new evidence, if necessary-to determine the extent to which the balance of equities requires the non-destruction of the present seniority system, as such system affects the morale and functional competence of the police department in vindicating the public’s interest in security.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8912300. Public record. Not legal advice.