Petition — Prate v. Freedman

a Supreme Court, U.S. ~\

FILED

| = JAN 17 j079

IN THE SUPREME COURT

UNITED STATES OF AMERICA OCTOBER CARA dd jp, crea

- 22-1015 te

RONALD PRATE, LEONARD LA ROSA, PATRICIA PLUMERI,

PATRICIA A. DOYLE, THERESA YOUNG, TERRENCE P.

ANDERSON, MICHAEL A. DI GIOVANNI, GARY GENNARINO,

MICHAEL C. KELLER, CHARLES J. ZONA, JOSEPH P.

TANTALO, MICHAEL PERRY, SAMUEL T. GERMANO, RONALD

S. ZAVAGLIA, CAROL TSCHIDERER and THOMAS A.

TSCHIDERER,

Petitioners,

ELISHA FREEDMAN, CITY MANAGER OF THE CITY OF

ROCHESTER, NEW YORK; THOMAS HASTINGS, CHIEF OF

POLICE OF THE CITY OF ROCHESTER POLICE DEPARTMENT;

MEMBERS OF THE COUNTY OF MONROE CIVIL SERVICE

COMMISSION; and EXECUTIVE DIRECTOR OF THE COUNTY

OF MONROE CIVIL SERVICE COMMISSION,

Respondents.

JOHN HOWARD, JOHN WYCHE and JOHNNY SMITH,

Respondents.

PETITION FOR WRIT OF CERTIORARI

ANGELO T. CALLERI, ESQ.

ANTELL, HARRIS & CALLERI

ATTORNEYS AND COUNSELORS AT LAW

600 MARINE MIDLAND BUILDING

19 WEST MAIN STREET

ROCHESTER, NEW YORK 14614

TABLE OF CONTENTS

a

Ro

Questions Presented. ...........4

Constitutional Provisions, Statutes

and Regulations ........44246ee 6

Statement of Facts .......e0+e0e6e-e2e7

Reason for Granting the Writ ...... .13

DS ob 6 6 tw toe ee ew 6 te 6 be ee

The Petitioners, Ronald Prate, et al.,

respectfully pray that a Writ of

Certiorari be issued to review the

judgment and opinion of the United

States Court of Appeals for the

Second Circuit, entered in this

proceeding on October 20, 1977.

—

OPINIONS BELOW

On Octobex 20, 1977 the United States

District Court of Appeals for the Second

Circuit entered an order without opinion

affirming the decision of the United States

District Court for the Western District of

New York. (Appendix D, pp. 1, 2).

The opinion of the United States

District Court for the Western District of

New York (Appendix C, pp. 1-11) entered the

3rd day of May, 1977 has not been reported.

JURISDICTION

The Judgment of the United States

Court of Appeals for the Second

Circuit, affirming the decision of

the United States District Court

for the Western District of New

York, was entered on the 20th day

of October, 1977. (Appendix D,

pp- 1, 2).

The jurisdiction of the Court is

invoked under Title 28 of the United

States Code, §1254(1), providing for

the granting of a Writ of Certiorari

upon the petition of any party after

rendition of judgment by the Court

of Appeals for the Second Circuit.

QUESTIONS PRESENTED

Has the Court of Appeals erred in

holding that the instant action is

an impermissable collateral attack

on the Consent Decree?

Has the Court of Appeals for the

Second Circuit erred in affirming

the decision of the United States

District Court for the Western

District of New York where there

has been no admission or judicial

finding of past discrimination and

a Consent Decree has nevertheless

been entered which prefers less

qualified minority applicants for

an entry level position in the City

of Rochester Police Department over

non-minority applicants?

Has the Court of Appeals for the

Second Circuit erred in affirming

the decision of the United States

District Court for the Wester

District of New York in view of

the decision of the Supreme Court

of the United States in Washington

v. Davis, 427 U.S. 229, 48 L. Ed. 2d

597, 96 S.Ct. 2040 (1976)?

Ee -_ ee —

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS

INVOLVED

The provisions of Constitutions,

Statutes and Regulations which are

relevant to the decision of this case,

and the pertinent text of which is set

forth in Appendix A hereto, are as

follows:

1. Article IV, Section 1 of the United

States Constitution.

3. 28 U.S.C. Section 1343(3).

3. 42 U.S.C. Section 1981.

4. 42 U.S.C. Section 193.

5. 42 U.S.C. Section 2000(d).

6. 42 U.S.C. Section 2000(e) et seq.

7. 42 U.S.C. Section 2000(d)-2.

8. 28 C.F.R. Section 42. 201 (a)-(b).

9. 28 C.F.R. Section 42. 203.

10. Article 1, Section 11 of the

New York State Constitution.

ll. Article 5, Section 6 of the New

York State Constitution.

STATEMENT OF THE FACTS

The action from which appeal was taken to

the U.S. Court of Appeals for the Second Circuit

was commenced by the sixteen named Petitioners

on September 17, 1976. Petitioners sought relief

from past discriminatory employment practices

which have preferred black, Spanish surnamed

and other non-white persons over white persons

in the recruiting, testing and hiring of appli-

cants for the position of police officer in the

City of Rochester, New York. Past discrimination

and the perpetuation thereof has resulted from

the implemention of a Consent Order and Judgment

signed by the Honorable Harold P. Burke on May

12, 1975 which provided in pertinent part for

a 25% minority hiring quota to be effectuated

by the creation of two separate eligibility lists,

one for minority and the other for non-minority

candidates. Until the 25% quota is reached,

appointments to the entry level position of police

officer are to be made by selecting two persons

from the list of minority candidates for every

three persons selected from the list of non-

minority candidates.

Fourteen of the sixteen discriminatees

herein took and passed the November 9, 1974

qualifying examination but have thus far been

denied appointment. The two remaining discri-

minatees, Carol Tschiderer and Thomas A.

Tschiderer, took and passed the July 10, 1976

qualifying examination and have Similarly been

denied appointment.

Respondents have arbitrarily and wrongfully

determined that in order for a white person

to be potentially eligible for appointment as

a police officer, his score on the written

examination must be 90 or over while a non-white |

7

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persons's score must be 75 or over. Non-white

persons having a particular score are preferred

over white persons having the same or higher

scores.

The above mentioned Consent Order resulted

from the action entitled "John E. Howard, et

al v. Elisha Freedman, et al 74 Civ 234

(W.D.N.Y.)" wherein Plaintiffs sought relief

against the allegedly discriminatory hiring

practices of the Rochester Police Department.

Prior to the entry of the Consent Order, there

was no hearing on the question of past discri-

mination nor on the job relatedness of the

qualifying examination given and administered

by Respondents on November 9, 1974. In fact,

these findings have never been a part of the

record.

A “hearing" into the fairness and propriety

of the stipulation of settlement was held before

the Honorable Harold P. Burke on the day that

trial was to commence, however, the sole finding

made thereat was that adequate notice had been

given to members of the minority class. Indeed,

publicity was predominately directed towards

the minority class as evidenced by the words

of the Consent Order itself:

"The parties hereto have entered

into a Stipulation for Settlement

of the issues raised in this

action; and the Court having

ordered that notice of hearing on

the advisability of the settlement

be given to the members of the

class; and the Court, after said

notice and hearing having approved

the terms of the said Stipulation

for Settlement,"

None of the Petitioners received notice of the

"hearing" before the Honorable Harold P. Burke,

although fourteen of them had previously taken

the November 9, 1974 entrance examination and

were known by Respondents to be members of a

class of discriminatees against whom the Consent

Order would operate. None of the Petitioners

Was present at the hearing.

Thereafter fourteen of the sixteen named

Petitioners sought to intervene in the Howard

action pursuant to Rule 24(a) (2) FRCP. Their

application for intervention was denied, however,

on the basis of untimeliness and adequacy of

notice.

The present action was brought pursuant

to Article XIV, §1 of the United States Consti-

tution, the Civil Rights Acts of 1870 and 1871,

Title VI of the Civil Rights Act of 1964, Title

-10=

Vil of the Civil Rights of 1964, as amended,

42 U.S.C. §$2000(e) et seq.and Article V, §6

of the New York State Constitution to redress

the evils of the two list hiring scheme.

Respondents-Intervenors moved to intervene on

or about September 27, 1976, which motion was

granted by the Court. Petitioners moved for

a preliminary injunction to restrain appointments

to the Police Academy on or about October 14,

1976 and such motion was denied by order of

the Court dated October 20, 1976. The Respondents-

‘

Intervenors and the Respondent, County of Monroe,

moved by Notice of Motion dat. ji October 8, 1976

to dismiss Petitioner's cause of action pursuant

to Rule 12b FRCP on the ground the Court lacked

jurisdiction. The Court, by the Honorable John

T. Curtin, rendered its decision on May 3, 1977,

granting the motion to dismiss on the grounds

of improper collateral attack upon a final

judgment.

The Consent Order and Judgment, by its

very terms however, is not final. Paragraph

~) le

12 of the Consent Order and Judgment states:

“The United States District Court

for the Western District of New

York shall continue to have juris-

diction of this matter to entertain

an application by any party hereto,

made upon papers served upon the

other parties hereto at least ten

days prior to the return date

thereof, seeking relief in the

form of interpretation, appli-

cation, adjustment or termina-

tion of any of the terms of the

Stipulation on the grounds of

inequity or impractability."

Petitioners appealed from this dismissal

to the United States Court of Appeals for the

Second Circuit which affirmed without opinion.

Based upon the non-finality of the Consent

Order and Judgment, the inapplicability of the

doctrine of collateral estoppel and for other

reasons more particularly set forth below,

Petitioners euasewmiatiie pray that this

Honorable Tribunal will grant a Writ of

Certiorari.,.

REASONS FOR GRANTING THE WRIT

I

THIS CASE MERITS REVIEW BY THIS COURT ON

CERTIORARI BECAUSE THIS COURT NEEDS TO SETTLE

THE QUESTION WHETHER PERSONS NOT PARTIES TO A

PRIOR ACTION NOR IN PRIVITY WITH ANY PARTY, AND

WHO HAVE EXPRESSLY BEEN DENIED THE RIGHT TO

INTERVENE, MAY BE HELD BOUND BY A NON-FINAL CONSENT

ORDER RESULTING FROM A STIPILATION OF SETTLEMENT

OF THE PRIOR ACTION.

There is a fundamental difference between the

doctrine of res judicata and collateral estoppel.

Under the doctrine of res judicata, a judgment

on the merits in a prior suit involving the

same parties or their privies bars a second

suit based on the same cause of action. Under the

doctrine of collateral estoppel, on the other

hand, such a judgment precludes relitigation

of issues actually litigated and determined in

the prior suit, regardless of whether it was

based on the same cause of action as the second

suit. Lawlor v. National Screen Service Corp.,

349 US 322, 326, 75 S. Ct. 865, 867, 99 L. Ed.

1122 (1955). Since Petitioners have

commenced but one action against Respondents,

=) 3=

the doctrine of res judicata is inapplicable.

There are at least four elements which

must be satisfied before an order in a former

action can be given collateral estoppel effect

at a later proceeding: (1) [T]he issue sought

to be precluded must be the same as that involved

in the prior action; (2) That issue must have

been actually litigated; (3) It must have been

determined by a valid and final judgment; and

(4) The determination must have been essential

to the prior judgment. Haize v. Hanover Ins.

Co., 536 F2d 576, 579 (3d Cir. 1976); See 1B

J. Moore, Federal Practice 0.443[1] (2d ed.

1974); restatement (2d) of judgments, Tent Draft

#1, $68 (March, 28, 1973). At least three of

these four minimum requirements have not been

met.

The cases contain factually distinguishable

issues. Plaintiffs in the Howard action alleged

that an unvalidated written qualifying examina-

tion had a disproportionate and, therefore,

discriminatory impact upon non-white minority

olin

candidates. Plaintiffs in Prate attack a discrimin-

atory two list hiring system which intentionally

prefers lesser qualified minority candidates

solely on the basis of race. The claim is one

of discrimination in reverse against white

candidates.

In Mc Aleer v. American Telephone & Telegraph

Co., 416 F. Supp., 435 (1976), Plaintiff, Mc Aleer,

commenced his action pursuant to Title VI of the

Civil Rights Act of 1964 claiming that a less

qualified, less senior female was preferred over

him for appointment. AT & T defended on the

basis of a consent judgment containing an affirma-

tive action program which obligated it to favor

women regardless of seniority in order to eliminate

past sex discrimination. The Court, treating

the question of identity of issues, stated at

pages 438, 439:

“Plaintiff, Mc Aleer, thus

stands as an innocent employee

who had earned promotion but

was disadvantaged when AT & T

rejected his application in

order to rectify its past dis-

crimination against women.

-15-

While factually related to the

Philadelphia proceeding, this

claim does not in any way impugn

or collaterally attack the judg-

ment in that case. Rather, it

asserts a cause of action for

sex discrimination within the

Civil Rights Act of 1964 and

this Court clearly has juris-

diction to decide the issue.

It is unnecessary to elaborate

on the obvious fact that a

Consent Decree expressly did

not and could not have conclu-

Sively determined the rights

of nonparties such as Plaintiff

Mc Aleer."

By parity of reasoning, jurisdiction existed to

determine Petitioner's claim of racial discrimina-

tion.

The fundamental requirement of actual litiga-

tion is simply not present in this case. There

has never been a hearing on the merits; Petitioners

have never been permitted to join as parties to

the Howard action. Absent actual litigation,

there can be no collateral estoppel.

Nor is the Consent Order a valid and final

one. Paragraph 12 of the Consent Order expressly

provides for continuing jurisdiction by the

District Court to amend or even terminate the

-16-

said order. When an order is subject to redeter-

mination, as such, it is nonfinal. Gerstle v.

Continental Airlines, Inc., 466 F2d 1374, 1377

(10th Cir. 1972); In re Cessna Aircraft Distri-

butorship Antitrust Litigation, 518 F. 2d 213,

215 (8th Cir.), Cert. denied, 423 U.S. 947, 96

S.Ct. 363, 46 L. Ed. 2d 282 (1975).

Absent a finding of a clear cut patter of

long-continued and egregious racial discrimination,

the imposition of mandatory quotas is constitution-

ally forbidden reverse discrimination. Kirkland

v. New York State Department of Correctional

Services, 520 F.2d 420 (2d Cir. 1975). A long

soa ene etn ninth ee. , eta te eee

term, mandatory hiring quota, based upon no showing

whatsoever of past discrimination nor its perpetua-

tion, is here involved. The order is constitution-

ally invalid and affords no basis for the applica-

tion of the doctrine of collateral estoppel.

Fundamentally, the party against whom the

estoppel is asserted must have been a party, or

in privity with a party to the prior adjudication.

Scooper Dooper, Inc. v. Kraftco Corp., 494 F2d

-l/]-

840, 844 (3rd Cir. 1974). Petitioners were not

parties to the earlier Howard action. Fourteen

of the sixteen Petitioners sought to intervene

but were expressly denied that right. ‘Two of

the named Petitioners, Carol Tschiderer and Thomas

Tschiderer, were not at all involved in prior

proceedings; they did not seek to intervene and,

in fact, did not take the written qualifying

examination until July 10, 1976.

It is respectfully submitted that the District

Court has misapplied the doctrine of collateral

estoppel to Petitioners prejudice and has departed

far from the accepted and usual course of judicial

proceedings. In affirming the decision below,

the U. S. Court of Appeals for the Second Circuit

has so far sanctioned such a departure as to call

for an exercise of this Court's power of super-

vision.

II

THIS CASE MERITS REVIEW BY THIS COURT ON

CERTIORARI BECAUSE THE DECISION OF THE COURT

OF APPEALS IS IN CONFLICT WITH ITS DECISIONS

IN UNITED STATES V. WOOD, WIRE AND METALS LATHERS

INTERNATIONAL UNION, LOCAL UNION NO. 46, 471F.2d

408, PATTERSON V. THE NEWSPAPER AND MAIL DELIVERS'

UNION OF NEW YORK AND VICINITY, 514F2d 767

(1975), VULCAN SOCIETY OF N. Y. CITY FIRE DEPART.,

INC. V. CIVIL SERVICE COMMISSION OF THE CITY

OF NEW YORK, 490F2d 387 (1973), BRIDGEPORT

GUARDIANS, INC. V. MEMBERS OF THE BRIDGEPORT

CIVIL SERVICE COMMISSION, 482F2d 1333 (1973),

KIRKLAND V. THE NEW YORK STATE DEPARTMENT OF

CORRECTLONAL SERVICES, 520F2d 420 (2d Cir. 1975)

AND IS EQUALLY IN CONFLICT WITH UNITED STATES

V. CITY OF CHICAGO, 549F2d 415 (7th Cir. 1977)

AND MYERS V. GILMAN PAPER CORP., 544F2d 837

(5th Cir. 1977).

42 U.S.C. §2000(e) - 2(J) provides:

“Nothing contained in this sub-

chapter shall be interpreted

to require any employer, employ-

ment agency, labor organization,

or joint labor management

committee subject to this sub-

chapter to grant preferential

treatment to any individual or

to any group because of the

race, color, religion, sex or

national origin of such indivi-

dual or group on account of an

imbalance which may exist with

respect to the total number or

percentage of persons of any

race, color, religion, sex or

national origin employed by any

employer, referred or classified

for employment by any employ-

ment agency or labor organiza-

-19-

tion, admitted to membership

or classified by any labor

organization, or admitted to

or employed in any apprentice-

ship or other training program,

in comparison with persons of

such race, color, religion,

sex or national origin in any

community, state, section, or

other area, or in the avail-

able work force in any com

munity, state, section or

other area."

The only limitation on the powers of

affirmative relief granted by Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

§2000(e) et seq. is that restricting prefer-

rential quota hiring. In order for a quota

to be distinguishable from a preference, there

must be a specific finding of past discrimi-

nation. Quotas merely to attain racial balance

are expressly forbidden, however, quotas to

correct past discriminatory practices are not.

United States v. Wood, Wire & Metal Lathers

International Union, Local Union No. 46, 471F2d

408.

In Wood, supra., the provisions of a

Consent Decree requiring a local wnion to take

=29=

certain affirmative action to remedy the effects

of past discriminatory practices were upheld

on appeal. The United States Court of Appeals

for the Second Circuit found that the record

was replete with evidence of past discrimination

including an admission and acknowledgment by

appellants themselves in the settlement agreement

which became the basis of the Consent Decree.

In Patterson v. Newspapers and Mail

Delivers’ Union of New York and Vicinity, 514

F2d 767, 771, amother case involving a Consent

Decree the Court, citing Wood, supra., upheld

the challenged Consent Decree stating:

"Nor should we substitute our

ideas of fairness for those

of the District Judge in the

absence that he acted arbitrar-

ily or failed to satisfy him

self that the settlement

agreement was equitable to all

persons concerned and in the

public interest, (citations

omitted), especially in a

case like the present one

where the settlement was

approved after a four week

trial on the merits, and two

hearings with respect to the

fairness and adequacy of the

proposed agreement."

a2io

A prima facie case of discrimination

is established under Title VII where the evidence

shows “that the tests in question select appli-

cants for hire or promotion in a racial pattern

Significantly different from that of the pool

of applicants." Albemarle Paper Co. v. Moody,

422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed. 2d 280

(1975). Upon such a showing, the burden shifts

to the employer to show "that any given require-

ment [has] a manifest relationship -o the employ-

ment in question," and that the "disparity [is]

the product of non-discriminatory factors."

Griggs v. Duke Power Co., 401, U.S. 424, 91

S. Ct. 849, 28 L. Ed. 2d 158 (1971).

It is respectfully submitted that before

a permanent 25% hiring quota is approved, there

must be a fact finding hearing on the issues

of past discrimination and job-relatedness of

the qualifying examination. Otherwise, an

unlawful hiring preference exists.

The two list hiring system at issue has

precisely the same characteristics and conse-

@22=

quences as the system disallowed in Kirkland

v. New York State Department of Correctional

Services, 520 F2d 420 (2nd Cir. 1975). The

benefits of such order are not limited to the

plaintiffs class. Its quota requirements are

based upon a shifting and rapidly expanding

racial base, wholly unrelated to the consequences

of any alleged past discrimination. It provides

for appointment according to race without regard

to the individual applicant's standing on a

job-related examination. It completely ignores

the statutory requirements and constitutional

purpose of the New York Civil Service Law and

constitutes Court-imposed reverse discrimination

without any exceptional or compelling govern-

mental purpose.

Article 5, Section 6, of the New York

Constitution requires that appointments and

promotions in the civil service "shall be made

according to merit and fitness to be ascertained,

as far as practicable, by examination which,

as far as practicable, shall be competitive."

The system here imposed negates the competitive

purpose of the written examination and, in the

absence of a showing of past discrimination,

is constitutionally suspect.

There is no precedent within the Second

Circuit for the broad, sweeping remedial relief

imposed by the District Court. In reviewing

its "limited" and "gingerly" use of quotas,

the Court, in Kirkland, observed that in each

case, “there was a clear cut pattern of long-

continued and egregious racial discrimination.

No such pattern of practice has been shown by

Respondents. "

In an equity case, the nature of the

violation determines the scope of the remedy.

Swann v. Charlotte-Mecklenburg Board of Edu-

cation, 402, U.S. 1, 16, 91 S. Ct. 1267, 28

L. Ed. 2d 545. There is, therefore, no basis

for justifying a remedy where there has been

no violation and no basis for justifying a remedy

substantially broader than that called for by

the violation.

=2in

When a District Court finds that discri-

minatory practices on the part of a union or

an employer have prejudiced minority workers,

it should frame its relief with an eye towards

remedying the wrong, see generally Albemarle

Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct.

2362, 45 L. Ed.2d 280 (1975), and should inter-

fere with the Defendant's operations no more

than is necessary to accomplish this result.

E. E. O. C. v. Local 638 . .. Local 28, Sheet

Metal Workers, 532 F2d 821, 829 (2d Cir. 1976);

Kirkland v. New York State Department of Cor-

rectional Services, 520 F.2d 420 (2d Cir. 1975).

A Court should not proceed to issue a broad

Sweeping remedial order without some evidence

before it as to the effect which the order will

have. E. E. 0. C. v. Local 14, International

Union of Operating Engineers, 533 F2d 251 (2d

Cir. 1977).

In some cases it may be unnecessary to

provide a full evidentiary hearing on relief

to a party that has fully participated in prior

=2Se

Stages of the proceeding. See United States

v. Wood, Wire and Metal-Lathers Local No. 46,

471 F2d 408, 415-16 (2d Cir.), cert. denied,

412 U.S. 939, 93 S.Ct. 2773, 37 L. Ed. 2d 398

(1973). However, where, as in the instant case,

the Petitioners have been barred from partici-

pation at all levels, a hearing on the relief

to be ordered is required.

The decision appealed from creates a

conflict of opinion within the Circuit Courts

of Appeal which should be settled by this Court.

In United States v. City of Chicago,, 549 F2d

415, 437 (7th Cir. 1977) the Court stated that

“preferrential numerical relief nevertheless

remains an extraordinary remedy, and its use

must be justified by the particular circumstances

of each case." The imposition of a racial

quota in United States v. City of Chicago,

Supra., occured only after specific findings

of discrimination were made after a seventeen

day hearing on requested preliminary relief

and a trial on the merits.

-26-

The rule has been equally well settled

in the Fifth Circuit. Before a Court can grant

any relief in a Title VII suit, it must find

that the Defendants engaged in the unlawful

employment practice alleged in the complaint.

42 U.S.C. §2000(e)-5(g); Myers v. Gilman Paper

Corp., 544 F2d 837 (5th Cir. 1977). In Myers,

the Court approved a Consent Decree containing

provisions for affirmative relief only after

fifteen months of motions and discovery and

a four day trial on the merits.

The issue thus narrows itself to the

legality of preferences and quotas in an affir-

mative action plan where there has been no

admission or judicial finding of past discri-

mination. This is an important Federal question

which has not been, but should be settled by

this Court.

@2 Fa

Ii!

THIS CASE MERITS REVIEW BY THIS COURT ON CERTIORARI

BECAUSE THE DECISION OF THE COURT OF APPEALS IS IN

CONFLICT WITH THIS COURT'S DECISION IN WASHINGTON

V. DAVIS, 427 U.S. 229, 48 L. Ed. 2d 597 96

S. Ct. 2040 (1976).

The case of Washington v. Davis, 427 U.S.

229, 48 L. Ed. 2d 597 96 S. Ct. 2040 (1976),

changes existing case law in the area of racial

discrimination in two significant respects.

The standard by which racial discrimination

cases under the Constitution are to be judged

is now one of intentional or invidious discri-

mination. Previously, as in Bridgeport Guardians

v. Members of the Bridgeport Civil Service

Commission, supra., Vulcan Society of the New

York City Fire Depart. v. Civil Service Commission

of the City of New York, supra., and Chance v.

Board of Examiners, 534 F2d 1933 (2nd Cir. 1975),

upon a showing of disproportionate racial

impact, the municipality or employer was put

to the burden of proving that the qualifying

examination was validated in terms of job perfor-

mance.

In Washington v. Davis, supra., the hiring

practices of the Police Department of the District

of Columbia were challenged as discriminatory

on the grounds that the personnel tests allegedly

excluded a disproportionately high percentage

of black applicants. The Court stated:

"We have difficulty understanding

how a law establishing a racially

neutral classification for employ-

ment is nevertheless discrimina-

tory and denies ‘any person equal

protection of the laws' simply

because a greater proportion of

Negroes fail to qualify than

members of other racial or ethnic

groups. (426 U.S. 245)

The result of Washington is that plaintiffs

alleging racial discrimination under the Consti-

tution must now prove that the municipality

or employer invidiously discriminated against

them.

At the time the Court entered the May 12,

1975 Consent Decree, the "test" of discrimina-

tion was identical in both Constitutional and

Title VII cases. Significantly, therefore, no

showing of invidious discrimination has ever

been made.

o29—

Moreover, recent decisions by the United

States Supreme Court seem to point in the direc-

tion of a uniform standard, such as the compel-

ling interest test, for all cases of alleged

discrimination. In Mc Donald v. Santa Fe Trail

Transporation Co., No. 75-260, slip. op. (June

25, 1976), the Court held that Title VII and

Section 1981 of Title 42 of the United States

Code prohibit discrimination against all races

on the same terms.

Classification by race is subject to strict

scrutiny at least where the classification

results in a detriment to a person because of

his race. In the case of such a racial classi-

fication, not only must the purpose of the

classification serve a "compelling state interest",

but it must be demonstrated by rigid scrutiny

that there are no reasonable ways to achieve

the States' goals by means which impose a lesser

limitation on the rights of the group disadvan-

taged by the racial classification. Bakke v.

Regents of the University of California, Sup.,

er Ce el

32 Cal. Rptr. 680, 690. In this case, there

has never been a showing that the affirmative

hiring plan is the least intrusive or even the

most effective means to ameliorate allegedly

past discriminatory hiring practices.

In Bakke, the Court struck down a special

admissions program which afforded a preference

on the basis of race to persons who were not

as qualified for the study of medicine as non-

minority applicants denied admission. The facts

in Bakke parallel the facts in this case. Since

no showing has been made of past discrimination,

what exists is a racial preference, for which

no compelling governmental interest has been

shown.

Ironically, the very system designed to

cure allegedly past discrimination invidiously

discriminates in reverse against non-minorities.

"No form of discrimination should be opposed

more vigorously than the quota system." Mc-

Williams, A Mask for Privilege (1948 p. 238.);

also see Associated General Contractors of

=Sho

California v. Department of Commerce, F2d

(1977), where a determination was made that

minority quota systems are “invidious and unconsti-

tutional".

Notwithstanding this Court's decision

in Washington v. Davis, supra., and the complete

lack of proof of past discrimination, the Honor-

able John T. Curtin effectively continued the

application of the invidious two list hiring

system by denying petitioners an opportunity

to be heard.

Part III of the Court's decision in

Washington v. Davis held that a written entrance

examination was validated when a positive rela-

tionship between the test and training course

performance was shown. In their Title VII cause

of action, plaintiffs in Howard alleged that

the written qualifying examination given and

administered by the Rochester Police Department

was insufficiently related to job performance.

Thus, in both Constitutional and Title

VII respects, the factual allegations contained

=

t nal bil en iM te

in the Howard complaint are invalid measurements

of racial discrimination according to present

Standards. The Consent Decree which grew out

of the Howard action, therefore, rests on an

insecure foundation.

In the interest of uniformity of judgments

and a clear settlement of the law in this con-

text, this Court should exercise its power of

supervision.

CONCLUSION

For the reasons above Stated, the petition

ANTELL, HARRIS & CALLERI

Attorneys for Petitioners

19 West Main Street, Suite 600

Rochester, New York 14614

(716) 325-6325

by law "to redress the deprivation, under

APPEND IX

color of any State law, statute, ordinance,

Constitutional Provisions, Statutes and Regulations

regulation, custom, or usage, of any right,

U.S. CONSTITUTION privilege, or immunity secured by the

1. Article XIV, §1 of the United States Constitution of the United States or by any

Constitution:

Act of Congress providing for equal rights

Citizenship defined; privileges of citizens -

of citizens or of all persons within the

All persons born-or naturalized in the

United States."

United States, and subject to the juris- F

3. 42 U.S.C. §1981:

diction thereof, are citizens of the United

All persons within the jurisdiction of the

States and of the State wherein they reside.

United States shall have the same right in

No State shall make or enforce any law

every State and Territory to make and enforce

which shall abridge the privileges or ;

contracts, to sue, be parties, give evidence,

immunities of citizens of the United States:

adie ihe a : and to the full and equal benefit of all

nor shall any State deprive any person of

laws and proceedings for the security of

life, libert or propert without due

Y» ewe persons and property as is enjoyed by white

rocess of law; nor deny to an erson

F 4 7? citizens, and shall be subjected to like

within its jurisdiction the equal protection

punishment, pains, penalties, taxes,

of the laws.

licenses and exactions of every kind, and

U.S. STATUTES to no other.

2. 28 U.S.C. §1343 (3) which provides for original 4. 42 U.S.C. §1983:

jurisdiction, without regard to the amount Every person who, under color of any

in controversy, of any civil action authorized

(1) to fail or refuse to hire or to

statute, ordinance, regulation, custon,

J discharge any indtvidual, or otherwise

or usage, of any State or Territory,

to discriminate against any individual

subjects or causes to be subjected, any

with respect to his compensation, terms,

citizen of the United States or other

conditions, o privileges of employment,

persons within the jurisdiction thereof

because of such individual's race,

to the deprivation of any rights, privileges,

color, religion, sex or national

or immunities secured by the Constitution

origin; or

and laws, shall be liable to the party

(2) to limit, separate, or classify his

injured in an action at law, suit in

employees or applicants for employment

equity or other property proceedings

in any way which would deprive or

for redress.

tend to deprive any individual of

5. 42 U.S.C. §2000d:

employment opportunities or otherwise

No person in the United States shall, on

adversely affect his status as an

the ground of race, color or national

employee, because of such individual's

origin, be excluded from participation in,

race, color, religion, sex or national

be denied the benefits of, or be subjected

origin.

to discrimination under any program or

7. 42 U.S.C. §2000d-2:

activity receiving Federal financial

It shall be an unlawful employment practice

assistance.

for any employer, labor organization, or

6. 42 U.S.C. §2000e et. seq. in pertinent part:

joint labor-management committee controlling

EN et ORR Fue

(a) It shall be an unlawful employment

‘ apprenticeship or other training or

practice for an employer

8.

9.

retraining, including on-the-job training

programs to discriminate against any

individual because of his race, color,

religion, sex, or national origin in

admission to, or employment in, any program

established to provide apprenticeship or

other training.

42 U.S.C. §2000e-5k:

In any action or proceeding under this

subchapter, the Court, in its discretion,

may allow the prevailing party, other than

the commission or the United States, a

reasonable attorney's fee as part of the

costs, and the commission and the United

States shall be liable for costs the same

as a private person.

FEDERAL REGULATIONS

28 C.F.R. §42.201 (a)-(b):

(a) The purpose of this subpart is to

enforce the provisions of the 14th

Amendment to the Constitution by

eliminating discrimination on the

grounds of race, color, creed, sex,

er national origin in the employment

practices of State agencies or offices

receiving financial assistance extended

by this Department.

(b) The regulations in this subpart apply

to the employment practices of

planning agencies, law enforcement

agencies, and other agencies or offices

of States or unites of general local

government administering, conducting,

or participating in any program or

activity receiving Federal financial

assistance extended Under Title I of

the Omnibus Crime Control and Safe

Streets Act of 1968 (the Act).

10. 28 C.F.R. §42.203:

No agency or office to which this subpart

applies under §42.201 shall discriminate

in its employment practices against

employees or applicants for employment

because of race, color, creed, sex or

national origin.

NEW YORK STATE CONSTITUTION

ll. Article I, §11:

No person shall be denied the equal

protection of the laws of this State or

any subdivision thereof.

12. Article V, §6:

Appointments and promotions in the Civil

Service of the State and of all the Civil

Divisions thereof, including cities RR,

Shall be made according to merit and fitness

to be ascertained, as far as practicable,

by examination, which, so far as

practicable, shall be competitive, ***,

CHARTER OF THE CITY OF ROCHESTER

13. §3-3 (A), (B), (Gc):

The charter of the City of Rochester provides

that the Defendant City Manager has the

following powers:

a. To see that all laws and ordinances

are enforced,

14,

b. To appoint and remoye the heads of

all departments the members of all

Board and all subordinate officers

and employees, except as otherwise

provided in this local law.

c. To execute deed and to enter into

contracts on behalf of the City,

except as may be otherwise provided

by law.

§8A-2:

The Charter of the City of Rochester

provides for the authority of the

Defendant, Chief of Police, as follows:

He shall appoint, with the approval

of the City Manager, the personnel

of all divisions under his

jurisdiction.

A-8

UNLTED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOHN E. HOWARD, GREGORY W. SCOTT,

JOHNNY L. SMITH, TOMAS VAZQUEZ,

JOHN WYCHE, HENRY ROUSE, ARCHIE

ROUSE, AFRO-AMERICAN POLICE ASS-

OCIATION, Individually and on

behalf of all other persons

Similarly situated,

Plaintiffs,

ELISHA FREEDMAN, CITY MANAGER OF

THE CITY OF ROCHESTER, NEW YORK,

THOMAS HASTINGS, CHIEF OF POLICE

OF THE CITY OF ROCHESTER POLICE

DEPARTMENT, MEMBERS OF THE COUNTY

OF MONROE CIVIL SERVICE COMMISSION,

EXECUTIVE DIRECTOR OF THE COUNTY

OF MONROE CIVIL SERVICE COMMISSION,

Defendants.

The parties hereto having entered into a

Stipulation for Settlement of the issues raised

in this action; and the Court having ordered that

notice of hearing on the advisability of the

settlement be given to the members of the class;

and the Court, after said notice and hearing,

having approved the terms of the said Stipulation

for Settlement,

- <7

PE POA? RET RI ere gn "o>

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED as follows:

1. All written examinations which the

Monroe County Civil Service Commission, its agents,

employees, and successors, hereinafter use to

determine eligibility for entry level positions

in the Rochester Police Department shall be

validated in accordance with the Equal Employment

Opportunity Commission's Guidelines on Employee

Selection Procedures, 29 C.F.R. §1607.

2. Until such time as twenty-five percent

(25%) of the Rochester Police Department's

officers are minority persons, defendants, their

agents, employees, and successors, shall make

appointments to the entry level position of police

officer in the following manner:

a. After each examination process, the

Monroe County Civil Service Committion,

its agents, employees, and successors,

shall establish an eligibility list of

qualified candidates which includes two

sublists:

(1) The first sublist shall consist of

all qualified minority canidates,

ranked in order of their relative

standing on said examination.

(2) The second sublist shall consist

of all qualified nonminority

candidates, ranked in order of

their relative standing on said

examination.

The City of Rochester shall make

appointments by selecting two persons

from the sublist of qualified minority

candidates for every three persons

selected from the sublist of qualified

nonminority candidates.

In the event that all names of persons ‘

on the sublist of qualified minority

candidates are exhausted, defendants,

their agents, employees, and successors,

Shall make no further appointments until

such time as an examination process is

conducted and new eligibility lists and

sublists are established, except that

upon the exhaustion of the first sub-

list, the City of Rochester may make

up to six appointments from the second

sublist, provided that upon the .

establishment of a new first sublist §

the first four appointments to the ;

Rochester Police Department thereafter |

Shall be made from said new first 4

Ny,

sublist, and thereafter appointments

shall be made in accordance with :

paragraph 2(b).

In the event the contingency specified

in paragraph 2(c) occurs, all the

persons remaining on the second sublist

Shall be given the option of submitting

to the new examination process or of

having their total score resulting from

the prior examination process carried

over and integrated into a new second

sublist by being ranked in order of

their relative standing with those

persons having taken the new examination

process. In no event shall a person be

carried over more than once, and in no

event shall any sublists be effective

for more than two years from the date of

its original establishment.

3. Until such time as twenty-five percent

(25%) of the Rochester Police Department's police

officers are minority persons, defendants, their

agents, employees, and successors, shall make

appointments to any and all training programs

including, but not limited to, the Police Cadet

Program, in the manner described in paragraphs

2(a) - 2(c) herein; provided that the thirteen

(13) individuals who were appointed to the Cadet

Program on February 20, 1975, shall be appointed

to the Rochester Police Department without

regard to the requirements of paragraphs 2(a) -

(c).

4. De°endants, their agents, employees,

and successors shall make appointments based on

the 1974 examination for police officer in the

manner described in paragraphs 2(a) - 2(c) herein.

5. Within one hundred and twenty (120)

days after entry of an order approving this

stipulation, the City of Rochester, its agents,

employees, and successors, after consultation with

plaintiffs' representatives, shall develop and

implement a program for recruitment of minority

persons for positions in the Rochester Police

Department. The City shall pay the reasonable

and necessary expenses of plaintiffs' consultant

for travel, accommodation, and meals for one week.

6. Defendants, their agents, employees, and

successors shall not reject a minority applicant

for a position as police officer in the Rochester

Police Department on the basis of a record of

arrest or conviction, a background investigation,

a psychological test and/or psychiatric interview

unless said applicant is informed in writing of

the specific reason(s) for the rejection and his

right to review. A decision to reject said

applicant on the basis of a background investigation,

psychological test and/or psychiatric interview

shall be subject to review if the applicant files

a written request with the Monroe County Civil

Service Commission within thirty (30) days after

B-5

iM a ee ee

mailing of the notice of rejection and his right

to review. The review shall be conducted by a

Review Panel comprised of a representative of the

Civil Service Commission, a representative of the

Rochester Police Department, and the Affirmative

Action Officer of the City of Rochester or his

representative.

7. Until such time as Cwenty-five percent

(25%) of the Rochester Police Department's

officers are minority persons, the Monroe County

Civil Service Commission, its agents, employees,

and successors shall file the following documents

with the Clerk of the United States District

Court for the Western District of New York on or

before June 1 of each year:

(a) the written examinations which are

used to determine eligibility for

a position of police officer; and

(b) the validation studies of the written

examinations described in paragraph

1; and

(c) an annual report describing:

(1) the number of nonminority and

minority applicants for the

position of police officer;

(2) the number of nonminority and

minority persons appointed to

the position of police officer;

(3) the number of nonminority and

minority persons who are

rejected at each step in the

selection process for the position

of police officer; and

(4) new selection procedures or devices.

8. The City of Rochester and the County

of Monroe shall each pay plaintiffs, John E.

Howard, Gregory W. Scott, Johnny L. Smith, Tomas

Vazquez, John Wyche, and Henry Rouse, the sum of

two hundred fifty dollars ($250.00) each upon

receipt from each plaintiff of a release in full

and complete satisfaction and settlement of any

and all claims of said plaintiffs arising from

defendants’ past employment practices relating

to employment of persons in the Rochester Police

Department.

9. The City of Rochester and the County

of Monroe shall each pay plaintiffs attorneys,

the Monroe County Legal Assistance Corporation,

the sum of three thousand dollars ($3,000.00) as

reimbursement for the costs and attorneys’ fees

for this litigation.

10. (a) The term "minority" as used herein

shall refer to a person who is black, Spanish-

surnamed, or a member of some other nonwhite

minority group. (b) The term "nonminority" as

used herein shall refer to a person who is not a

minority person as defined in paragraph 10(a).

ll. The hiring mechanism set forth in

paragraphs 2 and 3 is a temporary measure pursuant

to federal law designed to remedy the racially

disproportionate impact of prior employment

practices. The hiring mechanism set forth in

paragraphs 2 and 3 shall remain in effect only

until such time as twenty-five percent (25%) of

the Rochester Police Department's officers are

minority persons.

12. The United States District Court for

the Western District of New York shall continue

to have jurisdiction of this matter to entertain

an application by any party hereto, made upon

papers served upon the other parties hereto at least

10 days prior to the return date thereof, seeking

relief in the form of interpretation, application,

adjustment or termination of any of the terms of

this Stipulation on the grounds of inequity or

impracticability.

13. Immediately after the Court has made

and entered its order approving the terms of

this Stipulation, the parties hereto shall

join in an appropriate application to the New York

State Division of Human Rights to dismiss with

prejudice all proceedings pending before it

regarding the same subject matter brought by

any or all of the named plaintiffs herein.

14. This action is hereby dismissed with

prejudice to the named plaintiffs and the class

of persons consisting of all black, Spanish-

Surnamed, and other nonwhite persons who, prior

to the date of this Order have applied for

employment as a police officer in the Rochester

Police Department and have been rejected for any

reason at any step of the examination process.

Dated: May 12, 1975

S/ Harold P. Burke

UNITED STATES DISTRICT JUDGE

B-9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

RONALD PRATE, LEONARD LA ROSA,

PATRICIA PLUMERI, PATRICIA A.

DOYLE, THERESA YOUNG, TERRENCE

P. ANDERSON, MICHAEL A. DI

GIOVANNI, GARY GENNARINO,

MICHAEL C. KELLER, CHARLES J.

ZONA, JOSEPH P. TANTALO, MICHAEL

PERRY and SAMUEL T. GERMANO,

Plaintiffs

Civ-

“vs~ 76-418

ELISHA FREEDMAN, CITY MANAGER OF

THE CITY OF ROCHESTER, NEW YORK;

THOMAS HASTINGS, CHIEF OF POLICE

OF THE CITY OF ROCHESTER POLICE

DEPARTMENT; MEMBERS OF THE COUNTY

OF MONROE CIVIL SERVICE COMMISSION;

and EXECUTIVE DIRECTOR OF THE

COUNTY OF MONROE CIVIL SERVICE

COMMISSION,

Defendants

RONALD S. ZAVAGLIA, CAROL

TSCHIDERER and THOMAS A.

TSCHIDERER,

Plaintiffs

Ciy-

76-433

-V3s-

ELISHA FREEDMAN, CITY MANAGER OF ‘THE

CITY OF ROCHESTER, NEW YORK; THOMAS

HASTINGS, CHIEF OF POLICE OF THE

CITY OF ROCHESTER POLICE DEPARTMENT;

MEMBERS OF THE COUNTY OF MONROE CIVIL

SERVICE COMMISSION; AND EXECUTIVE

DIRECTOR OF THE COUNTY OF MONROE CIVIL

SERVICE COMMISSION,

Defendants

and

JOHN HOWARD, JOHN WYCHE and JOHNNY

SMITH,

Defendants-Intervenors.

APPEARANCES:

ANTELL, HARRIS & CALLERI (ANGELO

T. CALLERI, ESQ., of counsel),

Rochester, New York, for Plaintiffs

LOUIS N. KASH, ESQ., Corporation

Counsel of the City of Rochester

(EMIL J. KARCICH, ESQ., of counsel),

Rochester, New York, for defendants

Freedman & Hastings.

JOSEPH PILATO, ESQ., Deputy County

Attorney for defendants County of

Monroe Civil Service Commission and

Executive Director of the County of

Monroe Civil Service Commission.

DAAN BRAVEMAN, ESQ., Greater Up-State

Law Project, Rochester, New York,

and

——

MARIANNE ARTUSIO, ESQ., Monroe

County Legal Assistance Corporation,

Rochester, New York for Defendants-

Intervenors.

Plaintiffs have brought these consolidated

actions to seek compensatory and injunctive relief

for what they claim to be discrimination in the

recruiting, testing and hiring of applicants for

the position of police officer in the City of

Rochester, New York.

The Plaintiffs are white applicants for the

position of police officer who challenge these

practices as preferring black, Spanish-surnamed

and other non-white persons for such positions.

Defendants are public officials responsible

for hiring applicants for positions as police

officers in the Rochester Police Department.

Defendant-Intervenors are the named plaintiffs

in the lawsuit entitled John E. Howard, et al.

v. Elisha Freedman, et al., Civil Docket No.

74-234 (W.D.N.Y.). The consent decree approved

by Judge Harold P. Burke in the latter action

approved practices which are the subject of the

action.

C-3

A brief review of the history of the Howard

litigation and earlier developments in this suit

will place the present motion in perspective.

In 1974 John Howard and other plaintiffs commenced

an action under Title VII of the 1964 Civil Rights

Act, 42 U.S.C. §2000e et seq. against the very

defendants in this case. On the day trial was

to begin, the parties agreed to terms for

settlement. After a hearing Judge Burke entered

an order incorporating the terms of the settlement

agreement. The order provides for validation of

written examinations, a minority recruitment

program, a goal of 25% minority employment, and

a temporary appointment mechanism to reach the

hiring goal. Over a year later, a group of non-

minority applicants, including 14 of the 16

plaintiffs in this suit, moved to intervene and

reopen the Howard case on grounds of reverse

discrimination against non-minority individuals.

I found that motion to be untimely since the

plaintiffs had notice of the terms of the consent

decree but failed to act at that time. To reopen

that case would have caused undue delay and

hardship to the original parties. Howard y.

Freedman, Civy-74-234 (W.D.N.Y. June 22, 1976)

Subsequently the applicants for intervention

stipulated to a dismissal of their appeal to the

Second Circuit on October 22, 1976.

Plaintiffs filed the complaint in this

action with the court on September 17, 1976. A

motion for a preliminary injunction against the

appointment of successful police applicants to

the Police Academy was denied on October 20, 1976.

The action is currently before the court on

defendants' motion to dismiss under Fed.R.Civ.P.

12(b) for lack of subject matter jurisdiction

and failure to state a claim upon which relief

may be granted.

FEDERAL LAW CLAIMS

Defendants challenge the court's

jurisdiction in this action since it constitutes

a collateral attack on the final court order in

John E. Howard, et al. y. Elisha Freedman, et al,

Civil Docket No. 74-234 (W.D.N.Y. 1975). They

C-5

cite Oburn vy. Shapp, 393 F.Supp. 561 576 decision. To permit further challenge of the

(E.D.Pa. 1975), aff'd on other grounds, 521 F.2d A Howard consent decree would clearly violate the

142 (3d Cir. 1975), to establish that in a yoiicy under Title VII to promote settlement,

Oatis v. Crown Zellerbach Corp., 398 F.2d 496,

Similar case, a white police applicant's

challenge to affirmative hiring relief granted 498 Gth Cir. 1968). This would also result in

by court order to minority applicants was continued uncertainty for all parties involved

1/

impermissible. Furthermore, in Construction and render the concept of final judgments

Industry Combined Committee v. International meaningless. Cf. Class vy. Norton, 505 F.2d

Unions of Operating Engineers, 67 F.R.D. 664 123, 125 (2d Cir. 1974).

(E.D. Mo. 1975), the court would not permit Even if this court could assert jurisdiction

7 . . >

litigation of the merits of a Title VII consent over the subject matter, the complaint still fails

decree in a separate action. There the court to state a claim upon which relief may be granted.

noted that the proper avenue for relief would Time and again in the employment discrimination

have been a timely intervention in the original context, the courts have held that the Constitution

case does not bar remedial orders granting a limited

{ must follow the line of legal precedent preference to members of groups that have

previously been discriminated against. See Rios.

cited in Oburn and Construction Industry. This

suit constitutes an impermissible collateral v. Enterprise Association Steamfitters Local 638,

501 F.2d 622, 628-630 (2d Cir. 1974); see also

attack on Judge Burke's ruling in Howard. The

E.E.0.C. v. AT&T Co., 419 F.Supp. 1022, 1044-45

plaintiffs in this case should properly have

sought timely intervention in the Howard case, but (E.D.Pa. 1976). The cases cited by plaintiffs

failed to do so as ruled in my June 22, 1976 . are distinguishable from this case since they

do not involve entry leyels goals. see, e.g.,

Chance v. Board of Examiners, 534 F.2d 993 (2d

Cir. 1976); McDonald y. Santa Fe Trail Trans-

portation Co., 427 U.S. 273 (1976). Therefore,

no legal challenge may be mounted by this action

against the limited use of preferences approved

in the Howard decree.

Defendants also argue that dismissal is

warranted because the plaintiffs have failed to

comply with the jurisdictional prerequisite of

filing a complaint with the Equal Employment

Opportunity Commission and exhausting their

administrative remedies. Since I believe that

the suit may be dismissed as an improper collateral

attack, I do not find it necessary to rule on this

ground.

STATE LAW CLAIMS

In their complaints plaintiffs also assert

that defendants’ conduct violates the New York

State Constitution. Defendants argue that this

court should not take pendent jurisdiction over

the state claim or, in the alternative, that

C-8

these allegations should be dismissed for failure

to state a claim upon which relief may be granted.

Since the court cannot assert subject

matter jurisdiction over the plaintiffs' federal

law action, it must also forego jurisdiction of

the pendent state law claims. See United Mine

Workers v. Gibbs, 383 U.S. 715, 726 (1965).

Furthermore, the practices which the

piaintiffs challenge were properly established

by Judge Burke in the Howard consent decree.

Since that remedy was imposed pursuant to Title

VII, it suspends the application of conflicting

state law. U.S. Const. art.VI, cl.2; see also

Louisiana v. United States, 380 U.S. 145 (1965);

Carter v. Gallagher, 452 F.2d 315, 328 (8th Cir.

1971), cert. denied, 406 U.S. 950 (1972).

Therefore, the plaintiffs' complaint must also

be dismissed as to claims grounded in state law

since they fail to state a claim upon which relief

may be granted.

The Clerk is directed to enter Judgment

dismissing plaintiffs' complaint.

ATTORNEY FEES

Defendants-Intervenors have moved to

recover reasonable attorney fees and costs

incurred in this suit. Under 42 U.S.C. §2000e-5 (Kk),

the court has discretion to award a reasonable

attorney fee to the prevailing party in a Title

VII action. The Second Circuit has ruled that a

prevailing defendant should be permitted such fees

only where the action brought is found to be

"unreasonable, meritless or vexatious." Carrion

v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976).

In this action the plaintiffs have brought

claims which are virtually identical to those

asserted in their prior unsuccessful motion to

intervene in the Howard litigation. Furthermore,

this attack on the Howard order has been brought

despite the body of case law in this and other

Circuits which rejects such claims. Based upon

these considerations, this suit may be considered

unreasonable and vexatious. Defendants-Intervenors

are therefore directed to submit an affidavit to

the court detailing their attorney fees in this

C-10

action. Plaintiffs may also file an affidavit

in opposition to the motion for attorney fees.

These affidavits shall be filed not later than

May 23, 1977. A hearing on defendants' application

Shall be held on June 17, 1977 at 9:00 a.n.

So ordered.

S/ John T. Curtin

JOHN T. CURTIN

United States District Judge

DATED: May 3, 1977

1/

Since the ruling Judge Green has, in a

separate decision, dismissed the complaint in

Oburn. He found the claim of reverse discrimination

to be an improper collateral attack over which he

could not assert subject matter jurisdiction. See

Oburn v. Shapp, 70 F.R.D. 549 (E.D.Pa. 1976) aff'd

546 F.2d 418 (3rd Cir. 1976), cert. denied, 45

U.S.L.W. 3688 (April 19, 1977).

C-1l

7

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated Term of the United States

Court of Appeals for the Second Circuit, held

at the United States Courthouse in the City of

New York, on the twentieth day of October one

thousand nine hundred and seventy-seven.

Present:

HON. STERRY R. WATERMAN

HON. WILLIAM H. MULLIGAN

HON. WILLIAM H. TIMBERS

Circuit Judges, 77-7253

Ronald Prate, Leonard LaRosa, Patricia Plumeri,

Patricia A. Doyle, Theresa Young, Terrence P.

Anderson, Michael A. DiGiovanni, Gary Gennarino,

Michael C. Keller, Charles J. Zona, Joseph P.

Tantalo, Michael Perry and Samuel T. Germano,

Plaintiffs-Appellants,

Vv.

Elisha Freedman, City Manager of the City of

Rochester, New York, Thomas Hastings, Chief of

Police of the City of Rochester Police Department,

Members of the County of Monroe Civil Service

Commission, and Executive Director of the County

of Monroe Civil Service Commission,

ihabaeiiiaeiiieainaanea danas De fendants-Interveners-Appellees, __

Ronald S. Zavaglia, Carol Tschiderer, and Thomas

A. Tschiderer,

Plaintiffs-Appellants,

v.

Elisha Freedman, City Manager of the City of

Rochester, New York, Thomas Hastings, Chief of

Police of the City of Rochester Police Department,

Members of the County of Monroe Civil Service

Commission, and Executive Director of the County

of Monroe Civil Service Commission,

De fendant-Appellees,

John Howard, Johnny L. Smith, and Jom Wyche,

Defendants~—Intervenors—Appellees.

Appeal from the United States District

Court for the Western District of New York.

This cause came on to be heard on the

transcript of record from the United States

District Court for the Western District of New

York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the order and

judgment of said District Court be and they hereby

are affirmed with costs to be taxed against the

appellant. A. DANIEL FUSARO, Clerk

By ARTHUR HELLER, Deputy

Clerk