# Petition — Prate v. Freedman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 922

## Text

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 |

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0354%3A1. Public record. Not legal advice.