| Margerum v City of Buffalo |
| 2009 NY Slip Op 04506 [63 AD3d 1574] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Eugene Margerum et al., Respondents, v City of Buffalo et al.,Appellants. |
—[*1] Chiacchia & Fleming, LLP, Hamburg (Christen Archer Pierrot of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), enteredSeptember 10, 2007. The order, inter alia, granted the cross motion of plaintiffs for partialsummary judgment on liability.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the cross motion and as modified the order is affirmed without costs.
Memorandum: Plaintiffs, 13 firefighters employed by defendant City of Buffalo Departmentof Fire (Fire Department), commenced this action alleging that defendants discriminated againstthem by allowing promotional eligibility lists created pursuant to the Civil Service Law to expiresolely on the ground that plaintiffs, who were next in line for promotion, were Caucasian.Plaintiffs asserted causes of action based on the Human Rights Law (Executive Law art 15), theNew York Constitution and the Civil Service Law. Before answering the complaint, defendantsmoved to dismiss it or, alternatively, to stay the action, and plaintiffs cross-moved for partialsummary judgment on liability. We agree with defendants that Supreme Court erred in grantingplaintiffs' cross motion but further conclude that the court properly denied defendants' motion.We therefore modify the order accordingly.
This action is one of a number of actions concerning the promotion of firefighters in the FireDepartment, and it is helpful to review those prior actions in order to place this action in context.In 1980 the United States Court of Appeals for the Second Circuit determined, inter alia, that thedefendant City of Buffalo (City) and the defendant Fire Department had discriminated againstAfrican-Americans, Hispanics and women (United States v City of Buffalo, 633 F2d 643[1980], modfg 457 F Supp 612 [1978]). The "Final Decree and Order" dated November23, 1979 that was issued by the District Court in that action prohibited the City and the FireDepartment from engaging in [*2]any act or practice with respectto, inter alia, hiring or promotion "which has the purpose or effect of discriminating against anyemployee or future employee . . . because of such individual's race" (UnitedStates v City of Buffalo, 721 F Supp 463, 464 n 1 [1989], affd 993 F2d 1533[1993]).
Following civil service examinations in 1998 and 2002, eligibility lists for varioussupervisory positions within the Fire Department were created. Based on the statisticaldisparities placing minorities at a disadvantage, Men of Color Helping All Society, Inc.(MOCHA), an organization of African-American firefighters employed by the Fire Department,commenced two actions in federal court alleging that the respective civil service examinationsfor the position of lieutenant were discriminatory with respect to African-Americans. "MOCHAI" challenged the 1998 examination, and "MOCHA II" challenged the 2002 examination.
In 2005 defendant Leonard Matarese, Commissioner of Human Resources for the City,allowed the eligibility lists for all supervisory positions within the Fire Department generatedfrom the 2002 examinations to expire without granting a third one-year extension. Because all ofthe lists were generated from examinations developed at the same time and in the same manneras the examination for the position of lieutenant, Matarese believed that all of the lists weresuspect. Plaintiffs are those nonminority candidates who were "next in line" for promotion on theexpired lists, some of whom had been recommended for promotion before the lists were allowedto expire. In 2006 the Buffalo Professional Firefighters Association, Inc., Local 282, IAFF,AFL-CIO (Union) and all of the plaintiffs in this action, with the exception of Peter Kertzie,commenced two CPLR article 78 proceedings. In those proceedings, which were consolidatedfor appeal, the petitioners contended that the determination to allow the lists to expire wasarbitrary and capricious and made in bad faith (Matter of Hynes v City of Buffalo, 52 AD3d 1216 [2008]). Thepetitioners further contended that the respondents should be compelled to make permanentvarious promotions that had been recommended before the lists were allowed to expire. Also in2006, the Union filed grievances against the City, contending that the City violated the collectivebargaining agreement when it failed to make a particular provisional appointment and otherrecommended promotions permanent.
Supreme Court, in December 2006, denied those parts of the petitions that challenged thedetermination to allow the lists to expire and the failure to make certain proposed appointmentspermanent. In January 2007, the arbitrator denied the Union's grievances, finding that the Citydid not violate the collective bargaining agreement in failing to make provisional appointmentspermanent or in failing to fill vacancies before the expiration of promotional "eligible lists."
In February 2007, while the appeals from the judgments in the consolidated CPLR article 78proceedings were pending, plaintiffs commenced this action, contending that the determinationto allow the eligibility lists to expire amounted to racial discrimination against plaintiffs. In July2008, this Court affirmed in part the CPLR article 78 judgments on the ground that thedetermination "to permit the eligibility lists at issue to expire was not arbitrary, nor was it madein bad faith" (Hynes, 52 AD3d at 1217). On March 9, 2009, the District Court for theWestern District of New York (John T. Curtin, J.) issued an order in MOCHA I concluding aftera trial that, despite the disparate impact of the 1998 lieutenant examination, that examination"was developed . . . in a manner that is significantly correlated with importantelements of work behavior which are relevant to the position . . . [and thus that] theCity ha[d] met its burden of demonstrating that the Exam [was] job-related for the position andconsistent with business necessity" (M.O.C.H.A. Socy., Inc. v City of Buffalo, 2009 WL604898, *18, 2009 US Dist LEXIS 20070, *55-56 [2009]). Because the MOCHA I plaintiffsfailed to establish "that other tests or devices were available for selection," the District Courtdismissed the second amended complaint "to the extent it seeks relief under Title VII [of theCivil Rights Act of 1964] based on the City of Buffalo's use of the results of the 1998Lieutenant's Exam to promote Buffalo firefighters to the rank of lieutenant" (2009 WL 604898 at*18, 2009 US Dist LEXIS 20070 at *56).[*3]
On this appeal from the order that, inter alia, grantedplaintiffs' cross motion for partial summary judgment on liability on the complaint, defendantscontend that plaintiffs' reverse discrimination allegations do not state a cause of action and that,even assuming, arguendo, that a strict scrutiny standard applies, we should conclude thatdefendants' conduct meets that standard and dismiss the complaint.
We agree with plaintiffs that the proper standard by which to measure defendants' conduct isthat of strict scrutiny. The United States Supreme Court has repeatedly written that "all'governmental action based on race—a group classification long recognized as inmost circumstances irrelevant and therefore prohibited—should be subjected to detailedjudicial inquiry to ensure that the personal right to equal protection of the laws has notbeen infringed' " (Grutter v Bollinger, 539 US 306, 326 [2003], reh denied 539US 982 [2003], quoting Adarand Constructors, Inc. v Pena, 515 US 200, 227 [1995]).The Supreme Court has also held that " '[r]acial and ethnic distinctions of any sort are inherentlysuspect and thus call for the most exacting judicial examination' " (Adarand Constructors,Inc., 515 US at 218, quoting Regents of Univ. of Cal. v Bakke, 438 US 265, 291[1978]). In short, "[a]lthough all governmental uses of race are subject to strict scrutiny, not allare invalidated by it" (Grutter, 539 US at 326-327). Under the strict scrutiny standard,governmental actions based on race are constitutional "only if they are narrowly tailored tofurther compelling governmental interests" (id. at 326). "When race-based action isnecessary to further a compelling governmental interest, such action does not violate theconstitutional guarantee of equal protection so long as the narrow-tailoring requirement is alsosatisfied" (id. at 327).
On this record there can be no dispute that the determination to allow the eligibility lists toexpire was made because those next in line for promotion were Caucasian and, in view of theongoing discrimination actions in federal court, defendants wanted to avoid the furtherappointment of Caucasians. Thus, the governmental action being challenged was based on racialdistinctions and should be subjected to the " 'most exacting judicial examination' " (AdarandConstructors, Inc., 515 US at 218).
In contending that the strict scrutiny standard does not apply, defendants rely on Haydenv County of Nassau (180 F3d 42 [1999]). We conclude that their reliance on Haydenis misplaced. In that case, the plaintiffs were challenging the police department's act in designingrace-neutral entrance examinations, and the Second Circuit concluded that "race-neutral effortsto address and rectify the racially disproportionate effects of an entrance examination do notdiscriminate against non-minorities" (id. at 54). In this case, defendants' actions were notrace-neutral. Rather, defendants' determination to allow the lists to expire was made " 'becauseof' " the race of those individuals who were next in line for promotion (id. at 51).
Defendants also rely on a second decision of the Second Circuit, that of Ricci vDeStefano (554 F Supp 2d 142 [2006], affd for reasons stated 530 F3d 87 [2008],reh en banc denied 530 F3d 88 [2008], cert granted 555 US —, 129 S Ct894 [2009]), to support their contention that the strict scrutiny standard does not apply. In ourview, the implications of Ricci are not clear. In that case, the New Haven Civil ServiceBoard refused to certify the results of two promotional examinations upon learning of thedisparate impact that those examinations had on minorities (Ricci, 554 F Supp 2d at145-146). Although the District Court recognized that the refusal to certify the results of theexaminations was a race-conscious decision, the court concluded that the remedy wasrace-neutral (id. at 158). The court determined that there was no "facial classificationbased on race" (id. at 161), and it dismissed the complaint. Although the Second Circuitaffirmed for the reasons stated, it then denied a rehearing en banc by only a majority of seven tosix (530 F3d 88 [2008]). The six dissenting judges voted to grant a rehearing to address, interalia, an "important question[ ] of first impression in [the Second] Circuit [:] . . .May a municipal employer disregard the results of a qualifying examination, which wascarefully constructed to ensure race-neutrality, on the ground that the results of that examinationyielded too many qualified applicants of one race and not [*4]enough of another?" (Ricci, 530 F3d 88, 93-94 [2008,Cabranes, J., dissenting]). In distinguishing Hayden, Judge Cabranes in his dissent notedthat "[n]eutral administration and scoring—even against the backdrop of race consciousdesign of an employment examination . . . is one thing. But neutraladministration and scoring that is followed by race-based treatment of examination results issurely something else entirely" (id. at 98).
Although the underlying facts of Ricci are similar to the facts of this case, weultimately conclude that Ricci is distinguishable from this case and thus that defendantsmistakenly rely upon it. In Ricci the examination results were discarded before anyappointments were made and without any consideration of those who would have been next inline for promotion. In this case, however, the examination results were certified, eligibility listswere created and promotions were made for three years before the determination was made toallow the promotional eligibility lists to expire. In other words, the determination in this casewas in fact made based on the race of those next in line for promotion.
We conclude, however, that plaintiffs were not entitled to partial summary judgment onliability. First, plaintiffs failed to establish the absence of a compelling interest. Indeed, "asufficiently serious claim of discrimination" may constitute a compelling interest to engage inrace-conscious remedial action (Bushey v New York State Civ. Serv. Commn., 733 F2d220, 228 [1984], cert denied 469 US 1117 [1985], reh denied 470 US 1024[1985]). Second, plaintiffs submitted no evidence to establish that defendants' actions were notnarrowly tailored to meet the allegedly compelling interest. Thus "the record is insufficient todetermine whether [defendants'] plan trammeled the interests of the nonminority [plaintiffs]. . . [and] a full exploration of this disputed issue" is warranted (Bushey,733 F2d at 229). For that same reason, the court properly denied defendants' motion to dismissthe complaint. We reject defendants' contention that plaintiffs failed to state a cause of action,thus warranting dismissal of the complaint. "[I]n determining whether to dismiss a complaint forfailure to state a cause of action, the court must accept all of the allegations in the complaint astrue . . . The 'sole criterion is whether the pleading states a cause of action, and iffrom its four corners factual allegations are discerned which taken together manifest any cause ofaction cognizable at law a motion for dismissal will fail' " (Meyer v Stout, 45 AD3d 1445, 1446 [2007], quotingGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The facts alleged in thecomplaint, when accepted as true, state a viable cause of action.
We also reject the contention of defendants that plaintiffs were required to file a notice ofclaim before commencing this action and thus that the complaint should be dismissed based onplaintiffs' failure to do so (see Picciano v Nassau County Civ. Serv. Commn., 290 AD2d164, 170 [2001]; Sebastian v New York City Health & Hosps. Corp., 221 AD2d 294[1995]; cf. Grasso v SchenectadyCounty Pub. Lib., 30 AD3d 814, 816-817 [2006]; Mendell v Salamanca Hous. Auth., 12 AD3d 1023 [2004]).Contrary to defendants' further contention, plaintiffs' action is not barred by the doctrines of resjudicata or collateral estoppel. In the prior CPLR article 78 proceedings plaintiffs could not havesought the relief they seek in this action (see generally Parker v Blauvelt Volunteer FireCo., 93 NY2d 343, 348-349 [1999]), nor were the issues raised in this action either raised ornecessarily decided in the prior proceedings (see generally Buechel v Bain, 97 NY2d295, 303-304 [2001], cert denied 535 US 1096 [2002]).
Based on our determination with respect to plaintiffs' cross motion, we see no need toaddress defendants' remaining contention concerning the relief being sought by plaintiffs.Present—Hurlbutt, J.P., Martoche, Centra, Pine and Gorski, JJ.