Chance v. Board of Examiners & the Board of Education

534 F.2d 993

• Court: Court of Appeals for the Second Circuit
• Decided: January 19, 1976
• Docket: Nos. 1112, 1251, Dockets 75-7161—75-7164
• Status: Published

Opinions

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York which directed the Board of Education of the City of New York to “excess” supervisory personnel in accordance with a formula imposing racial quotas upon the excessing process. Excessing rules provide in brief that when a position in a school district is eliminated, the least senior person in the job classification used to fill that position shall be transferred, demoted or terminated. It is a system which recognizes the value of pedagogical experience and seniority, and its use is mandated by the New York Education Law¹ and the Collective Bargaining Agreement between the Board of Education and the supervisors’ union.² We believe that the District Court erred in injecting into this plan a requirement for conformity to a racial quota formula, and we therefore reverse.

Fortunately for both reader and writer, we find it unnecessary to recount at length the history of this extended litigation. A summary of the proceedings which now bring the parties to our Court for the fourth time³ will suffice.

This civil rights class action was begun in 1970 for the purpose of correcting an under-representation of minorities in supervisory positions in the New York City school system. Employment qualification tests, one of the alleged causes of such disproportion, were thereafter invalidated by the District Court as not job-related; and an interim system' of job assignment was created by court order, the details of which are spelled out in our 1974 decision. Because this interim plan provided in part that job assignment would precede licensing and that permanent appointment would follow on-the-job evaluation, it became necessary for the Board of Education to formulate new rules concerning date of appointment for excessing purposes. These rules, which were submitted to the District Court for approval, provided in substance that, in determining seniority for excessing purposes, supervisors would be considered appointed as of the date of their assignment.

As Judge Tyler graphically pointed out during one of the many arguments below, this lawsuit has been “like a conflagration that one puts out in one department and then suddenly a new fire breaks out somewhere else.” It was not surprising, therefore, that this submission by the Board set new flames burning. Plaintiffs promptly opposed the use of any excessing rules on the ground that minority supervisors recently hired would have the least seniority. This prompted intervention by the Council of Supervisors and Administrators of the City of New York, Local 1, SASCO, AFL-CIO as the representative of all supervisory personnel, including those licensed and appointed prior to the court-ordered interim plan, those licensed and appointed pursuant to such plan and those assigned but not yet appointed. This Union opposed the use of racial quotas and supported the continued use of traditional ex-cessing procedures. Amicus briefs were also filed by the New York City School Boards Association, Inc. whose interest lay in seeing that the powers and prerogatives of the thirty-two school districts within the New York system were not eroded by the court-created excessing plan.

Proposals and counterproposals followed closely upon each other until Judge Tyler handed down an order on November 22, 1974, adopting the racial quota concept. This order was amended on February 7, 1975, and it is the amended order which we are reviewing on this appeal. It provides in substance as follows:

1. All supervisors are to be divided into three groups: group A — Blacks, group B — Puerto Ricans and group C — Others;

2. The percentage of supervisors making up each group is to be computed for each of the thirty-two districts and for the city-wide system;

3. Each district may place supervisors from group A or B on its intra-district excessing list only if the percentage of that group on the list does not exceed the percentage of that group in the district;

4. Each district may add excessed supervisors from group A or B to the citywide, inter-district excessing list only if the percentage of that group on the list does not exceed the percentage of that group employed city-wide.

Although the order does not specifically so provide, the inevitable consequence of the foregoing provisions is that if racial quotas prevent the excessing of a Black or Puerto Rican, a white person with greater seniority must be excessed in his place.

Before the merits of the appeals taken by the Board of Education and the Council of Supervisors can be considered, several preliminary roadblocks raised by plaintiffs must first be removed. Plaintiffs contend that the appeals are not timely. They say that the order of February 7, 1975, merely clarified the order of November 22, 1974, and that therefore appeals should have been taken from the former, not the latter. We find no merit in this contention. Following the issuance of the November 22 order, the Board of Education requested a modification “concerning excessing.” A hearing was held, and some modifications were made. We think that the Board’s application, addressed sufficiently to the substance of the November order to require a contested rehearing, effectively transferred the mantle of finality from the November to the February order and that appeals from the latter order were therefore timely. Leishman v. Associated Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714 (1943); Sleek v. J. C. Penney Co., 292 F.2d 256 (3d Cir. 1961).

Plaintiffs also point out that the order appealed from will be in effect only until November 30, 1977, by which time “it is hoped” the situation regarding minority representation will have changed. Plaintiffs urge that we not concern ourselves, as an appellate court, with this short-term interim relief. In our 1974 decision, at page 825, we expressed concern about the length of time this litigation had remained in an unfinished state and the possibility that “the interim tail” would end up wagging the dog. Another year has passed; the lawsuit has not been terminated, and new orders continue to emerge. Those supervisors who may lose their jobs between now and November 30, 1977, will be little comforted by the knowledge that it was merely a temporary order that put them out of work. Where the basic rights of such innocent non-litigants are so substantially involved, we believe we should, as we have twice before, review what has been done.

We thus come to the main question on this appeal, viz.: does a facially neutral excessing plan, which operates on the concept of “last hired-first fired,” discriminate against minorities who are disproportionately affected? We agree with the Courts of Appeals for the Third, Fifth and Seventh Circuits that the answer to this question must be “no.” See Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309 (7th Cir. 1974), petition for cert. filed, 44 U.S.L.W. 3011 (Apr. 25, 1975); Jersey Central Power and Light Co. v. Local Union, 327, I.B.E.W., 508 F.2d 687 (3d Cir. 1975), petitions for cert. filed, 44 U.S.L.W. 3084 (Aug. 1, 1975), 44 U.S.L.W. 3207 (Sept. 24, 1975); Watkins v. Steel Workers Local No. 2369, 516 F.2d 41 (5th Cir. 1975).

Our brothers in the Third and Seventh Circuits have examined the legislative history of Title VII,⁴ and they are in aécord that this Act was not intended to invalidate bona fide seniority systems. Waters, supra, 502 F.2d at 1318; Jersey Central, supra, 508 F.2d at 710. Our brothers in the Fifth Circuit say that “regardless of what that history may show as to Congressional intent concerning the validity of seniority systems as applied to persons who have themselves suffered from discrimination, there was an express intent to preserve contractual rights of seniority as between whites and persons who had not suffered any effects of discrimination.” Watkins, supra, 516 F.2d at 48. All agree, as do we, that the non-remedial distortion of a seniority system through preferential treatment based solely upon race is a form of reverse discrimination specifically proscribed by Congress. Jersey Central, supra, 508 F.2d at 709; Waters, supra, 502 F.2d at 1319; Watkins, supra, 516 F.2d at 46. See also Local 189, United Papermakers v. United States, 416 F.2d 980, 994 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970).

That plaintiffs herein are proceeding under 42 U.S.C. §§ 1981, 1983 does not render defendants’ seniority system any more susceptible to attack. Congress has clearly placed its stamp of approval upon seniority systems in 42 U.S.C. § 2000e-2.⁵ Whether this section be considered a repeal by implication of any possible contrary construction of § 1981, or simply a statement of guiding legal principles, we agree with the court in Waters that “having passed scrutiny under the substantive requirements of Title VII, the employment seniority system ... is not violative of 42 U.S.C. § 1981.” Waters, supra, 502 F.2d at 1320, n. 4.

The relief fashioned by the court below was not designed to benefit only those affected by the employer’s prior discriminatory conduct⁶ or to insure that the excessing program operated in a non-discriminatory manner. It was intended to insure that there would continue to be a specified quota of Blacks and Puerto Ricans employed in the New York City school system. Our limited approval of the use of racial hiring quotas in such cases as Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973), and Vulcan Society of the New York City Fire Department, Inc. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973), is not authority for what the district court has done. We were concerned in those cases with discriminatory hiring practices, and the remedial relief which we approved concerned only hiring procedures. Because there is no claim that defendants’ excessing practices are or have been discriminatory, we see no justification for changing them.

Moreover, the concern which we expressed in Kirkland v. New York State Department of Correctional Services, 520 F.2d 420 (2d Cir. 1975), about the “bumping” effect of a quota “upon a small number of readily identifiable” individuals finds equal cause for expression in the situation which now confronts us. We are advised that in some of the school districts employees will be excessed from groups containing as few as two or three persons. To require a senior, experienced white member of such a group to stand aside and forego the seniority benefits guaranteed him by the New York Education Law and his union contract, solely because a younger, less experienced member is Black or Puerto Rican is constitutionally forbidden reverse discrimination.⁷ Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 209, 65 S.Ct. 226, 89 L.Ed. 173 (1944) (Murphy, J., concurring); Kirkland, supra, 520 F.2d at 429.

If a minority worker has been kept from his rightful place on the seniority list by his inability to pass a discriminatory examination, he may, in some instances, be entitled to preferential treatment — not because he is Black, but because, and only to the extent that, he has been discriminated against. The “freedom now” and “rightful place” doctrines create constructive or fictional seniority to put minority employees in the approximate spot on the seniority list that they would have occupied had they not been the subject of discrimination. Local 189, United Papermakers v. United States, supra, 416 F.2d at 988. The former contemplates the displacement of white workers where necessary; the latter involves only the filling of vacancies. We have followed the “rightful place” doctrine to the extent of using plant seniority, instead of departmental seniority, where departmental discrimination has prevented or delayed the transfer of minority workers. United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971).⁸

There is disagreement among the Circuits as to how far these concepts should be carried in creating fictional dates of employment for minority workers. Cf. Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), cert. granted, 419 U.S. 1050, 95 S.Ct. 625, 42 L.Ed.2d 644 (1975), argued November 3, 1975, 44 U.S.L.W. 3273; Meadows v. Ford Motor Company, 510 F.2d 939 (6th Cir. 1975). Upon remand of this case, the District Court may find it unnecessary to await resolution of this dispute by the Supreme Court. The defendant Board of Education has indicated its willingness to accord constructive seniority to any minority supervisor who failed an examination since invalidated as discriminatory by giving him a date of appointment which is the mean appointment date of those who passed the examination. We believe this offer of compromise which appears to be acceptable to the intervening Union should have been adopted by the District Court.

A reversal of the order appealed from renders moot the controversy between the Board of Education and the community districts as to whether intra-district as well as inter-district racial quotas should be used and applied in the excessing process. We note that the New York Court of Appeals has specifically held that the Board of Education has the power to establish uniform City-wide excessing rules. Council of Supervisors and Administrators v. Board of Education, 35 N.Y.2d 861, 363 N.Y.S.2d 581, 322 N.E.2d 273 (1974) (mem.). Should the question of excessing authority vis-a-vis the community districts and the Board of Education again arise in this proceeding, we trust that the District Court will defer to the New York State courts’ primary concern and expertise in this matter, in so far as it is feasible to do so.

Reversed and remanded for further proceedings in accordance with this opinion.

1 . Section 2585 of the Education Law (McKinney 1970) provides in pertinent part as follows:

2. If a board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.

3. Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.

4. In a city having a population of one million or more, no member of the teaching or supervising staff who has been regularly appointed in accordance with merit and fitness, determined by competitive examination, shall be dismissed upon the abolishment of his position if:

a. The superintendent of schools, upon the recommendation of the board of examiners, certifies to the board of education that such member is competent to serve in any vacant position in the same rank or level or in a lower rank or level of service with such board; and

b. The superintendent of schools, upon direction of the board of education, assigns such member to any such vacant position, in which event such member so assigned shall serve in such position without reduction of salary.

5. If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. The persons on such preferred list shall be reinstated or appointed to such corresponding or similar positions in the order of their length of service in the system.

2 . The Collective Bargaining Agreement contains a set of detailed excessing rules. In addition, it provides that the “provisions of law” will be followed in all City-wide excessing situations.

3 . See Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Chance v. Board of Examiners, 496 F.2d 820 (2d Cir. 1974). On May 15, 1974, this Court dismissed a third appeal without opinion. Chance v. Board of Examiners, 497 F.2d 919 (2d Cir. 1974).

4 . 42 U.S.C. § 2000e et seq.

5 . 42 U.S.C. § 2000e-2(h) provides in pertinent part that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . ..”

6 . Plaintiffs concede that only a small percentage of the minority supervisors appointed since the inception of this litigation failed the examinations found to be discriminatory, and there is no showing as to how many were even eligible to take such examinations.

7 . The discriminatory effects of such conduct would be even more apparent if the senior member were female and thus entitled to the same protection against discharge under § 2000e-2 as a Black. Indeed, if the quota system is proper, the day is not far away when women will seek its assistance in displacing minority workers.

8 . In Bethlehem Steel, we authorized the use of plant seniority only for the purpose of filling vacancies and not to “bump” white workers. We said, at 446 F.2d 661: “Both groups will bid against each other for vacancies on the basis of plant-wide seniority; an earlier hired white employee will have greater seniority than a later-hired black.”