OPINION and ORDER
STANTON, District Judge.
Leslie Berl and Frederick L. Anderson, Sr., both male correction officers, bring this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983") against Westchester County ("County"), alleging that the County failed to promote them to sergeant because of their gender. Plaintiffs seek promotion to sergeant, back pay and benefits, attorney's fees, and compensatory damages.
By agreement of the parties, the trial of this action was submitted upon the joint pre-trial order and 41 stipulated exhibits.
Plaintiffs Berl and Anderson are employed as correction officers at the Westchester correctional facility in Valhalla, New York, which is divided into Male and Female Units. Plaintiffs have received satisfactory job evaluations (Exhs. 6, 10, 11, 32) and have never been charged with disciplinary violations.
In April, 1980 plaintiffs took promotional Civil Service examination 70-338 ("70-338") for the position of correction-officer sergeant ("sergeant"). Each plaintiff passed the exam with a score of 86 and received an additional point for service longevity. Each plaintiff had a final score of 87, which was higher than any score received by a female correction officer, although some male officers received higher scores, thus deferring the time plaintiffs would be reached on the male list.
Pursuant to N.Y. Civil Service Law § 61(1) only those persons whose scores are among the top three (plus ties) remaining on the list at the time the promotion becomes available are eligible for promotion. It was not until May 21, 1984 that plaintiffs' names were "reachable" as among the top three male candidates then remaining on the list for sergeant. Three weeks earlier, each plaintiff had been interviewed by four members of the Promotion Board (Norwood E. Jackson, Warden; Frederick W. Kenney, Sr. Assistant Warden; John J. Maffucci, Commissioner; Joseph M. Stancari, Associate Warden). Plaintiffs "were not promoted as a result of those interviews." (Agreed Finding of Fact 30.)
Specifically, Berl was unanimously disapproved for a current promotion—"Career interest, somewhat reluctant to clearly explain position, I feel he's promotable but at later date. Promotable but deferred." (Jackson, Exhs. 31, 33); "Lacks direction & confidence. Did not present a forceful image regarding promotion to Sgt. Was not convincing.... Do not promote at this time." (Kenney, Exhs. 38, 40); "good attitude —has conceptual idea of what sgt. does & how to handle authority, etc. not forceful enough—re leadership role—promotable but not at this time." (Maffucci, Exhs. 12, 13) (italics in original); "Mature and responsible. Presents innovative ideas. Good candidate for future consideration —not projecting strong image at this time. Possibly result of medication and/or injury. Not convincing, not assertive. Not recommended at this time." (Stancari, Exhs. 1, 2).
The Board members also unanimously rejected plaintiff Anderson for promotion "at this time" because of his questionable leadership abilities—"Understands job, but reluctant to assert himself ... Not a strong candidate but promotable. Promotable but defferred [sic]." (Jackson, Exhs. 31, 34); "Good officer but lacks take charge ability. Does not appear sure of himself. Needs greater confidence before consideration for promotion.... Do not promote." (Kenney, Exhs. 38, 39); "good attitude—good employee—11 years on job. Subject is not a take charge person—creates doubt as to leadership potential. Promotable —but not at this time." (Maffucci, Exhs. 12, 14) (italics in original); "Good correction officer, but seems middle of road. Not assertive—questionable abilities —follower. Possibly promotable but not strong candidate at this time. Not recommended." (Stancari, Exhs. 1, 3).
Apparently no sergeant positions were available in the Male Unit when plaintiffs became eligible for promotion on May 21, 1984. However, one sergeant position in the Female Unit was being filled by a temporary female appointee (Jean Mason) and another by a provisional female appointee (Esther Jones). Pursuant to N.Y. Civil Service Law § 65, Westchester County may make provisional appointments only when there is no appropriate eligible list available for filling a vacancy. Apparently, prior to these appointments, the female promotional list had been exhausted.
Plaintiffs remained among the top three candidates on the 70-338 list until a superseding list was established on October 23, 1984. The superseding list, 79-106, was based on the results of a more recent Civil Service exam, which plaintiffs took but on which their scores apparently did not place them among the top three.
Apparently no sergeant positions became available in the Male Unit during the five months which plaintiffs remained eligible for promotion based on the 70-338 list. However, apparently two new openings occurred
Two months after the superseding list was established, a female correction officer (Barbara Gibson) received a temporary appointment to sergeant in the Female Unit.
A. Title VII Claim
Title VII prohibits discrimination in employment by making "[i]t ... an unlawful employment practice for an employer—
42 U.S.C. § 2000e-2(a). The statute forbids discrimination against either sex. See Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 386-87 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Torres v. Wisconsin Dep't of Health & Social Services, 639 F.Supp. 271, 277 (E.D.Wis.1986).
1. Direct Evidence
In a Title VII disparate treatment case,
Standing alone, in this case the policy does not establish that the County intentionally
2. Dual Motivation
Recently Judge Newman of this Circuit discussed the analysis of a dual-motivation situation—
Davis v. State University of New York, 802 F.2d 638, 644-45 (2d Cir.1986). Accord Blalock v. Metal Trades, Inc., 775 F.2d 703 (6th Cir.1985); Bell v. Birmingham Linen Serv., 715 F.2d 1552 (11th Cir.1983), cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984). But cf. Bibbs v. Block, 778 F.2d 1318, 1323-24 (8th Cir.1985) (en banc) (proof that discriminatory motive played some part in the decision establishes Title VII violation, and entitles plaintiff to relief; defendant's proof, that the adverse decision would have occurred even absent the discriminatory motive, serves only to limit the remedy granted).
Judge Newman also took note of the unresolved issue of burdens of proof—
Davis, 802 F.2d at 645. Because a preponderance of the evidence
3. For A Legitimate Reason, Plaintiffs Would Not Have Been Promoted
Under the New York Civil Service law, only those who score among the top three (plus ties) are eligible to be promoted. Plaintiffs were in that group on list 70-338 from May 21, 1984 until October 23, 1984, when a superseding list was established. The record shows that plaintiffs' names were "reachable" as among the top three male candidates only during that five-month period. Accordingly, only that period is relevant to plaintiffs' contention that when they were eligible for promotion, the County passed over them because of their gender, and appointed female applicants to positions of sergeant in the Female Unit.
The record does not show any openings for sergeant in the Male Unit during the five-month period when plaintiffs could have been chosen, although there were apparently four openings in the Female Unit. Those positions were filled either by provisional or by temporary female appointments. The record also shows that before the plaintiffs reached the top three positions on the list, the appointing authority (Mr. John Maffucci) and three other members of the Promotion Board had interviewed and disapproved them for the position of sergeant at that time, because of their deficient or undeveloped leadership qualities.
Section 61 of N.Y. Civil Service Law does not mandate selection of the highest individual on an eligible list, but rather permits selection of one of the top three (plus ties) persons on the list. Section 61
Cassidy v. Municipal Civil Serv. Comm'n of the City of New Rochelle, 37 N.Y.2d 526, 528-529, 375 N.Y.S.2d 300, 302 (1975).
Thus, the County's reason for not promoting plaintiffs to sergeant position because of weak leadership qualities was a legitimate one. Although during the five months when plaintiffs were eligible for promotion to sergeant
Moreover, no females were permanently appointed to sergeant while plaintiffs were eligible for promotion. Sergeant positions in the Female Unit which became available during plaintiffs' five month eligibility period were filled by either temporary or provisional appointments. These appointments
B. Section 1983 Claim
Under § 1983, plaintiffs claim that the defendant violated their Fourteenth Amendment equal protection rights. In this dual-motivation situation, plaintiffs must show that a sexually discriminatory purpose was a motivating factor in the County's decision. If the County then fails to carry the burden of establishing that the same decision would have been made absent the discriminatory motive, an equal protection violation is established. Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th Cir.1986), citing Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 270-71 n. 21, 97 S.Ct. 555, 563-64, 566 n. 21, 50 L.Ed.2d 450 (1977). For the reasons discussed above, the County has carried its burden, and accordingly the § 1983 claim is dismissed.
The Clerk is directed to dismiss the complaint.
Edwards v. Department of Corrections, 615 F.Supp. 804, 806 n. 2 (M.D.Ala.1985).