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Berl v. County of Westchester

decided: June 8, 1988.

LESLIE BERL AND FREDERICK L. ANDERSON, SR., PLAINTIFFS-APPELLANTS,
v.
COUNTY OF WESTCHESTER, DEFENDANT-APPELLEE



Appeal from a judgment after a bench trial before the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, dismissing plaintiffs' civil rights action for allegedly illegal discrimination against the male plaintiffs because defendant refused, solely on the basis of gender, to consider them for promotion at its women's correctional facility. Reversed and remanded.

Pratt, and Miner, Circuit Judges and John M. Walker, District Judge of the Southern District of New York, sitting by designation.

Author: Pratt

PRATT, Circuit Judge:

Plaintiffs Leslie Berl and Fredrick L. Anderson, Sr. appeal from a judgment entered in the United States District Court for the Southern District of New York, after a bench trial before Louis L. Stanton, Judge, dismissing their claims brought under Title VII and 42 U.S.C. § 1983. Plaintiffs claimed that the County of Westchester, New York ("the county") discriminated against them when, on the basis of gender, it refused to consider them for promotion at its women's correctional facility. The trial court found that, because plaintiffs were considered and rejected for promotion at the men's correctional facility during substantially the same period of time that the promotions at the women's facility were made, the county's refusal to promote plaintiffs was based, not solely on gender, but also on a legitimate finding that they were unqualified for increased responsibility.

On appeal, plaintiffs argue that because they were never considered for the openings at the women's facility, nor compared and evaluated against the women who ultimately did receive the promotions, the district court's finding that they were unqualified is clearly erroneous. We agree and reverse.

BACKGROUND

The county's correctional facility at Valhalla, New York, is divided into two units: one for male prisoners, staffed exclusively with male correction officers, and one for female prisoners, staffed exclusively with female correction officers. The county does not consider males for promotion at the female unit, nor does it consider females for promotion at the male unit.

Under New York law, a correction officer at the facility who desires to be considered for promotion must first take the state civil service examination. New York Civil Service Law § 50 (McKinney 1983). The county uses the scores from this examination to create two different lists: one ranking all male candidates, and one ranking all female candidates. In each unit, only the top three candidates on the promotion list are eligible (or "reachable") for consideration when a sergeant position becomes available. New York Civil Service Law § 61(1) (McKinney 1983). Only if the promotion list is "exhausted"--that is, if the county interviews and evaluates all of the candidates and finds each unqualifed--can it provisionally designate some other correction officer to fill a vacant sergeant position. New York Civil Service Law § 65 (McKinney 1983).

Leslie Berl and Frederick L. Anderson, Sr. are male correction officers employed by the county at the Valhalla correctional facility. On April 19, 1980, in anticipation of several new openings for correction-officer sergeant, both officers took civil service examination 70-338. Although both received a final score higher than that of any female correction officer who took the exam, when compared against the scores of other male correction officers, plaintiffs' marks placed them well down the county's promotion list for its male unit.

It was not until over four years later, on May 21, 1984, that Berl and Anderson became "reachable" for promotion at the male unit. In anticipation thereof, on April 25, 1984, the county department of correction invited plaintiffs to appear before the promotion board to be interviewed. After these interviews, members of the board unanimously agreed that although Berl and Anderson might be promotable in the future, neither possessed then the leadership qualities necessary for immediate advancement. Thereafter, plaintiffs remained at the top of the promotion list until the county created a superseding list on October 23, 1984, based on the results of a more recent civil service examination. Plaintiffs took this later exam, but neither officer scored high enough to retain his previous position on the promotion list.

Meanwhile, by February 13, 1984, the county had exhausted its promotion list for the women's unit. As a consequence, on that date it provisionally promoted to sergeant a female correction officer who had not met the normal requirements for advancement. Likewise, on August 13, 1984, because there were still no qualified female candidates for permanent promotion, the county provisionally appointed another female officer to sergeant.

In June of 1984, Berl and Anderson filed a complaint with the Equal Employment Opportunity Commission. After receiving a notice of right to sue, plaintiffs commenced this action in federal district court alleging that the county, in refusing to consider and ultimately promote them to sergeant at the women's unit, had deprived them of employment opportunities in violation of 42 U.S.C. § 2000(e) and 42 U.S.C. § 1983. By stipulation, the county waived any defense of bona fide occupational qualification.

After a bench trial, the district court dismissed the complaint, holding that the county had not infringed on plaintiffs' employment rights under Title VII or § 1983. Relying on the "dual motivation/same decision" test in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), the court determined that the county's policy of considering only females for promotion at the female unit did not conclusively establish that the county unlawfully discriminated against Anderson and Berl. Specifically, the court, taking into account the stipulated facts, found (1) that the county had recently interviewed Anderson and Berl for the position of correction-officer sergeant at the the male unit, and (2) that the county had not promoted plaintiffs to permanent sergeant positions in that unit because of their questionable leadership abilities. This latter finding was sufficient, the court ...


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