The opinion of the court was delivered by: GESELL
Joseph T. Watkins, a Negro housing inspector and former president of his union's local, filed a complaint under Commissioner's Order No. 66-1251 on December 8, 1966, alleging that he and other non-white employees of the Housing Division of the Department of Licenses and Inspections were subjected to systematic racial discrimination in various personnel practices since the formation of the Department in 1964. After many delays not caused by Watkins, hearings were held before a three-man Hearing Committee in 1968 at which testimony was taken of 22 individuals. A transcript of 3,000 pages was developed, containing 80 exhibits. Findings by the Hearing Committee and separate findings by the Equal Employment Opportunity Officer sustained most of the allegations made. The findings, along with recommendations for remedial action, were transmitted to the Mayor in accordance with the procedures of Commissioner's Order, No. 66-1251. On September 9, 1969, the Mayor in effect dismissed the complaint, having concluded that the conditions then prevailing in the Department, which had been reorganized as a Division of the Department of Economic Development, did not warrant any action on his part.
In October 1969 this complaint was filed as a class action requesting the Court to set aside the Mayor's action and order appropriate relief.* The matter is now before the Court on the administrative record and cross-motions for summary judgment which have been fully briefed and argued.
Defendants preliminarily assert that plaintiff Watkins may not maintain this suit as a class action, and that the action is barred in any event by the doctrine of sovereign immunity. Both these claims are rejected. Whether Watkins could have qualified to maintain his complaint as a class action had it been filed in this court ab initio is not at issue. The proceeding under the Commissioner's Order has from the beginning been maintained on a class basis; the hearings and findings dealt with issues applicable both to the class as a whole and to individuals within the class; the remedies proposed by the Hearing Committee and the E.E.O. officer dealt with all aspects of the complaint; and the Mayor's action was predicated on grounds generally applicable to the class. Under these circumstances, the Court finds that this is a proper class action under Rule 23, Federal Rules of Civil Procedure.
Nor is the claim barred by the doctrine of sovereign immunity. It was settled long ago that the courts have power under the Constitution to remedy racial discrimination by a public agency in any form. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954); Cooper v. Aaron, 358 U.S. 1, 3 L. Ed. 2d 5, 78 S. Ct. 1401 (1958).
To be sure, the Mayor has discretion in framing an appropriate remedy in a proceeding under Commissioner's Order No. 66-1251, but where a definite and persistent pattern of unconstitutional racial discrimination has been amply demonstrated, he must take affirmative steps to re-enforce his expectations. It is not sufficient to express the hope that discrimination will disappear and to exhort those involved to a better performance. Great expectations are not sufficient to root out racial discrimination. As the Supreme Court stated in Louisiana v. United States, 380 U.S. 145, 154, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965):
the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.
The Court will not disturb the Mayor's determination that no disciplinary action be taken against present or former employees of the Division, nor will the Court direct that any particular individuals be promoted to specific jobs within the Division. There are some employees in the Division, however, whose advancement has been demonstrably impeded by racial discrimination. To compensate for this injury, the Court will direct that the sum of $32,400 be paid to the fourteen persons listed in Appendix E to the Complainant's Proposed Enforcement Order, the sum to be divided pro rata among these persons according to the "period of compensation" as determined by Complainants and set forth in that Appendix. The Court will also order relief to three named individuals as recommended in paragraph 8 of the E.E.O. Officer's recommendations and paragraphs 3(c) and 4(b) of the Complainant's Proposed Enforcement Order.
In light of the fact that three years have passed since the findings were made in this case, the Court will not direct particular changes in personnel practices or periodic reports as recommended by the E.E.O. Officer. However, the head of the Division of Licenses & Inspections will be directed to prepare a comprehensive report covering the period of January 1, 1968, to the present, detailing by race the number of persons hired and promoted during that period in each job category, the number of persons against whom disciplinary action has been taken and the reasons therefor, and the number of persons occupying each salary grade classification within each branch of the Division as of the present time as compared with January 1, 1968. The report shall further detail any concrete steps taken by the Division since January 1, 1968, to eliminate the effects of past discrimination and ensure nondiscrimination in the future. Copies of this report shall be submitted by October 1, 1971, to the Mayor, as well as to the head of the Department of Economic Development, the Equal Employment Opportunity Officer, and counsel for plaintiffs in this case. On the basis of the report and the advice of the other recipients of the report, the Mayor shall determine whether racial discrimination continues to exist in the Division in any form, and if so he shall take immediate steps to eliminate any such discrimination.
Defendants' motion for summary judgment is denied. Plaintiff's motion is granted to the extent indicated in this Memorandum. Plaintiff shall submit an appropriate order in accordance with this Memorandum within ten days.
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