People v. New York City Transit Authority

In an action for equitable and legal relief brought on behalf of women bus drivers working for the defendant, New York City Transit Authority, defendant appeals (1) from an order of the Supreme Court, Kings County (Kartell, J.), dated September 30, 1981, which granted plaintiff’s motion for a preliminary injunction and ordered defendant to administer a new examination and to establish a list of persons eligible for the position of surface line dispatcher, and (2) from so much of a further order of the same court (Adler, J.), dated December 11, 1981, as denied its motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 5, 7). Plaintiff cross-appeals from so much of the order dated December 11, 1981 as denied its motion for partial summary judgment. Appeal from the order dated September 30, 1981 dismissed as academic, without costs or 767 disbursements. Order dated December 11, 1981 modified, on the law, by deleting therefrom the provision denying defendant’s motion to dismiss the complaint and substituting therefor a provision granting said motion. As so modified, order affirmed, without costs or disbursements. The Attorney-General brought this action on behalf of women bus operators employed by the defendant, New York City Transit Authority. The complaint alleges violations of section 296 of the Executive Law and section 11 of article I of the New York State Constitution. The Attorney-General alleged that defendant’s use of seniority as a factor to be considered in making provisional and permanent appointments of bus operators to the position of surface line dispatcher was discriminatory because it “disproportionately disqualifies female drivers and perpetuates the prior discriminatory practices of [defendant]” in violation of section 296 (subd 1, par [a]) of the Executive Law. The Attorney-General does not allege that defendant’s use of seniority in making appointments differentiates per se between similarly situated males and females on the basis of sex. The use of seniority in making appointments is neutral on its face. The only claim is that female bus drivers occupy a lower part on the seniority list than they rightfully should because of the defendant’s prior discriminatory hiring practices. We conclude that Special Term erred in holding that defendant’s earlier discriminatory practice was of a continuing nature so that the action was timely for the purposes of the one-year Statute of Limitations (see Executive Law, § 297, subd 5; 9 NYCRR 465.3 [e]). In United Air Lines v Evans (431 US 553), the Supreme Court held that a bona fide seniority system, neutral on its face and in its application, but which has an adverse impact on a group because of prior discriminatory practices, is not a continuing violation of the Civil Rights Law (US Code, tit 42, § 2000e-2, subd [a], par [2]; accord Teamsters v United States, 431 US 324; American Tobacco Co. v Patterson, 465 US 63; Cates v Trans World Airlines, 561 F2d 1064). We recognize that the Supreme Court in United Air Lines v Evans (supra) was influenced by title 42 (§ 2000e-2, subd [h]) of the United States Code which provides in pertinent part that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation * * * privileges of employment pursuant to a bona fide seniority * * * system * * * provided that such differences are not the result of an intention to discriminate”. Pertinent sections of New York’s Civil Service Law recognize the long history of the role of seniority in the area of civil service employment and promotions. Thus, section 80 of the Civil Service Law provides that seniority governs which persons are first to be suspended or demoted and section 52 provides that due weight should be given to seniority for promotion purposes (see, generally, Acha v Beame, 438 F Supp 70, affd 570 F2d 57). The underlying legal wrong affecting the female bus drivers is not an alleged discriminatory use of seniority but a past discriminatory hiring system with present effects. As the court in United Air Lines v Evans (supra, p 558) noted “the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.” It is true that because the defendant barred women from filling bus operator positions until 1971 and effectively precluded them from gaining the position until 1978 by virtue of a 5-foot 4-inch height requirement, male bus operators have more seniority than female bus operators. A complaint which is premised upon these prior practices, however, is clearly time barred (see Executive Law, § 297, subd 5). Since the Attorney-General does not attack the operation of seniority, per se, but rather the effect of its use, no present violation of the Human Rights Law is alleged. Accordingly, Special Term erred in denying defendant’s motion to dismiss the complaint. Matter of Board of Educ. of Farmingdale Union Free School Dist. v New York State Div. of Human 768 Rights (56 NY2d 257) is not to the contrary. In United Air Lines v Evans (supra, p 558) the Supreme Court specifically noted: “She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a nondiscriminatory reason. In short, the system is neutral in its operation.” In Farmingdale, however, the Court of Appeals noted (pp 261-262): “The seniority system devised by the Board purports to treat all teaching personnel equally, disallowing credit for service preceding any resignation. The system, however, does not take into account the only resignation that was forced — that of a pregnant nontenured teacher. The system thus imposes a distinct burden on a woman who became pregnant during service (cf. Nashville Gas Co. v Satty, 434 US 136), effectively penalizing her again for her prior pregnancy. The facially neutral system cannot mask the unfavorable employment consequences attendant only upon pregnancy.” In the present case there is nothing to indicate that anything other than the operative neutrality of Evans rather than the masked discrimination oí Farmingdale is present. We also note that unlike the teacher in Farmingdale who lost credit for years of completed service, the women herein merely complain that they were not given the opportunity to acquire completed service for years before 1978. We believe the dissenter errs in finding the need for a trial without first finding a present discriminatory effect in the facially neutral system. Absent a showing of present impropriety in using the long-established system that takes seniority into account, the action herein is time barred. If the use of seniority is improper as rejuvenating a past discrimination, seniority should not be used at all in the present promotional scheme at issue. No showing has been made, however, that the use of seniority creates a present wrong or is otherwise unacceptable. Purposeful discrimination must be shown to sustain the Attorney-General’s claim based upon section 11 of article I of the State Constitution (Personnel Administrator of Mass v Feeney, 442 US 256; Washington v Davis, 426 US 229; Matter of 303 West 42nd St. Corp. v Klein, 46 NY2d 686). The record does not contain any evidence of intentional discrimination by defendant in its use of seniority as a factor in making appointments. In light of our determination on the appeal from the order dated December 11, 1981, the appeal from the order dated September 30,1981 is now moot. In addition the defendant is not making any further provisional appointments and has administered an examination for permanent appointments. A list will soon be published. On the facts of this case, then, the rights of the parties cannot be affected by the determination of the appeal from the order dated September 30, 1981. That order granted the preliminary injunction to enjoin the defendant from making further provisional appointments. The appeal from the order is thus moot for this additional reason (Matter of Hearst Corp. v Clyne, 50 NY2d 707). Gibbons and Thompson, JJ., concur.