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HORNICK v. BOROUGH OF DURYEA

November 6, 1980

Marie HORNICK
v.
BOROUGH OF DURYEA, Borough of Duryea Police Department et al.



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

This action, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. seeks redress for alleged sex discrimination in employment practices. Plaintiff, Marie Hornick, contends that she was the victim of discriminatory treatment during her tenure as a temporary member of the Duryea police force from October 1972 to January 1, 1974. She also alleges that she was denied employment as a Duryea police officer subsequent to January 1, 1974 solely because of her sex. Plaintiff requests appointment to the police force, back pay and reasonable attorney's fees.

 Defendants, the Borough of Duryea, the Borough's Police Department, Police Chief, Mayor, Civil Service Board, *fn1" and members of the Borough's Council and Civil Service Board, contend that this court lacks jurisdiction under Title VII because the Borough did not employ the requisite number of employees to constitute an "employer" within the ambit of the Act. *fn2" With respect to the merits of her complaint, defendants assert that plaintiff failed to establish a prima facie case of sex discrimination. Alternatively, defendants contend that plaintiff's prima facie case was rebutted by evidence that purported to demonstrate that she was unqualified to serve as a police officer.

 This matter was tried before the court without a jury on March 17, 18 and 19, 1980. The parties have submitted proposed findings of fact, conclusions of law, and legal memoranda, and the case is now ripe for disposition.

 For analytical purposes, plaintiff's grievances have been grouped chronologically into three phases. Phase I covers plaintiff's employment as a police officer from October 1972 to January 1, 1974, and the subsequent refusal to hire her as a special police officer shortly after the January 1, 1974, discharge. These matters were the subject of a discrimination charge filed with the Equal Employment Opportunity Commission (EEOC) on or about February 26, 1974. The EEOC, on April 9, 1976, issued a Notice of Right to Sue and also determined that there was no reasonable cause to credit plaintiff's allegation that she was denied a position as a police officer because of her sex. Plaintiff did not file an action within ninety days from receipt of the Right to Sue Notice and, accordingly, this court lacks jurisdiction to afford relief with respect to Phase I of the charges of disparate treatment.

 Phase III of this case concerns the Civil Service test which plaintiff took and failed in November, 1979. I find that plaintiff has failed to demonstrate that this examination had a substantial adverse impact on females and, therefore, that plaintiff has not established that the defendants are presently denying her a position on the police force solely because of her sex.

 Accordingly, plaintiff will be granted back pay minus monies earned in other employment from June 30, 1977 until December 1, 1979, the period during which I believe plaintiff was denied a position on the police force solely because of her sex. The following constitute the requisite findings of fact and conclusions of law. See Fed.R.Civ.P. 52(a).

 FINDINGS OF FACT

 A. Jurisdictional Facts

 1. Plaintiff is a white female residing in the Borough of Duryea.

 2. Defendant Borough of Duryea is a municipal corporation with a population of approximately 5,100 persons.

 3. During the year 1977, the Borough employed 14 full-time workers, two part-time workers, and ten workers employed under the Comprehensive Employment and Training Act (CETA). During the year 1978, the Borough employed 13 full-time workers, four part-time workers, and seven CETA workers. (N.T. 229-231)

 B. Phase I Findings

 4. Defendant Duryea Police Department consists of five full-time permanent police officers and a variable number of special police officers, who work part-time. (N.T. 22; Deposition of Peter Olszewski, N.T. 16)

 5. Defendant Duryea Civil Service Board is a three-man commission organized, inter alia, to administer an examination for the purpose of recommending appointment of civil service status police officers to the Duryea Police Department. (N.T. 143)

 6. The Duryea Borough Council has the authority to appoint full-time civil service members to the Duryea Police Department and to appoint special police officers. (N.T. 158)

 7. The Borough's Police Chief has no formal input into the hiring process for Duryea police officers. (N.T. 69-70)

 8. In September, 1972, plaintiff was hired as a school crossing guard by the Borough. (N.T. 3)

 9. On October 14, 1972, plaintiff was hired as a temporary police officer by the Borough pursuant to a special monetary grant given to the Borough following the Hurricane Agnes disaster. This grant is referred to as the Barnum Flood grant, and persons hired as police officers pursuant to the grant were sometimes referred to as "flood police." *fn3" (N.T. 3)

 10. At the time plaintiff was hired under the Barnum flood grant, Gary Sworen was working as a police dispatcher, (N.T. 38-39) and Leonard Ash was a member of the police department and paid from flood grant funds. (N.T. 4)

 12. Prior to her discharge plaintiff inquired as to the possibility of being retained once Barnum funds had been exhausted, and was told that there were no available openings. (N.T. 282)

 13. Shortly after January 1, 1974, Gary Sworen and Leonard Ash were retained as special police officers. (N.T. 311-314)

 14. On February 26, 1974, plaintiff made her first charge to the EEOC, complaining of disparate treatment while she was on the force, and also that the retention of Gary Sworen after Barnum funds had been spent constituted sex discrimination. (N.T. 4-5)

 15. On April 9, 1976, the EEOC issued a Notice of Right to Sue and a determination of no reasonable cause to credit plaintiff's charge. (Plaintiff's Ex. No. 7)

 16. Plaintiff did not institute legal action within ninety days after receipt of the Right to Sue letter.

 C. Phase II Findings

 17. On August 5, 1975, plaintiff was designated a special police officer in the Borough of Duryea. (N.T. 5)

 18. Special police officers work for the Borough at the direction of the Chief of Police; special police officers work for private organizations at church festivals, fireman picnics, etc., at the request of the individual organizations. (N.T. 46-47) The Chief of Police had no input in deciding who would work for private organizations. (N.T. 47)

 19. On February 15, 1976, George Selden, whose service on the Duryea police force pre-dated plaintiff's, was rehired as a special police officer and received work assignments. (N.T. 4-5)

 20. Between August, 1975 and September, 1976, plaintiff was not given any work by the Borough Police Department, although listed as a special police officer. Between August, 1975 and September, 1976, plaintiff was not requested by any private organizations to work at a private affair. (N.T. 289, 425)

 21. In September 1976, plaintiff agreed to work as a school crossing guard with the understanding that along with school crossing responsibilities she would work part-time as a police officer. (N.T. 289-290)

 22. After working two or three days as a school crossing guard plaintiff quit. She had not received any police assignments during that two ...


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