PERCYv. BRENNAN Cite as
PERCYv. BRENNAN Cite as 384 F.Supp. 800 (1974) 809 ers in the New York construction indus- the Circuit Court noted, supra, 442 F.2d try (nIT 6, 29). NAACP is a national or- at 166: ganization which seeks to protect the "The district court's holding that the civil rights of black persons (Amended Association lacked standing to sue was Complaint, ITIT 7, 29), and which has pre- handed down prior to that of the Suviously represented its members in anti- preme Court in Association of Data discrimination suits. See, e. g., NAACP Processing Service Organizations, Inc. v. Button, supra; NAACP v. Alabama, v. Camp, 397 U.S. 150, 90 S.Ct. 827, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 265 L.Ed.2d 184 (1970), and in the 1488 (1958). In contrast to the organi- light of that decision and the more rezational plaintiff in Sierra Club, which cent decision in Citizens to Preserve was found to lack standing because it Overton Park, Inc. v. Volpe, 401 U.S. failed to allege that its members "would 402, 91 S.Ct. 814, 28 L.Ed.2d 136 be significantly affected by the (1971), is at least doubtful." actions of the respondents," Sierra Club v. Morton, supra, 405 U.S. It is not alleged that the aims of the orat 735, 92 S.Ct. at 1367, both the mem- ganizations conflict with those of the bers of Fight Back and NAACP and the plaintiffs or the class they seek to repreorganizational aims of these two groups sent. See, Stewards v. American Airare alleged to be directly and adversely lines, 455 F.2d 41 (7th Cir. 1972). The affected by the inadequacies of the New determination of a class would therefore York Plan. Under these circumstances not alter a finding that Fight Back and the organizations have standing to rep- NAACP have standing under Data Procresent their members. This conclusion essing · is particularly appropriate where, as here, "representation of the interests involved is the primary reason for the organization's existence," United States v. Board of School Commissioners, Indianapolis, Indiana, 466 F.2d 573, 576-577 (7th Cir. 1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 ( 1972), or its "raison d'etre", Norwalk C.O.R.E. v. Norwalk Redevelopment Agency, supra, 395 F.2d at 937. · [11] Alternatively, the private de,a fendants move to dismiss as to Fight Back and NAACP on the ground that the organization plaintiffs are not members of the class which the plaintiffs seek to represent, and that a class of persons and associations representing members of the class cannot both pro:. ceed as proper plaintiffs. The proposition is unsupportable. Norwalk C.O;R. E. v. Norwalk Redevelopment Agency~ supra, 395 F .2d at 937. In the only case cited by defendants, Contractors Ass'n of Eastern Pa. v. Sec'y of Labor, supra, 811 F.Supp. at 1007, the District Court did dismiss an association after granting class relief. However, in affirming, 384 F,Supp,-511/z 6. The Suit Against the State Department of Labor. [12-14] The claim against the Department of Labor under 42 U .S.C. § 1981 must be dismissed because a state and its agencies are not "persons" within the meaning of the Civil Rights Act. Bruno v. City of Kenosha, 412 U.S. 507, 511-513, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Furthermore, the doctrine of sovereign immunity bars the claim under the Constitution and Executive Order No. 11246, Larson v. Domestic and Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L. Ed. 1628 (1949); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1889), and the statutory waiver by New York State of its immunity does not encompass this complaint. Maloney y. New York, 207 Misc. 894, 141 N.Y.S. 2d 207 (Ct. of Claims, 1955), aff'd, 2 A. D.2d 195, 154 N.Y.S.2d 132 ( 4th Dept. 1956), aff'd, 3 N.Y.2d 356, 165 N.Y.S.2d 465, 144 N.E.2d 364 (1957); Breen v. Mortgage Commission, 285 N.Y. 425, 35 N.E.2d 25 (1941).
810 384 FEDERAL SUPPLEMENT 7. The Suit Against the Governor and Industrial CommissioneT [15] Finally, the state defendants argue that the complaint fails to state a cause of action against the Go\l'ernor and the Industrial Commissioner of the State of New York. In reviewing a motion to dismiss for failure to state a claim against a state official, the Supreme Court recently reiterated the proposition that ''the allegations of the complaint should be construed favorably to the pleader," Sheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (April 17, 1974), and "should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff could prove no set of facts in support of his claim which would entitle him to relief." · Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), cited in Sheuer v. Rhodes, supra. The amended complaint alleges that the Governor of New York is charged with the duty of enforcing equal employment opportunity requirements applicable in the State of New York, and the Industrial Commissioner is responsible for enforcing equal employment opportunity requirements on New York public construction sites. (ff1f 14, 15) Under the test of Sheuer, the ame~ded complaint here clearly states a viable claim against the Governor and Commissioner since proper enforcement of equal employment opportunity requirements is the very essence of plaintiffs' claim, The motion to dismiss the · complaint against these officials is therefore denied. C. MOTION FOR A DETERMINA TION OF A CLASS (16] Plaintiffs Percy, Mejia and Mercado move for an order allowing this action to be maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and "all other black and Spanish surnamed persons who are capable of performing, or capable of learning to perform, construction work, and who wish to perform construction work within the jurisdiction of unions that are members of the defendant Building and Construction Trades Council of Greater New York." Rule 23(a) states: "(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is unpracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and ( 4) the representative parties will fairly and adequately protect the interests of the class." The private defendants argue that plaintiffs have not met the requirements of subdivisions (a) (2) and (a) (3). The complaint seeks recission of federal approval of the New York Plan which by its terms limits the number of trainee positions to a maximum of 1,000 and which makes no provision for skilled minority workers. Any determination as to whether the Plan violates the United States Constitution or Executive Order No. li246 necessarily involves common issues of law or fact. ( (a) (2) of Rule 23) Where, as here, the common issues predominate over any factual disparities among the members of the class, the requireme11ts of Rule 23(a) (2) are satisfied. Cortright v. Resor, 325 F.Supp. 797, 808 (E.D.N.Y.1971), rev'd on other grounds, 447 F.2d 245 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972); accord, Escalara v. New York City Housing Authority, 425 F.2d 853, 867 (2d Cir. 1970), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L. Ed.2d 91 (1970); Norwalk C.O.R.E. v. Norwalk Redevelopment Agency, supra, 395 F.2d at 937. [17] Plaintiffs' claims are also typical of the class claims. Rule 23(a)(3). The facts here virtually mirror those in Rios v. Enterprise Association Steamfitters Loe. U. # 638 of U.A., 54 F.R.D. 234, 236 (1973), in which Judie Tenney
