Appendix — Fitzpatrick v. Kirkland

rite O |

80-992 YEG 17 1980

No.

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1980.

DENNIS FITZPATRICK, et al.,

Petitioners,

Vv.

EDWARD L. KIRKLAND, et al.,

Respondents.

PetiTIon FoR A Writ oF CERTIORARI TO THE UNITED STATES

Court or APPEALS FOR THE SECOND Circuit.

PETITIONERS’ APPENDIX.

a ——-

( —

Ricuarp R. Row.ey

Attorney for Petitioners

90 State Street

Albany, N. Y. 12207

(518) 434-6187

INDEX TO APPENDIX.

Appendix A--Opinion of U. S. Court

of Appeals, Second Circuit °

Appendix B--Decision of Hon,

Morris E. Lasker, January

21, 1980 . ° ° ° ° °

Appendix C--Order and Judgment,

January 21, 1980 . ° ° °

Appendix D--Order, August 22,

1979 . ‘ ; : ° :

Appendix E--Opinion of District

Court ° : . . .

Appendix F--Decree of District

Court . . ° ° , ;

Appendix G--Supplemental Order,

September 18, 1974 ° . °

Appendix H--Opinion of Court of

Appeals. °

Appendix I--Order on Remand,

August 3, 1975 ‘ ° . °

Page

G-1

ii.

Appendix J--Order Denying Rehear-

ing . . . . . ° .

Appendix K--Intervenors' Complaint

- Class Action . ° . ‘

Exhibits Annexed to Intervenors'

Complaint:

A. Announcement of

Examination . . . °

B. Test of Introductory Re-

marks by Commissioner

Richard Van Zandt and

Manual of Performance

Rating . . , e .

C. Affidavits , ‘ : :

Appendix L--Affidavit of Kenneth L.

Siegal, September 26, 1979 °

Exhibits Annexed to Siegal

Affidavit:

A. Table . . . . .

Page

K-49

iii.

Page

B. Trend Lines-White and

Minority ° . . - L-10

C. Composite Predictor by

Ethnic Group . e »- L-ll

Appendix M--United States

Constitution . ‘ ‘ ‘ -. Mel

A-1l

APPENDIX A--OPINION OF U. S. COURT OF

APPEALS, SECOND CIRCUIT.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

7

No. 1127—September Term, 1979

(Argued April 28, 1980 Decided August 18, 1980)

Docket No. 80-7129

a

EDWARD L. KIRKLAND and NATHANIEL HAYES, each

individually and on behalf of all others similarly

situated,

Plaintiffs-Appellees,

—against—

THE NEW YorK STATE DEPARTMENT OF CORRECTIONAL

SERVICES; RUSSELL OSWALD, individually and in his

capacity as Commissioner of the New York State

Department of Correctional Services; THe NEW

YoRK STATE CiviL SERVICE CoMMISSION; ERSA Pos.

TON, individually and in her capacity as President of

the New York State Civil Service Commission and

Civil Service Commissioner; MICHAFL N. SCELSI and

CHARLES F. STOCKMEISTER, each individually and in

his capacity as Civil Service Commissioner,

Defendants-Appellees,

—and—

®

DENNIS FITZPATRICK, FRANK MCDONNELL, BRUCE FAr.

RELL, THOMAS FARRON, VINCENT DiGiorGIo, ROBERT

A-2

VERCILE ROSE, RAYMOND E. FRISS, and BRUCE

MESERVEY,

Intervenors-Appellants.

Before:

LUMBARD, VAN GRAAFEILAND, and KEARSE,

Circuit Judges.

>

The District Court for the Southern District, Lasker,

J., granted summary judgment against intervenors,

who had filed a complaint alleging that an examination

given to corrections officers seeking promotion to the

rank of sergeant violated their rights under 42 U.S.C.

§ 1983.

Affirmed.

JEFFREY G. PLANT, Esq., Albany, New York

(Rowley and Forrest, P.C., Albany,

N.Y., Richard R. Rowley, Esq., of

counsel), for Intervenors-Appellants

Fitzpatrick, et al. :

JUDITH REED, Esg., New York, N.Y. (Jack

Greenberg, Esq., O. Peter Sherwood,

Esq., New York, N.Y., of counsel), for

Plaintiffs-Appellees.

JUDITH A. GoRDON, Assistant Attorney

General, New York, N.Y. (Robert

Abrams, Attorney General of the State

ef New York, George D. Zuckerman,

A-3

Assistant Solicitor General, New York,

N.Y., of counsel), for Defendants-

Appellees.

ae

LUMBARD, Circuit Judge:

This is an appeal taken by intervenors, incumbent

corrections officers employed by defendants, New York

State Department of Correctional Services, challenging

the lawfulness of the methods of testing and scoring

developed by the defendants, pursuant to court order,

for use in making promotions to the rank of corrections

sergeant. Intervenors seek to enjoin promotions made

on the basis of the disputed test; defendants and

plaintiffs in the underlying discrimination suit ap-

proved of the test and sought summary judgment

against intervenors. The District Court for the

Southern District, Lasker, J., granted summary judg-

ment against intervenors. We affirm.

The Department of Correctional Services makes

permanent appointments to the rank of sergeant by

means of competitive examination. In 1974, in a suit

brought by black and hispanic corrections officers,

Judge Lasker found that the test from which

promotions to sergeant were being made at that time

was discriminatory. Kirkland v. New York State

Department of Correctional Services, 374 F.Supp. 1361

(S.D.N.Y. 1974). We affirmed, 520 F.2d 420 (2d Cir.

1975). In our opinion, we spelled out the relief

appropriate, which included the administration of a

new, non-discriminatory test to be “validated in

accordance with the E.E.0.C. Guidelines on Employ-

A-4

ment Selection Procedures,” id. at 426 and we ordered

that “the new testing procedures be validated by means

of empirical criterion-related validation techniques if

feasible.” Jd. at 431.

Pursuant to our directives, the Department developed

Test No. 36-435. This examination consists of two

parts: a written multiple-choice portion in which test-

takers are asked to answer questions relating to the

work of a corrections officer; and a set of “performance

ratings’ made by the test-taker’s departmental supe-

riors who have observed the candidate’s on-the-job

performance. The “performance ratings” are given in

four major areas, and the candidates are assigned a

numerical grade depending on how closely their

performance meets, in the rater’s view, the standards

set out in paragraph-long descriptions of varying levels

of job competence. For example, when rating an

applicant’s record in “Taking effective, positive direct

action in security situations,” one of the four major

areas graded, the standards range from:

Is alert and active in searching out and preparing

for potential incidents. Acts efficiently and posi-

tively in taking charge at the scene of a

disturbance . .

to

He misappraises the security implications of

situations. Does not take charge in situations which

clearly call for it...

When a grader gives a particularly high or low grade

(the examples given above represent opposite ends of

the spectrum), he must provide additional explanation.

Each applicant is graded by two different evaluators in

A=-5

the performance portion of Test No. 36-435, and if the

scores assigned differ significantly, the two graders

must explain, in writing, the reasons behind this

difference. An applicant can appeal the score he

receives in the performance portion of the exam, and if

he does so, two other graders will be assigned to

perform a de novo evaluation.

In December, 1978, Test No. 36-435 was given to

approximately 2,300 applicants for the rank of

sergeant. Pursuant to the district court’s decree, a

“validation study” was carried out in order to determine

if the test would function accurately as a non-

discriminatory predictor of on-the-job performance, The

methodology employed, which in this respect is not

challenged,’ was to compare the raw scores of

applicants—grouped by racial identity—on the perform-

ance portions of the exam, to their raw scores on the

entire exam, in which the written multiple-choice exam

results figured. A disparity of, on the average, 268

points out of a total of 8,830 was discovered. This

figure represents the fact that, on average, a black

applicant’s raw score on the total exam was 268 points

lower than that of a white applicant, in a case where

both black and white applicants had scored equally well

in the performance rating portion of the exam. In order

to “validate” Test No. 36-435, the Department re-scored

1 Intervenors do not challenge the mathematical correctness of the

statistical analyses upon which the district court’s conclusions rest in

any way requiring extensive analysis. They argue, for example, that

the 250-point figure is imprecise, and benefits disproportionately

those minority group members who scored relatively well on the

written portion. In our view, it would be impossible to eliminate al!

possible imprecisions in adjusting scores on an 8,830 point exam,

and we do not think the district court erred in holding that these

contentions cid nyt raise a genuine issye of materia! fact.

A-6

exam results by adding 250 points to the raw score of

every minority group applicant.

Intervenors, who are non-minority test-takers, were

granted leave by the district court to file a complaint

under 42 U.S.C. §§ 1981 and 1983. They argue that the

250-point bonus is tantamount to a quota illegal under

federal and state law and that the test violates New

York’s Civil Service laws. Judge Lasker granted the

motion for summary judgment against intervenors

made by plaintiffs and defendants.

We affirm. The intervenors raised no triable issues of

material fact regarding Test No. 36-435, and we agree

with the district court’s conclusions of law.

Appellants are entirely misguided in arguing that the

250-point differential is a quota,? for it does not require

that a minimum number of sergeant appointments be

given to any members of a minority group. To the

extent that appellants’ argument is directed toward the

fundamental! fairness of the 250-point adjustment, we

note that the district court found that the differential

was necessary to prevent future discrimination of the

kind found to have existed earlier in this case. Without

the 250-point correction, the new test—like its prede-

cessor—would not be “valid”, since it would not serve as

a race-neutral predictor of on-the-job performance.

Contrary to appellants’ interpretation, the E.E.0.C.

guidelines recognize the possibility that a point

correction to raw scores should be made in some

2 Intervenors also argue that Washington v. Davis, 426 US. 229

(1976), precludes a finding that a racially neutral exam is

discriminatory based solely on disproportionate racial impact.

Whatever the merits of this argument, it is settled law of this case

that the sergeant’s test which Test No. 36-435 replaced was

discriminatory.

A-7

Situations, i.e., “to assure compatibility between the

probability of succcessful job performance and the

probability of being selected.”* 29 C.F.R. § 1607.14

(B\8)(d).

Appellants also argue that the 250-point differential

is “reverse discrimination” in violation of part of our

holding in the earlier appeal in this case, 520 F.2d 420

(2d Cir. 1979). In that opinion we said that “no one

should be ‘bumped’ from a preferred position on the

eligibility list solely because of his race.” Jd. at 429.

Although we do not discount the continuing validity of

this statement, we observe that its context demon-

strates that it was directed primarily to the question of

minority group quotas for promotions. Kirkland for-

bade such quotas and, as we have said above, the steps

taken by the Department at issue in this case do not

constitute de jure or de facto quotas. This program does

not bump white candidates because of their race but

rather re-ranks their predicted performance as esti-

mated by the combined test score and job performance

ratings. Finally, our previous opinion approved a broad

range of affirmative action relief, including quotas in

interim appointments, id. at 429-430, and made a

distinction between quotas in initial hiring decisions

and in promotions.

Of course, the 250-point differential does operate to

favor minority test-takers if one assumes that the

multiple-choice written portion of the exam is a truly

objective measure of qualities important to success as a

corrections officer. But even if “[s]lome non-minority

3 We do not mean to imply that the EEOC Guidelines must be

followed. See Guardians Association of the New York City Police

Dep't v. Civil Service Commission, Slip Op. 4755, at 4776-78 (2d Cir.

July 31, 1980).

A-8

applicants near the cut-off scores of appointment will!

be effectively denied employment owing to the

elevation of scores of minority candidates,” appellants

have not cited us to any persuasive authority in federal

law that makes such denial! illegal. In light of the

importance of non-discriminatory hiring in correctional!

institutions, where a high percentage of the inmates are

members of minority groups, the lack of any such

prohibition is easily understood.

Moreover, the issue of the 250-point differential is

settled by the law of the case doctrine. Our earlier

Kirkland decision requires any new test “to be validated

by means of empirical criterion-related validation

techniques if feasible.” 520 F.2d at 431. By requiring

the use of such techniques we, in effect, foreclosed the

argument made now by intervenors. Criterion valida-

tion requires the abstracting of job performance

characteristics and the rating of employees as to how

they measure up to these characteristics. These ratings

can then be compared to the performance of applicants

who have taken a written exam. If significant variation

correlating to racial identity is found in such a

comparison, the test fails to be criterion valid. In this

case, the abstracting of job performance characteristics

and the rating of applicants were performed as part of

the examination later validated. Appellants’ argument

that the 250-point differential constitutes tampering

with the results of a valid test thus puts the cart before

the horse; the results of the written portion of the exam

are not valid until they have been compared to Job

performance criteria. As the E.E.0.C. guidelines

recognize, once the results of such a comparison

indicate a discrepancy, the responsible authorities have

a choice. They can return to the drawing board and

A-9

design a new test meant to correlate to job performance

ratings; or they can adjust the test to bring the resu!ts

into conformity with those ratings. See 29 C.F.R.

§ 1607.14(8)(d). In this case, they chose the latter

course of action, an alternative clearly foreseen by our

prior opinion.

Appellants’ second major group of arguments assert

that New York’s Civil Service laws and policies prohibit

a test that, like No. 36-435, emphasizes subjective job

performance evaluation over more traditionally objec-

tive varieties of competitive examination, such as

written multiple-choice questions. The primacy given

the job performance portion of the test cannot be

disputed. Indeed, since the effect of the 250-point

differential is to bring the average minority applicant’s

total raw score up to the level of non-minority test-

takers with equal job performance ratings, it can be

argued that—at least insofar as deviations from the

average are disregarded—the results of the written

portion of Test No. 36-435 are entirely superfluous

when minority applicants are involved. The question

that must be answered is whether or not New York law

permits appointments to be made on the basis of job

performance evaluations. We conclude that it does.

New York law does not reject all means of making

civil service appointments differing from the norm of

competitive written examinations. The constitutional

provision in question, Article V, § 6, reads in pertinent

part:

Appointments and promotions in the civil service

of the state and all of the civil divisions thereof,

including cities and villages, shall be made

according to merit and fitness to be ascertained, as

A-10

far as practicable, by examination which, as far as

practicable, shall be competitive... .

Interpreting this provision, New York courts have made

it clear that the use of the terms “merit and fitness”

and “as far as practicable” justify interviews as

permissible departures from objective written examina-

tions. Walker v. Board of Examiners, 22 Misc.2d 345

(Sup.Ct. N.Y. Co. 1957), aff'd mem., 7 A.D.2d 968 (1st

Dept. 1959). Consideration of on-the-job performance as

a factor in granting a teacher’s license was approved in

Sloat v. Board of Examiners, 274 N.Y. 367 (Ct. App.

1937). In Young v. Trussel, 42 Misc.2d 108 (Sup.Ct.

N.Y. Co. 1964), the court approved a_ procedure

whereby applicants for the post of psychologist were

not only given a written examination but were assigned

a “key rating” score based on certain numerical values

attached to past experiential and educational qualifica-

tions. In Shanley v. Leonard, 87 Misc.2d 915 (Sup.Ct.

Nassau Co. 1976), the court approved a system whereby

promotions were made by written exam supplemented

by scoring differentials giving candidates additional

credit for past departmental commendations. See also

Bobrowich v. Poston, 52 A.D.2d 478 (3d Dept. 1976);

Chance v. Board of Education, 496 F.2d 820, 824 (2d

Cir. 1974).

Appellants rely on two cases which invalidated,

respectively, the 1961 and 1963 exams given to state

police officers for promotion to police sergeant.

Donohue v. Cornelius, 39 Misc.2d 539 (Sup.Ct. Albany

Co. 1963); Donohue v. Cornelius, 22 A.D.2d 1000 (3d

Dept. 1964). Both tests included a written component, a

performance evaluation component, and an oral exam.

The first Donohue opinion explained:

A-11

An examination cannot be classed as competitive

unless it conforms to measures or standards which

are sufficiently objective to be capable of being

challenged and reviewed, when necessary, by other

examiners of equal ability and experience.

39 Misc.2d at 541-542. The court noted, in invalidating

the 1961 exam, that the oral portion of the exam

included questions about the applicant’s subjective

beliefs and attitudes. The second Donohue opinion

pinpointed as objectionable the use of performance

ratings that, instead of being aggregates accumulated

over time as part of a service record, were arrived at

“specifically for purposes of the examination, by a

rating board guided only by general standards.” 22

A.D.2d at 1001.

We think both cases are distinguishable from the case

at bar. No candidates taking Test No. 36-435 were

asked questions regarding their persona! beliefs or

attitudes. And although the performance ratings were

not part of an ongoing service record, the standards

used by the raters were not “general standards,” as

prohibited by Donohue IJ, but specific and detailed

ones, each running to a paragraph of terse, descriptive

prose.

In our view, the key to determining whether an

examination is objective enough to qualify as within

New York’s civil service law was stated in that portion

of the Donohue J opinion quoted above, and in Fink v.

Finnegan, 270 N.Y. 356, 362 (Ct.App. 1936). The

guiding principle established in these cases is the

reviewability of the exam. In the case of Test No. 36-

435, officers who perform the evaluations must provide

written explanations for high and low ratings, and

A-12

there is a provision for written explanations when the

ratings assigned a candidate by his two evaluators

differ widely. Where the raters do not disagree, no

explanation is required; in such cases the very degree of

agreement provides a basis for sustaining the objectiv-

ity of the rating. The correlation between the values

assigned by the two raters was .80 out of a possible

1.00, a high enough figure to support the district

court’s conclusion that the ratings were an objective

measure of performance. Moreover, the testing proce-

dures allow for appeals, including a de novo second

rating by two officers who did not participate in the

initial rating, and, of course, an applicant may bring an

Article 78 proceeding in state court to obtain judicial

review.

Additionally, we note that the use of on-the-job

performance ratings as the principal method of making

“merit and fitness” appointments to civil service

positions is considerably more defensible when the

appointment at issue is a promotion rather than an

initial hiring. Cf. Kirkland, supra, at 429 (distinction

between initial hirings and promotions in the context of

quotas). Where, as here, each of the test-takers has an

on-the-job history that can be evaluated, and where the

position he seeks is one requiring qualities similar to

those already displayed in the performance of his

duties, the argument for reliance on performance

ratings is stronger than if this were a case involving

applicants for initial appointments.

Finally, appellants challenge the validity of the 250-

point differential under state law. Appellees seek to

justify the differential under state law by directing our

attention to 4 N.Y.C.R.R. § 67.1(g), which allows for

differential weighing of test components “for candidate

A-13

subgroups, if scores of such subgroups are shown to

differ substantially in their relation to measures of

performance.” Appellants respond that a variation of

approximately 250 out of 8,830 points is not “substan-

tial,” and that in any event the regulation is

inconsistent with Article V, §6 of the New York

Constitution, quoted supra, if the regulation is inter-

preted to allow additions to the scores of members of

racial subgroups. We hesitate to say whether, as a

matter of law, an approximately 3% variation is

“substantial,” because the answer may well depend on

how test scores bunch together; for example, if most

scores fell within 500 points of each other, a 250-point

difference would clearly be quite substantial.

We see no need, however, to reach the question of the

compatibility of the 250-point addition with the New

York Constitution. In this case, a finding of discrimina-

tion unconstitutional under the United States Constitu-

tion has been upheld on prior appeal, and the power of

the district court to fashion a remedy is a matter of

federal law under the supremacy clause.

Affirmed.

__

B-1

APPENDIX B--DECISION OF HON. MORRIS E.

LASKER, JANUARY 21, 1980.

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF NEW YORK.

EDWARD L. KIRKLAND, et al.,

Plaintiffs,

-against-

THE NEW YORK STATE DEPARTMENT OF

CORRECTIONAL SERVICES, et al.,

Defendants,

-and-

ALBERT RIBIERO and HENRY L. COONS,

Intervenors-

Defendants,

-and-

DENNIS FITZPATRICK, et al.,

Intervenors-

Defendants.

73 Civ. 1540 (MEL)

B-2

APPENDIX B

APPEARANCES:

JACK GREENBERG, ESQ.

JUDITH REED, ESQ.

10 Columbus Circle

New York, New York 10019

Attorneys for Plaintiffs

ROBERT ABRAMS, ESQ.

Attorney General of the State of New York

Two World Trade Center

New York, New York 10047

Attorney for Defendants

JUDITH A. GORDON, ESQ.

Assistant Attorney General

ROWLEY & FORREST, ESQS.

729 National Savings Bank Building

90 State Street

Albany, New York 12207

Attorneys for the

Intervenors-Defendants

JEFFREY G. PLANT, ESQ.

Of Counsel

LASKER, D.J.

This case has been remanded by the

Second Circuit Court of Appeals which

affirmed an order of this court enjoin-

ing as unconstitutionally discriminatory

the promotion of correctional sergeants

B-3

APPENDIX B

based on the results of Examination No.

34-944, and requiring the development of

criterion valid testing procedures in

accordance with the Equal Employment

Opportunity Commission Guidelines on

Employment Selection Procedures, 29 C.F.R.

§§ 1607.1 et seq. (1979). (the Guidelines),

Kirkland v. New York State Dep't of Cor-

reecttonal Services, 520 F. 2d 420, 431

(24 Cir. 1975).

Plaintiffs and defendants now apply

for an order approving the proposed use

of Examination No. 36-435 for selection

of correctional sergeants. They also

move for summary judgment dismissing the

Fitzpatrick intervenors' complaint.

The decision whether to grant these

requests is based on affidavits submitted

by the parties and conferences with the

B-4

APPENDIX B

court on the record in which were set

forth the factual details relating to

the criterion validity of the examination,

its validity under the Guidelines, and the

determination to add 250 points to the

scores of Blacks and Hispanics. The docu-

mentary support includes defendants' re-

port entitled "Correction Sergeant Selec-

tion System: Validity and Ethnic Effect";

three affidavits of Kenneth L. Siegal,

the Principal Personnel Examiner for the

New York State Department of Civil Serv-

ice, who has a Master's Degree in Educa-

tional Psychology and Statistics, and

who was responsible for the design and

development of the Correction Sergeant

Selection System; an affidavit of Richard

S. Barrett who was employed by the EEOC

to participate in the deliberation of the

B-5

APPENDIX B

staff committee responsible for drafting

the Guidelines and their clarifications

and to prepare a training program for

staff attorneys; a letter dated January

11, 1980 from Leroy D. Clark, General

Counsel for the EEOC; and affidavits of

correction officers employed by the

state who took or administered the exam-

ination. The reader is referred to such

documents for details relating to the

nature of the proposed new examination

and the procedures utilized to validate

it.

Disposition of both requests for

relief turns on resolution of the same

issues: that is, whether the proposal

meets the requirements set forth in this

case by the Second Circuit in its opinion

B-6

APPENDIX B

remanding for determination of an appro-

priate remedy. For the following rea-

sons, both the application and the motion

for summary judgment are granted.

First, there are no genuine issues

of material fact which require trial. It

is true that the intervenors have submit-

ted a Rule 9(g) statement in opposition

to the motion for summary judgment in

which they assert numerous propositions

which they describe as issues of material

fact. However, the intervenors' papers

do not allege facts which controvert

those stated by plaintiffs and defendants

in their 9(g) statement and supporting

affidavits. Rather, they merely assert

that factual questions exist (e.g., 9]

10, lé(cj, 16le], 16{r]), and challenge

the legal conclusions to be drawn from

B-7

APPENDIX B

facts whose truth is not and cannot be

challenged (e.g., 411 5, 7, 12, 13, 14,

15, 16lb]). In sum, the intervenors'

papers raise legal issues only, which

appropriately should be decided on a

motion for summary judgment. Fed. R.

Civ. Proc. 56(c).

Second, the proposed examination

and addition of 250 points to the scores

achieved by Black and Hispanic candidates

satisfy the requirements established by

the Second Circuit in this case. The

intervenors oppose essentially two facets

of the proposed order: the addition of

250 points to the scores achieved by min-

ority applicants and the job performance

evaluation component of the examination.

The addition of 250 points to the

scores of minority applicants is claimed

B-8

APPENDIX B

to establish a quota contrary to the man-

date of the Court of Appeals; yet this

is simply not true. The proposed plan

does not establish a fixed number of min-

ority members to be promoted without re-

gard to the applicants' job performance.

The true affect of the addition of 250

points to the scores of minority members

will be merely to render the examination

procedure balanced, whereas without the

adjustment, the validated procedure ap-

pears to favor white candidates.

The intervenors further object that

the 250 point adjustment violates the

EEOC Guidelines.” It is undisputed that

Since Examination No. 36-435 is highly

predictive of job performance for whites,

while not as predictive of job perform-

ance for Blacks and Hispanics, Affidavit

B-9

APPENDIX B

of Kenneth L. Siegal (September 26, 1979),

the use of the test would be "unfair" as

that term is used by the Guidelines. 29

C.F.R. § 1607.14(B) (8) (a) (1979). Accord-

ingly, under the Guidelines, the use of

Examination No. 36-435 may be "revis[ed|

» « »« tO assure compatibility between

the probability of successful job per-

formance and the probability of being

selected." Id. § 1607.14(B) (8) (d). Thus,

the addition of 250 points, as a revi-

sion of the use of the examination is author-

ized by the caaines, Affidavit of

Richard S. Barrett, p. 4; Letter from

Leroy D. Clark, General Counsel of the

Equal Employment Opportunity Commission

(January 11, 1980).

Intervenors have submitted no affi-

davits of experts and have offered no

B-10

APPENDIX B

expert testimony that would controvert

the facts established by plaintiffs' and

defendants' experts. Instead, inter-

venors rely exclusively on argumentation

of their counsel.

Finally, the intervenors object to

the job performance rating component of

the examination itself on the grounds

that the criteria used by the raters are

so subjective as to allow the introduc-

tion of the personal bias and favoritism

of the raters. New York caselaw requires

that examinations governed by the Civil

Service Law use standards that are suffi-

ciently objective and specific so that

the ratings that result from an applica-

tion of those standards be reviewable by

other examiners. F£.g., Sloat v. Board

of Examiners, 274 N. Y. 367, 371 (1937);

B-11

APPENDIX B

Fink v. Finegan, 270 N. Y. 356, 361, 1

N. E. 2d 462 (1936). Nevertheless, if

an order remedying unconstitutional dis-

crimination and violation of federal

antidiscrimination laws were inconsis-

tent with state law, such an order would

be valid under the Supremacy Clause of

the Constitution. U. S. Const. Art. VI,

cl. 2. However, here, there is no need

for the order to be inconsistent with

state law, since the examination may be

both non-discriminatory and use objective

standards. We have, therefore, reviewed

the proposed examination, as it is to be

administered, both to determine whether

it is sufficiently objective to meet

the requirements of state law, as well

as being non-discriminatory within the

Fourteenth Amendment and other controlling

B-12

APPENDIX B

Federal law. We find that it meets both

standards. There is no merit to inter-

venors' argument that Examination No. 36-

435 uses insufficiently objective stand-

ards to satisfy state law. The standards

are set forth in paragraph-long descrip-

tions that relate specifically to the

duties of correction officers. Further-

more, the intervenors' contention of non-

objectivity, is belied by the result of

statistical testing of the standards

that produced an inter-rater reliability

coefficient of .80 out of 1.00, indicat-

ing that the raters understood the stand-

ards in nearly the same way as each other

-- a fundamental demonstration of "objec-

tivity". Affidavit of Kenneth L. Siegal,

{| 3 (October 16, 1979).

B-13

APPENDIX B

Accordingly, the motion for summary

judgment and the application to have the

submitted order signed are granted.

It is so ordered.

DATED: New York, New York

January 21, 1980

MORRIS E. LASKER

U.S.D.d.

B-14

APPENDIX B

FOOTNOTES

29 C.F.R. §§ 1607.1 et seq. (1979).

These Guidelines were affirmed as

controlling here by the Second Cir-

cuit. 520 F. 2d 420, 426 (2d Cir.

1975).

In a letter to the court, the inter-

venors argue that the decision in

Fulltlove v. Beame, 48 N. Y. 2d 376

(1979), mandates that the 250 points

addition to the scores of Blacks and

Hispanics cannot be approved. In

Fulltlove, the court voided execu-

tive orders of Governor Carey and

former Mayor Beame directing the con-

struction industry to implement af-

firmative action hiring programs to

increase the number of minority and

women workers because the executive

branch of New York government had

no authority "to initiate affirma-

tive action without legislative auth-

Orization." That case is distin-

guishable for two reasons: first,

turning on the authority vested in

the executive branch of the state

government, Fullilove bears no rele-

vance to the authority of a district

court implementing the mandate of

the Second Circuit to order a remedy

to the violation of the federal con-

stitution and anti-discrimination

laws. Second, even if Fullilove

were relevant here, as noted earlier,

B-15

APPENDIX B

the addition of 250 points is not

equivalent to the setting of a

quota, as intervenors claim. Rather,

the adjustment of the scores of min-

ority applicants is more aptly char-

acterized as the type of action ap-

proved by the court "which ‘only

would enlarge the pool of persons

eligible for employment based on

discrimination-free merit selection'”

(quoting Brotdrick v. Lindsay, 39

N. Y. 2d 641, 649 [1976]).

C-l1

APPENDIX C--ORDER AND JUDGMENT,

JANUARY 21, 1980.

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF NEW YORK.

EDWARD L. KIRKLAND, et al.,

Plaintiffs,

-against-

THE NEW YORK STATE DEPARTMENT OF

CORRECTIONAL SERVICES, et al.,

Defendants,

-and-

ALBERT RIBIERO and HENRY L. COONS,

Intervenors-

Defendants,

-and-

DENNIS FITZPATRICK, et al.,

Intervenors-

Defendants.

73 Civ. 1540 (MEL)

C-2

APPENDIX C

Defendants having filed their re-

port entitled "Correction Sergeant Selec-

tion System: Validity and Ethnic Effect"

with Appendices "1" through "3" in sup-

port. of the criterion validity of Exam-

ination No. 36-435 and in compliance with

paragraphs "3" and "6" of the Order and

Decree dated July 31, 1974, affirmed in

relevant part by the United States Court

of Appeals for the Second Circuit on

August 6, 1975, and the affidavits of

Kenneth L. Siegal sworn to September 26,

1979, and October 16, 1979, the supple-

mental affidavit of Kenneth L. Siegal

sworn to December 3, 1979, the affidavit

of Richard S. Barrett sworn to December

7, 1979, and the letter dated January 11,

1980 from Leroy D. Clark; and plaintiffs

having no oppcsition thereto; and proposed

C-3

APPENDIX C

intervenors-defendants having filed a

complaint on or about October 3, 1979

with Exhibits "A" and "B" and the sup-

porting affidavits of Dennis Fitzpatrick,

sworn to October 2, 1979, Vincent

DiGiorgio, sworn to October 2, 1979,

Robert Vercile Rose, sworn to October 2,

1979, Raymond E. Friss, sworn to October

2, 1979, Ronald Van Deusen, sworn to

November 28, 1978, Paul Murphy, sworn to

December 6, 1978, John Casey, sworn to

November 25, 1978 and Raymond Cornelison,

November 28, 1978; and the court having

afforded the parties an opportunity to be

heard on September 26, 1979, and November

9, 1979, and the plaintiffs and defend-

ants on December 12, 1979 having moved

for summary judgment dismissing the

Fitzpatrick intervenors' complaint, and

C-4

APPENDIX C

the court having granted that motion, and

after due deliberation, it is

ORDERED AND ADJUDGED:

1. Proposed intervenors Dennis Fitz-

patrick, Frank McDonnell, Bruce Farrell,

Thomas Farron, Vincent DiGiorgio, Robert

Vercile Rose, Raymond E. Friss and Bruce

Meservey are permitted to intervene.

2. Examination No. 36-435 is ap-

proved as criterion valid under the Uni-

form Guidelines on Employee Selection

Procedures as promulgated in 43(166) Fed.

Reg. 38290 et seq. (August 25, 1978).

3. Examination No. 36-435 is a com-

petitive examination under the New York

Constitution Article Vv, §6, and Civil

Service Law §§50(1), (2), 52.

4. The scoring of candidate perform-

ance on Examination No. 36-435 shall

C=-5

APPENDIX C

incorporate the concept of fairness, or

differential validity, set forth in the

Uniform Guidelines §14(B), (8) (a), (da),

433(166) Fed. Reg. 38301 (August 25, 1978)

and in the Regulations of the Department

of Civil Service §67.1(g), and defendants

shall add 250 points to the composite

scores (weighted raw score as set forth

in Table 5 of the report) for Black and

Hispanic candidates on Examination No.

36-435 to implement this concept.

5. The eligible list resulting from

Examination No. 36-435 shall supersede

all outstanding eligible lists for Cor-

rection Sergeant, including the eligible

list for Correction Sergeant (Male) that

resulted from the interim selection pro-

cedure authorized by the Orders dated

C-6

APPENDIX C

July 31, 1974, April 19, 1976, June 2,

1977 and July 21, 1977.

6. The eligible list resulting from

Examination No. 36-435 shall be estab-

lished no later than October 22, 1979 and

shall remain in full force and effect for

four (4) years from its establishment as

authorized by Civil Service Law §56.

7. This Order and Judgment shall

not be used by defendants as evidence of

the validity of any selection procedure

other than Examination No. 36-435.

8. The court retains jurisdiction

over this cause for the purpose of hear-

ing all matters pending.

DATED: New York, New York

January 21, 1980

/s/MORRIS E. LASKER

U.S.D.d.

D-1

APPENDIX D--ORDER, AUGUST 22, 1979.

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF NEW YORK.

EDWARD L. KIRKLAND and NATHANIEL

HAYES, et al.,

Plaintiffs,

-agatnst-

NEW YORK STATE DEPARTMENT OF CORRECTIONAL

SERVICES, etal.,

Defendants.

7a Civ. 1548 M.B.L-

A conference having been held July

23, 1979, in the chambers of Honorable

Morris E. Lasker, attended by Judith Reed

and Deborah Greenberg, attorneys for

plaintiffs, Patricia Armstrong, for At-

torney General Robert Abrams, attorney

D-2

APPENDIX D

for defendants, Patrick Fish, attorney

for defendant Department of Correctional

Services, Jeffrey G. Plant, attorney for

Intervenors, and Messrs. John Van de Car,

Peter Brown and Arthur Rabideau, all of

the New York State Department of Correc-

tional Services; in accordance with my

oral direction at pages 30-31 of the

transcript of said hearing, it is hereby

ORDERED that by not later than

September 7, 1979, defendant Civil Serv-

ice Commission submit to attorneys for

all parties the results of Examination

36-435, together with such analyses of

the results of the examination as are

completed by that date.

DATED: New York, New York

August 22, 1979

s/MORRIS E. LASKER

United States District Judge

Southern District of New York

E-1

APPENDIX E--OPINION OF DISTRICT COURT.

IN THE UNITED STATES DISTRICT COURT

For THE SouTHERN District or New York

73 Civ. 1548

Epwarp L. KirKLANp, et al., Plaintiffs,

~- Vv.

New York State DEPARTMENT OF

CORRECTIONAL SERVICES, et al., Defendants.

Filed: April 2, 1974

LASKER, District Judge:—This suit

is another in an ever-extending series

of challenges to civil service examina-

tions. Plaintiffs, who are Correction

Officers,' provisionally appointed to

the rank of Correction Sergeant

(Male), contend that the test for pro-

motion and permanent appointment

to that position discriminated against

them on the basis of race. They seek

to represent all Black and Hispanic

Correction Officers and _ provisional]

Correcton Sergeants who failed the

examination, who passed it but

ranked too low to be appointed or

who were deterred by the appoint-

ment system from seeking promotion.

Defendants are the New York State

Department of Correcitonal Services,

its Commissioner, and the New York

State Civil Service Commission and its

Commissioners.

The action is brought under the

Fifth and Fourteenth Amendments to

1 Originally, there was a third named plain-

tiff, the Brotherhood of New York State

Correction Officers, Inc. However, this plain-

ached at the commencement of the

trial.

ad

E-2

the Constitution and under the Civil

Rights Act (42 U.S.C. §§1981 and

1983) and its jurisdictional counter-

part (28 U.S.C. § §1343(3) and (4)).

Plaintiffs make no claim under Title

VII of the Civil Rights Act of 1964

(42 U.S.C. § § 2000e-2000e-17), de-

spite the availability, by recent

amendment, of remedies under it

against states and municipalities (id.

at § 2000e(a)).2

2 Defendants urge us to apply the doctrine

of primary jurisdiction and defer the case to

the Equal Employment Opportunity Commis-

sion on the theory that by extending Title

VII to cover states and municipalities Con- .

gress intended to oblige persons seeking re-

dress against governmental discrimination in

employment to resort in the first instance

to the EEOC. This contention has been re-

soundingly rejected in cases involving suits

against private employers under 42 U.S.C.

§ 1981. Macklin v. Spector Freight Systems,

Inc., 478 F.2d 979, 996-97, 5 FEP Cases 994

(D.C. Cir. 1973); Brady v. Bristol-Meyers,

Inc., 459 F.2d 621, 623-24, 4 FEP Cases 749

(8th Cir. 1972); Caldwell v. National Brewing

Co., 443 F.2d 1044, 3 FEP Cases 600 (5th Cir.).

cert. denied, 405 U.S. 916, 4 FEP Cases 324

(1971); Young v. International Telephone &

Telegraph Co., 438 F.2d 757, 763. 3 FEP Cases

146 (3rd Cir. 1971); Sanders v. Dobbs Houses,

Inc., 431 F.2d 1097, 1100-1101, 2 FEP Cases 942

(Sth Cir. 1970), cert. denied. 401 U.S. 948

(1971). Furthermore, cases in this Circuit in-

volving suits which, like the instant case,

were brought under §1938 hold that the

amendment to Title VII was not intended

to foreclose recourse to the earlier Civil Rights

Act. Vulcan Society v. Civil Service Commis-

sion, 6 FEP Cases 1045, No. 73-2287 (2d Cir.,

Nov. 21, 1973), slip op. at 449, n.1; Bridgeport

Guardians, Inc., v. Bridgeport Civil Service

Commission, 482 F.2d 1333, 1334, n. 1, 5 1EP

Cases 1344 (2d Cir. 1973),

E-3

In spring, 1972, the 1970, eligible list

for Sergeant appointments was ex--

hausted. To fill needed positions

pending establishments of a new list,

the Department of Corrections ap-

pointed provisional Correction Ser-

geants, in August, 1972, to hold their

posts until permanent appointments

could be made. Both named plaintiffs

were appointed at that time. |

Upon request of the Department of

Corrections, the Civil Service Commis-

sion prepared a promotional exami-

nation which was administered on Oc-

tober 14, 1972. That examination, 34-

944, was taken and failed by plain-

oo and is the subject of this ac-

on.

34-944 was taken by 1,383 persons,"

including 1,264 whites, 103 Blacks and

16 Hispanics. The candidates exami-

nations were graded and the passing

grade was established at 70%. After

adjustment for veteran’s preference

and seniority. those who passed were

ranked by grade and an eligible list

was promulgated on March 15, 1973.

On April 10, 1973, this suit was filed

and a temporary restraining order en-

tered preventing defendants from

making appointments from the list

and from terminating the provision-

3’ The total candidate pool was approxt-

mately 1,441. However, for reasons not ap-

parent from the record, the computer dis-

play provided by defendants to describe can-

didate performance (PX-12) indicates the

performance of only 1,383 candidates. Since

both parties have based their calculations on

that figure, we will do likewise.

E-4

al appointments of plaintiffs or mem-

bers of the class. By modification and

stipulation, the restraining order was

extended to maintain the status quo

until a decision on the merits.

The ground rules for cases such as

this have been thoroughly elucidated

by recent decisions of the Court of

Appeals for this Circuit. We note in

particular Vulcan Society of the New

York City Fire Department, Inc. v.

Civil Service Commission (‘‘Vulcan’’),

6 FEP Cases 1045, Civ. Nos. 73-2287

and 2317 (Nov. 21, 1973), aff’g 360

F.Supp. 1265, 5 FEP Cases 1229 (S.D.

N.Y. 1973); Bridgeport Guardians, Inc.

v. Bridgeport Civil Service Commission

(“Guardians”), 482 F.2d 1333, 5 FEP

Cases 1344 (2d Cir.), aff’g in part and

rev’g in part 354 F.Supp. 778, 5 FEP

Cases 570 (D. Conn. 1973); and

Chance v. Board of Examiners

(“Chance”’), 458 F.2d 1167, 4 FEP Cases

596 (2d Cir. 1972), aff’g 330 F.Supp.

203, 3 FEP Cases 672 (S.D.N.Y.

_ 1971). To summarize the approach

adopted by the cases, plaintiffs must

first establish a prima facie case

showing that the examination has

had “a racially disproportionate im-

pact.” Vulcan, slip op. at 453; Castro v.

Beecher (‘‘Castro”), 459 F.2d 725, 732,

4 FEP Cases 1223 (lst Cir. 1972). If

they succeed, it then becomes defend-

ants’ burden to justify the examina-

tion’s use despite its differential im-

pact by proving that it is job-related

(Vulcan, slip op. at 453) and that

any disparity of performance results

solely from variance in qualification

E=-5

and not from race (Griggs v. Duke

Power Co., 401 U.S. 424, 430-31. 3 FEP

Cases 175 (1971); Chance. 330 F.Supp.

at 214). Discharging this burden

would entitle defendants to judg-

ment; failure would, of course, require

the court to take the third step of de-

termining what remedy would be ap-

propriate.

As is typical cases of this type,

plaintiffs do not allege that defend-

ants have intentionally discriminated

against their class. Such an allega-

tion is not a necessary part of their

case. Chance, 458 F.2d at 1175-76. As

the Supreme Court stated in Griggs:4

“[GJood intent or absence of discri-

minatory intent does not redeem em-

ployment procedures or testing mechan-

isms that operate as ‘built-in head-

winds’ for minority groups and are un-

related to measuring job capability.” 401

U.S. at 432, 3 FEP Cases at 178.

However, the fact that the alleged

discrimination is not claimed to be de-

liberate modifies the burden placed

on the state to justify its actions.

Intentional racial discrimination

would require the state to demon-

strate a compelling necessity for its

selection methods. Cf. Loving v. Vir-

ginia, 388 U.S. 1 (1967): Yick Wo v.

Hopkins, 118 U.S. 356 (1886). How-

ever, “the Supreme Court has yet to

4 Griggs arose under Title VII of the Civil

Rights Act of 1964; however, the same ap-

roach to employment discrimination § cases

fas generally been followed in § 1983 cases

as in Title VII cases. Vulcan, slip op. at 459,

n. 9; Castro, 459 F.2d at 733.

E-6

apply that stringent test to a case

such as this, in which the allegedly

unconstitutional action unintention-

ally resulted in discriminatory ef-

fects.” Chance, 458 F.2d at 1177, 4

FEP Cases at 603. Agonizing over

whether the state can discharge its

constitutional obligations merely by

suggesting a rational basis for the ex-

amination’s use or whether it must

satisfy a more demanding standard,

short of the compelling interest test,

is unnecessary. The guidelines have

been so refined by the cases that no

ambiguity obscures the road to de-

termination regardless of difficulties

of classification which may remain to

plague the theorists. Guardians, 482

F.2d at 1337. The decisions im-

pose on the state ‘a heavy burden of

justifying its contested examinations

by at least demonstrating that they

were job-related.’”’ Chance, 458 F.2d at

1176, 4 FEP cases at 604; see also

Guardians, 482 F.2d at 1337. This

“heavy burden” is discharged if the

state “come(s] forward with con-

vincing facts establishing a fit be-

tween the qualification and the job.”

Vulcan, slip op. at 456, quoting Castro,

459 F.2d at 732. Once the state proves

its case to that extent, it need not es-

tablish, as would be required under

the compelling interest approach, that

no alternate means of selection are

open to it. Castro, 459 F.2d at 1733;

see also Vulcan, slip op. at 456.

However clearly the issues are de-

lineated by well-established prece-

dent, nothing can make easy the task

E~7

Of deciding a case such as this. The

competing interests are vita] to the

named parties, to other individuals

who may be affected by the outcome

and to the public at large. Plaintiffs

Strive to insure for themselves and

the minorities they seek to represent

the fair treatment in the public em-

ployment sphere which the Constitu-

tion guarantees. Their efforts bring

them into conflict with those individ-

uals who passed the Challenged ex-

amination and have a vested interest

in securing the promotions which are

rightfully theirs if the examination is

upheld. For both groups, the outcome

is critical since it affects their ability

to earn a living by advancing in the

profession of their choice. Last and

perhaps most important is the pub-

lic’s stake in establishing and main-

taining a system of prison adminis-

tration which is both competent and

representative of the population. As

members of the public, we include, of

course, the inmates of the prison sys-

tem who, more than anyone else in

the community, are directly affected

by the quality of correctional supervi-

Sion. The delicacy of the decision is

further compounded by the potential

for heightened tension which attends

any direct conflict along racial and

Cultural lines.

Bearing these factors in mind, we

proceed, with caution but without

more ado, to a_ consideration of

plaintiffs’ prima facie case.

E-8

I. Disproportionate Impact

Plaintiffs rest their case on the fol-

lowing uncontested statistics. The

figures computed by defendants in-

dicate that White candidates passed

34-944 at a rate of 30.9%, while only

7.1% of Black candidates and 12.5%

of Hispanic candidates achieved a

passing score. (Transcript at 500).

That is, Whites passed at a rate an-

proximately four times that of Blacks

and 2.5 times that of Hispanics. De-

fendants concede the statistical sig-

nificance of these differences. (Post-

trial Memorandum at I-4.)

.Plaintiffs’ evidence reveals an even

more startling disparity among those

who ranked high enough to be ap-

pointed. The Department of Cor-

rections intends to appoint a maxi-

mum of 147 persons from the present

eligible list.56 A computer display of the

results of 34-944 (PX-12) reveals

that, of 159 persons who scored 57 or

above (a group large enough to satis-

fy the Department’s projected needs),

157 were White, two were Black and

none were Hispanic. Thus, 12.5% of

the Whites who took 34-944 are likely

% The Department of Corrections appointed

87 persons from the eligible list based on 34-

944 in April, 1973. (PX-2, answer to Interrog-

atory No. 39.) On May 29, 1973, the Department

indicated that it intends to make another 40-

60 appointments from the list within roughly

two years from that date. (PX-2, answer to

Interrogatory No. 40.) Thus, a maximum of

147 persons will be appointed through May of

1975. No appointments are likely after that

date, since another promotional exam will be

given in 1974 (PX-42, p.4., 7th par.) and the

eligible list from 34-944 will therefore expire

in 1974 or early 1975.

E-9

to be appointed, while only 1.9% of

Black candidates and no Hispanics

have a chance at appointment. These

results would lead to the appoint-

ment of Whites at 6.5 times the rate

of Blacks and wouid bar completely

the appointment of Hispanics.

The statistical significance of these

figures is established beyond dispute

by the earlier cases. In Chance,

Guardians and Vulcan, the impact was

less drastically disproportionate

among the races. In Chance, the pass-

ing rate for Whites was 1.5 times that

of Blacks and Hispanics (330 F.Supp.

at 210); in Guardians, Whites passed

at 3.5 times the rate for Blacks and

Hispanics (354 F.Supp. at 784): and

in Vulcan, Whites scored high enough

to have a chance at appointment at

2.8 times the rate for Blacks and His-

panics (360 F.Supp. at 1269).

Defendants do not challenge the ac-

curacy of plaintiffs’ figures (for

which they are the source) nor do

they deny the statistical significance

of the differential impact indicated

by them, They contend, however, that

the approach taken by plaintiffs,

that is, consideration of the statistics

as to the statewide impact of the en-

tire exam, does not accurately reflect

the performance of the groups in

relation to each other. They urge us,

rather, to base our determination of

racial impact on the candidates’ per-

formances facility by facility ratner

than throughout the state. They con-

tend that otherwise it is impossible to

E-10

determine whether minority candi-

dates are succeeding less well as a

group because of their racial and cul-

tural backgrounds or because they

are located at facilities which, for

reasons unspecified, prepare their of-

ficers less well for the promotional

exam. In fact, the great majority of

minority candidates are located at Os-

Sining (82 Blacks out of a total of 104.

9 Hispanics out of a total of 16) with

the second largest concentration of

Blacks at Greenhaven (8). (PX-12,

codes 1007 and 1008.) Defendants ar-

gue that if both Whites and minority

candidates at Ossining perform less

well than persons—White, Black or

Hispanic—employed at other facili-

ties, then 34-944 has not been shown

to differentiate on the basis of race.

Second, defendants content that,

Since 34-944 is composed of five sub-

tests, comparative performance on

each subtest should be determinative

rather than performance on the test

as a whole. If these approaches are

adopted, they claim, the three groups

of candidates will be shown not to

have performed sufficiently differ-

ently to make out a prima facie case

of disproportionate impact.

To support their argument that the

results of 34-944 are relevant only if

separated by facility, defendants rely

on an analysis of the computer dis-

play of examination results (PX-12)

drawn uv by Kenneth Siegel, the As-

sociate Personnel Examiner who was

responsible for the preparation of 34-

944. He analyzed the performances of

E-1l

the groups in terms Of mean scores

on the total exam and on each of the

five subtests at Ossining, Green Hay-

€n, all the other facilities and all the

facilities taken together (DX-DD).

The reason for selecting Ossining and

Green Haven for Special attention was

the concentration of minority candi-

dates at those facilities. Siegel’s writ-

ten analysis (DX-DD)} does not indi-

cate passing rates, but Only mean

scores. However. Siegel testified that

the difference in passing rates be-

tween Whites and Blacks at Green

Haven (Transcript at 511) and all

other facilities except Ossining is not

Statistically significant (Transcript at

509, 515). Based on Siegel’s testimonv.

defendants argue that as a result

plaintiffs’ prima facie case fails with

resvect to all facilities except Os-

sining.

The principal obstacle to accepting

defendants’ analysis is that it is

premised on assumptions which are

factually erroneous. Their own statis-

tics bely their theory. Siegel’s analysis

(DX-DD) of the computer display

(PX-12) reveals not only that the

mean score for Whites state-wide

(48.9) is superior to that of Blacks

(43.2) and Hispanics (44.2), but also

that the mean scores at Ossining,

Green Haven and other facilities con-

sidered separately reflect the same

pattern. Whites at Ossining achieved

a mean score of 47.32, compared with

E-12

42.96 for Blacks and 41.56 for His-

panics. The disparity at Ossining is

virtually identical to that derived

from a comparison of state-wide fig-

ures for Whites and Blacks (48.9 to

43.2) and is greater than the state-

wide difference between Whites and

Hispanics (48.9 to 44.2). This effec-

tively refutes defendants’ theory that

minority candidates generally per-

formed less well than Whites solely

because they were concentrated at

Ossining where candidates as a whole

did less well. The range at Green

Haven is almost as striking and in-

dicates again a greater variance than

is found state-wide between Whites

and Blacks and an almost identical

disparity as that found state-wide be-

tween Whites and Hispanics: Whites,

48.68; Blacks 42.00; Hispanics, 44.00.

A comparison of results at facilities

other than Ossining and Green Haven

bears out the trend: Whites, 49.00:

Blacks, 45.21; Hispanics, 48.17. It is

true that Hispanics at these facilities

fared better than at Ossining and

Green Haven and their scores more

Closely approximate the performence

of Whites. However, the importance of

this discovery is somewhat discounted

by the small size of the sample (6

Hispanic candidates) which de-

creases the possibility of statistical ac-

Curacy (Transcript at 936-37). Fur-

thermore, Siegel’s analysis indicates

that the standard deviation in mean

scores between Whites and Blacks

was Statistically significant at Os-

Sining, Green Haven and all other 7a-

E-13

cilities as well as state-wide, and the

same is true of Whites and Hispanics

at Ossining where the largest concen-

a Of Hispanics is found. (DX-

_ An analysis of passing rates, which

1S more appropriate since it is the

passing score which determines a

candidate’s eligibility for appoint-

ment, is even more _ illuminating.

Siegel testified that there was a sig-

nificant difference between the pass-

ing rates of Whites and Blacks at Os-

sining (Transcript at 509), but that no

such difference existed between

Whites and Blacks at Green Haven

and facilities other than Ossining and

Green Haven and none between

Whites and Hispanics at Ossining.

or other facilities. (Transcript at

909-515.) He did not compare

the passing rates of Whites and

Hispanics at Green Haven because

there was only one Hispanic candi-

date at that facility. (Transcript

at 511.) Nor did he testify as to the

difference between the passing rates

of Whites and Hispanics at facilities

other than Ossining and Green Haven.

Siegel is correct that the disparity in

passing rates between Whites and

Blacks at Ossining is significant:

Whites passed at a rate of 23.5% and

Blacks at a rate of 4.9%. (PX-33.)

However, his testimony as to Blacks

at Green Haven and at other facili-

ties and as to Hispanics at Ossining

flies in the face of the figures in evi-

dence. To the contrary, comparison of

E-14

the groupings mentioned above indi-

cates in each instance a significant

disparity between the passing rate of

White and minority candiates. Whites

at Green Haven passed at a rate of

31.6%, while Blacks and Hispanics

achieved rates of only 12.3% and 0% ®

respectively. 30.7% of Whites at fa-

cilities other than Ossining and Green

Haven? passed 34-944, while only

14.3% of Blacks passed. Although His-

panics at facilities other than Os-

sining and Green Haven passed at a

higher rate than Whites (33.3% com-

pared to 30.7%), the reliability of this

computation is put in doubt by the

smallness of the sample. Hispanics at

Ossining, on the other hand, passed at

a rate of 0% compared to a White

passing rate of 23.5%. Accordingly,

contrary to Siegel’s conclusion, the

6Inasmuch as there was only one Hispanic

candidate from Green Haven, the importance

of this comparison should not be exaggerated.

7 The figures for White, Black and Hispanic

passing rates at facilities other than Ossin-

ing and Green Haven are not in the record,

but can be readily computed from those

which are in evidence (see PX-33). The num-

ber of Whites at “other facilities” is 1069

(1264, the total of White candidates, minus

195, which is the sum of White candidates

at Ossining, 81, and Green Haven, 114). The

number of Whites at “other facilities’’ who

passed is 328 (383 minus 55, the sum of 19

at Ossining and 36 at Green Haven). Ac-

cordingly, the passing rate is 30.7%. Blacks

at “other facilities’ number 14 (103 minus

89, which is 81 at Ossining and 8 at Green

Haven). Two Blacks at “other facilities’

passed (7 minus 5). As a result, the passing

rate is 14.3%. There were six Hispanics at

“other facilities’ (16 minus 10, nine at Os-

sining, one at Green Haven). Two passed and

the rate is 33.3%.

E-15

disparity between White and minor-

ity candidates was Significant with

regard to Blacks at Ossining, Green

Haven and all other facilities, as well

as State-wide, and was Significant

with regard to Hispanics at Ossining,

where the largest number of His-

panics are located.

These computations destroy the

factual premise of defendants’ argu-

ment that minority performance re-

flects the facilities in which they con-

centrated rather than their minority

characteristics. We would in any event

be forced to reject defendants’ theory

as a matter of law, even if it could

be factually substantiated. Attempts

to correlate racial performance to

such non-racial characteristics as

quality of schooling or educational

and cultural deprivation have been

rejected as irrlevant to rebut a statis-

tical prima facie case. As the district

court opinion in Guardians stated:

“More fundamentally, this data [as to

quality of schooling] fails to remove the

rima facie showing of discrimination

ecause it does not alter but only tries

- to explain the difference in passing rates.”

354 F.Supp. at 785, 5 FEP Cases at 575;

see also Vulcan, 360 F.Supp. at 1272. Cf.

Castro supra.

The controlling decisions clearly posit

that, in order to shift to defendants

the burden of showing that perform-

ance on the examination correlates to

performance on the job, plaintiffs are

required to do no more than demon-

strate that minority candidates as a

ae

—_

E-16

whole fared significantly less well

than White candidates, regardless of

possible explanations for their poorer

performance. To quote Guardians

once more:

“The point is that a discriminatory test

result cannot be rebutted by showing

that other factors led to the racial or

ethnic classification. The classification it-

self is sufficient to require some adequate

justification for the test.” Id at 786, 5

FEP Cases at 575.

Finally, we fail to understand the

relevance of defendants’ attack on

plaintiffs’ prima facie case. Defend-

ants appear to coneede that, at the

very least, Blacks at Ossining who

failed 34-944 have established their

right to challenge its jicb relatedness.

(Post-trial Memorandum at I-11).

This group constitutes two-thirds of

the proposed plaintiff class (77 out of

117 Blacks and Hispanics combined),

but if even a far smaller number had

succeeded in proving disproportionate

impact detrimental to themselves, de-

fendants would be obliged, as they

themselves concede, to prove job re-

latedness.

We turn to defendants’ second

challenge to plaintiffs’ case. Siegel’s

analysis of the computer display in-

dicates that although there is a sta-

tistically significant difference in the

total mean scores of Whites and

Blacks and Whites and Hispanics

E-17

State-wide and at Ossining, and, as to

Blacks, at Green Haven and facilities

other than Ossining and Green Haven,

not every subtest indicates such a dis-

parity. (DX-DD.) It is unnecessary

to detail the permutations sub-test by

sub-test and facility by facility, since

the suggested approach itself is in-

valid as a matter of law. The cases

indicate that a showing that the over-

all examination procedure produced

disparate results cannot he rebutted

by fragmenting the process and dem-

onstrating that separately the parts

did not differentiate along racial or

cultural lines. In Chance, for exam-

ple, the fact that minority candidates

had a higher passing rate than White

candidates on seven out of fifty ex-

aminations did not vitiate plain-

tiffs’ proof that the series of exami-

nations as a whole discriminated

against them and their class. 330

F.Supp. at 211; see also Guardians, 354

F.Supp. at 786. In Vulcan, the very

question whether a single examina-

tion procedure can properly be sub-

divided and the parts considered sep-

arately, was raised and Judge Wein-

field rejected the proposition:

“Moreover, the examination may not

be truncated; whether or not it has an

adverse discriminatory impact on minority

groups should be considered in terms of

the total examination procedure. Here

there can be no doubt, whatever the rela-

tive impact of component parts, that in

end result there was a significant and

substantial discriminatory impact upon

minorities. . . .” 360 F.Supp. at 1272, 5

FEP Cases at 1234.

E-18

Any other approach conflicts with

the dictates of common _— sense.

Achieving at least a passing score on

the examination in its entirety de-

termines eligibility for appointment,

mk gba of performance on individ-

ual subtests. Accordingly, plaintiffs’

case stands or falls on comparative

passing rates alone, Thus, in law and

in logic, we find defendants’ ap-

proach unwarranted.

Rejection of defendants’ dual at-

tack on plaintiffs’ showing of differ-

ential impact leaves no doubt that

plaintiffs’ prima facie case has been

amply estabished. Accordingly, the

burden of proof swings to defendants

to demonstrate that 34-944 is job-

related. We turn to a consideration of

that question.

II. Job-Relatedness

“Validation” is the term of art for

designating the process of determin-

ing the job-relatedness of a selection

procedure, Cases and official gulde-

lines recognize three validation meth-

ods: criterion-related validation, con-

struct validation and content valida-

tion. See, e.g., Vulcan, slip op. at 458-

61; Guardians, 482 F.2d at 1337-38 and

354 F.Supp. at 788-89; Equal Employ-

ment Opportunity Commission Test-

ing and Selecting Employees Guide-

lines (“EEOC Guidelines”), 29 C.F.R.

§ 1607, at $1607.5(a); American

Psychological Association Standards

for Educational & Psychological

Tests and Manuals (“APA Standards”)

(PX-26) at 12-13.

E-19

A, Criterion—Related Validation.

Decisions in this Circuit and the

EEOC Guidelines agree that criterion-

related or empirical validation is

preferable to other validation meth-

Ods. Guardians, 482 F.2d at 1337 and

354 F.Supp. at 788: Vulcan, 360 F.Supp.

at 1273; EEOC Guidelines at § 1607.5

(a). In Vulcan, Judge Weinfeld de-

fined the two methods which are sub-

i under the criterion-related

rubric:

“Predictive validation consists of

a comparison between the examination

scores and the subsequent job perform-

ance of those applicants who are hired.

If there is a sufficient correlation be-

tween test scores and job performance,

the examination is considered to be a valid

or job-related one. Concurrent validation

requires the administration of the exami-

nation to a group of current employees

and a comparison between their relative

Scores and relative performance on the

oe 360 F.Supp. at 1273, 5 FEP Cases at

The methodology which unites the

two types of criterion-related valid-

ity requires two fundamental] steps:

“Criteria must be identified which in-

dicate successful job performance. Test

scores are then matched with job per-

formance ratings for the selected criteria.”

rls +: nae 482 F.2d at 1337, 5 FEP Cases

‘

The EEOC’s minimum standards for

validation (EEOC Guidelines at

§ 1607.5) require an employer to un-

dertake criterion validation if it is

E-20

feasible. They demand “empirical evi-

dence in support of a test’s validity

.. . based on studies employing gen-

erally accepted procedures for deter-

mining criterion-related validity,

such as those described in [APA

Standards)”. Id. at subdiv. (a). They

state further that “[e]vidence of

content or construct validity, as de-

fined in that publication, may also

ibe appropriate where criterion-re-

lated validity is not feasible.” Id.

Because this case was not brought

under Title VII and no resort has

been made to the EEOC as would be

required under the 1964 Act, the Com-

mission Guidelines are not binding

and cannot finally resolve the issue

whether criterion-related validation

is required. However, the Guidelines

are recognized as relevant and use-

ful as a “helpful summary of profes-

sional testing standards” (Vulcan, slip

op. at 457-58, n. 8, 6 FEP Cases at

1049) and as “persuasive standards

for evaluating claims of job-related-

ness” (Vulcan, 360 F.Supp. at 1273, n.

23, 5 FEP Cases at 1235).8

& See also Carter v. Gallagher, 452 F.2d 315,

320, 326, 3 FEP Cases 900 (8th Cir. 1971),

adopted in relevant part, 452 F.2d 327, 4 FEP

Cases 121 (8th Cir.) (en banc), cert. denied,

406 U.S. 950, 4 FEP Cases 771 (1972); Fowler

v. Schwarzwalder, 351 F.Supp. 721, 724, 5 FEP

Cases 270 (D. Minn. 1972): Pennsylvania v.

O'Neill, 348 F.Supp. 1084, 1103, 5 FEP Cases

277 (E.D. Pa. 1972), aff'd in relevant part by

an equally divided court, 473 F.2d 1029. 5 FEP

Cases 713 (3d Cir. 1973) (en banc): Western

Addition Community Organization v. Alloto.

Ae eae 1351, 4 FEP Cases 792 (N.D. Cal.

).

EB-21

Notwithstanding the Guidelines’

mandate of criterion-related valida-

tion and despite Suggestions in some

cases that only that method suffices

to carry the burden of proof as to

job-relatedness (Vulcan, 360 F.Supp.

at 1273; Guardians, 354 F.Supp. at

789), no case in this Circuit has gone

So far as to hold that failure to test

an exam by criterion validation or to

demonstrate the nonfeasibility of that

approach justifies setting the exam

aside even if it has been content vali-

dated. Those cases which have indi-

cated a preference for criterion-re-

lated validation have also found a

lack of content and construct valida-

tion before striking down an exami-

nation. Furthermore, the Court of

Appeals for this Circuit has recently

abjured an absolutist approach, stat-

ing that “failure to use [criterion-

related validation] is not fatal.” Vul-

roe Slip op. at 459, 5 FEP Cases at

Defendants specifically admit that

34-944 has not been validated by the

criterion-related approach. (Trans-

cript at 389; PX-2> answer to inter-

rogatory 26.) However, in view of

Judge Friendly’s unambiguous state-

ment in Vulcan that criterion-re-

lated validation is not required if the

examination can be validated by other

means, we turn our attention to

the other validation methods.

B. Construct Validation.

The second recognized method of

validation is “construct validation.”

E-22

As defined by Judge Friendly in Vul-

can, this method “requires identifica-

tion of general mental and psycholog-

ical traits believed necessary to suc-

cessful performance of the job in

question. The qualifying examination

must then be fashionedsto test for the

presence of these general traits.’ 9

Slip op. at 460-61. We mention this

method only for the sake of com-

pleteness; none of the parties has in-

troduced evidence that its use would

be appropriate here or that its re-

quirements have been fulfilled.

C. Content Validation.

We reach finally the dispositive is-

Sue in the case: Have defendants

demonstrated that 34-944 is a content

valid examination?

Initially, it is essential to deter-

mine precisely what proof is neces-

Sary to satisfy the requirements of

content validity. Judge Weinfeld’s

definition in Vulcan reflects the prin-

Ciples established by case law and pro-

fessional publications:

“An examination has content validity

if the content of the examination matches

the content of the job. For a test to be

9 The common example which is given to

highlight the different characteristics of the

content and construct validation methods

involves an examination for the position of

typist. A content valid test would require

the applicant to type. In such an instance

the content of the job and of the exam is

identical. A construct valid approach would

identify certain traits essential to success as

a typist, such as ability to concentrate, per-

serverance and attention to detail, and would

examine the applicant for those traits. Vul-

can, slip op. at 460-61,

E-23

content valid, the aptitudes and skills re-

quired for successfu] examination per-

formance must be those aptitudes and

Skills required for successfu] job perform-

ance. It is essential that the examination

tests these attributes both in proportion

to their relative importance on the job and

at the level of difficulty demanded by the

job.” 360 F.Supp. at 1274, 5 FEP Cases

at 1236 (footnotes omitted). See also Vul-

ean, slip op. at 460; Guardians, 482 F.2d

at 1338.

Accordingly, defendants must dem-

onstrate not only that the knowledge,

Skills and abilities tested for by 34-

944 coincide with some of the knowl-

edge, skills and abilities required suc-

cessfully to perform on the job, but

also that 1) attributes selected for ex-

amination are critical and not mere-

ly peripherally related to successful

job performance; 2) the various por-

tions of the examination are accu-

rately weighed to reflect the relative

importance to the job of the attri-

butes for which they test: and 3) the

level of difficulty of the exam

matches the level of difficulty for the

job. In sum, to survive plaintiffs’

challenge, 34-944 must be shown to

examine all or substantially all the

critical attributes of the Sergeant po-

Sition in proportion to their relative

importance to the job and at the level

of difficulty which the job demands.

The problem which confronts the

trier of fact when charged with ap-

plying these principles to a given sit-

uation is that normally, and it is the

E-24

case here, he is expert neither in psy-

chometrics nor in the field in which

the examination is given. Neverthe-

less, he is required to make factual

determinations 1) whether the exami-

nation meets professionally accepta-

ble standards of technical adequacy

and 2) whether it has content valid-

ity for the job examined. (See EEOC

Guidelines, 29 CFR. at § 1607.5

(a).) 19 To overcome the obstacle pre-

sented by lack of expertise, the cases

have developed an approach which

minimizes the obvious dangers inher-

ent in judicial determination of con-

tent validity for a job about which the

judge has, at best, only superficial

knowledge. Judge Friendly described

with approval the approach taken by

Judge Weinfeld in Vulcan as follows:

“Instead of burying himself in a ques-

tion-by-question analysis of Exam 0159 to

determine if the test had construct or con-

tent validity, the judge noted that it was

critical to each of the validation schemes

that the examination be carefully pre-

pared with a keen awareness of the need

to design questions to test for particular

traits or abilities that had been deter-

mined to be relevant to the job. As we

read his opinion, the judge developed a

sort of sliding scale for evaluating the

examination, wherein the poorer the quali-

ty of the test preparation, the greater

must be the showing that the examina-

tion was properly job-related, and vice

10The EEOC Guidelines state: ‘Evidence

of content validity alone may be acceptable

for well-developed tests that consist of suit-

able samples of the. essential knowledge,

skills or behaviors composing the job in ques-

tion.’ 29 C.F.R. at § 1607.5(a).

E-25

versa. This was the point he made in

Saying that a showing of poor prepara-

tion of an examination entails the need

of ‘the most convincing testimony as to

job-relatedness.’ The jJudge’s approach

makes excellent sense to us. If an ex-

amination has been badly prepared, the

chance that it will turn out to be job-

related is small. Per contra, careful prep-

aration gives ground for an inference,

rebuttable to be sure, that success has

been achieved. A principle of this sort is

useful in lessening the burden of judicial

examination-reading and the risk that

a court will fall into error in umpiring a

battle of experts who speak a language

it does not fully understand. See Chance,

Supra. 408 F.2d at 1173.” Slip op. at 461, 6

FEP Cases at 1051. :

The primary emphasis, therefore, is

On the validity of the methods used

in creating the examination not on

the independent validity of the end

product.

Preparation of a content valid ex-

amination requires cooperation be-

tween subject matter experts who

provide content input and _ psycho-

metric experts who construct an ex-

amination using that input. It goes

without saying that the competence

of the people involved in the process

determines the qualify of the prod-

uct. The cooperative effort of these

two groups includes several stages:

1) Analysis of the job to isolate the

essential knowledge, skills and abili-

ties required by it; 2) determination

of the scope of the examination, the

method or methods of testing to be

E-26

employed and the weight to be given

different portions of the examination

process; 3) formulation of individual

items: and 4) establishment of the

passing point.

The cornerstone in the construction

of a content valid examination is the

job analysis. Without such an analysis

to single out the critical knowledge,

skills and abilities required by the job,

their importance relative to each

other, and the level of proficiency de-

manded as to each attribute, a test

constructor is aiming in the dark and

can only hope to achieve job related-

ness by blind luck. As Judge Weinfeld

stated in Vulcan:

“There is no dispute between the par-

ties that a thorough knowledge of the

job to be tested is necessary in order to

construct a content valid examination.

Without this knowledge it is impossible

to determine whether the content of the

examination is sufficiently related to the

content of the job to justify its use. The

means used to acquire this information is

known professionally as a job analysis—

really the beginning point. A job anal-

vsis is a thorough survey of the rela-

tive importance of the various skills in-

volved in the job in question and the de-

gree of comvetency required in regard

to each skill.” 360 F.Supp. at 1274, 5 FEP

Cases at 1236.

The persons charged with the re-

sponsibility for 34-944, Siegel and

Samuel Taylor, testified that, al-

though an adequate job analysis was

performed, it does not exist in docu-

mentary form. (Transcript at 362-63,

E-27

682-83.) Defendants contend, how-

ever, that the existence of such an

analysis is demonstrated by various

documents which are in evidence,

namely, a job audit (DX-E), KS &

All statements (PX-8), class specifi-

cations (PX-4) and the rule book

(DX-O). (Transcript at 362.) They ar-

gue further that the term “job

analysis” means “a series of opera-

tions or understandings, discussions

by which you identify what people

do and why and what can be tested

and what should be tested” (Tran-

script at 362-63) and as such is a

“process [that] cannot really be re-

duced to something called a job de-

scription” (Transcript at 363; see also

Transcript at 683). Accordingly, de-

fendants rely on the knowledge of the

job, either pre-existing or obtained

during the course of the preparation

Of 34-944, possessed by those who par-

ticipated in the examination’s con-

struction.

The difficulties presented by de-

fendants’ approach are manifold. Ac-

cepting their argument that a job

analysis need not be reduced to writ-

ing, it is nonetheless not persuasive

that an adequate job analysis existed

at some point in the minds of de-

fendants’ experts, if, at the present

time, they are unable to prove its ex-

istence. In fact, the existence of such

an analysis has not been proven. The

documents relating to the subject

11 “KS&A”" is the standard abbreviation for

“knowledge, skills and abilities.”’

E-28

which are in evidence do not even

approximate a professionally adequate

job analysis; the test constructors’

knowledge which was not committed

to writing is in some instances un-

proven and in others unimpressive,

and the reliance of the test construc-

tors upon various aspects of the pur-

ported job analysis is largely unestab-

lished. The logical, and indeed in-

evitable inference is that no adequate

job analysis was performed.

Since the existence of a job analysis

is of primary importance in reach-

ing a decision as to job-relatedness,

we will comment on defendants’ proof

on the subject at some length.

Although Samuel Taylor, Chief Per-

sonnel Examiner, testified that, in his

opinion, the job audit, KS & A state-

ments, class specifications and the

employee rule book together consti-

tuted a satisfactory job description

“that would be an adequate basis for

developing the examination” (Tran-

script at 362), these documents do

not satisfy the requirements of a

thorough job analysis as they have

been developed by the cases. The job

audit (DX-E) has such major flaws

that it is almost irrelevant to the

case; it was prepared for a purpose

other than exam preparation, it was

outdated at the time the exam was

prepared, and it was devoted almost

entirely to describing the position of

Correction Officer, not Correction

Sergeant. The audit was conducted in

order to determine whether various

E-29

jobs in the Correction Officer Series

should be upgraded for the Civil Ser-

vice Classification purpose of deter-

mining whether compensation for the

positions should be increased. (Tran-

Script at 353; PX-7.) 12 While a docu-

ment prepared independently of the

examination process is not per se dis-

qualified for consideration in prepar-

ing a job analysis, it cannot substi-

tute for an analysis having the specif-

ic goal of examination preparation in

mind. Furthermore, the job audit was

conducted in Spring, 1970 (Transcript

at 360), while 34-944 was administered

in October, 1972. Siegel, who was re-

Sponsible for 34-944, testified that

the Sergeant job changed within the

two years prior to the examination

dated. (Transcript at 533, see also PX-

42, p. 4.) The audit, almost in its en-

tirety, describes the Correction Officer

job. Such references as there are to

the Sergeant position do not approach

the type of depth of analysis which

is essential to the preparation of a

job-related test. The audit does not

indicate the relative importance of

the skills and tasks involved in the

Sergeant job or of the competency

required for the various aspects of

12 That the goal of the audit is not coex-

tensive and may even be inconsistent with

that of a Proper job analysis is demon-

Strated by the fact that, although the audit

concluded that the Sergeant position should

be reclassified to grade 17 (Transcript at

964; PX-4), the supervision subtest called for

questions appropriate to grades 10-14 and the

report preparation sub-test questions were

Reared to an entry level investigative posi-

tion (PX-8).

E-30

the position, both of which are essen-

tial functions of a job analysis. Fi-

nally, the persons who prepared the

audit did not participate in the

preparation of the exam, nor is their

competence to conduct the audit in

any way established by the record.

It is perhaps not surprising, in view

of the limited utility of the audit—

and this is perhaps the most critical

point to make on the subject—that it

was not consulted by the test con-

structors in formulating specific exam

items. (Transcript at 667-68.)

The other documents on which de-

fendants rely fare no better as sub-

stitutes for a job analysis. The class

specification (PX-4) is one paragraph

description of the position which con-

tains no more information than would

be possessed by anyone with only a

cursory knowledge of the job. It is a

useless document for the intended

purposes.

The same observation can be made

about the KS & A statements (PX-

8), which are descriptions of the five

examination subtests rather than of

the knowledge, skills and abilities de-

manded by the sergeant job. The

“definition of KS & A” which appears

for each subtest is a brief paragraph

which states, as starkly as possible, the

knowledge, skill or ability tested for,

without any indication of gradations

of complexity, context, methods or

anything which would indicate how

the knowledge, skill or ability oper-

ates in the actualities of the job. In

E-31

his deposition (a portion of which

was read into the record), Siegel

Stated that “[t]he K, S and A state-

ments are used as guidelines, in ef-

fect, in preparation of particular

items or of items in general on—in

that they represent the—the K, S and

A statements represent those relevant

portions of the position, let’s say,

which we wish to test and therefore

act as a guide in telling us the types

of items to write or select.” (Tran-

script at 665.) This description of the

use to which those documents were

put is not credible, because the state-

ments simply do not provide suffici-

ent particularity to aid in the con-

struction of specific items or even of

clusters of items. They are only

guidelines in the most general sense

of blocking out the scope of the exam.

Accordingly, it is not surprising that,

as Siegel admitted, items on the exam

were prepared before the KS & A

statements. (Transcript at 666.) As a

result, the statements are irrelevant

to the job analysis, both because they

are so lacking in detail as to serve no

useful purpose and because they were

not relied on. These phenomena are

readily explainable by the fact that

the KS & A statements were, in fact,

the end product of the job analysis

“process” rather than a component

part of it, or a summary rather than

a guideline. As Samuel Taylor stated,

in terms which squarely contradict

Siegel: “They [the test construc-

tors] didn’t rely on it [PX-8], be-

E-32

cause it didn’t exist before they went

through their process.” (Transcript at

348.)

Finally, the rule book ( DX-0) is ob-

viously not a job analysis or a part

of a job analysis. The rules them-

selves are, concededly, important to

the job, but what is important to the

analysis is how the rules are applied

and what depth of Knowledge is re-

quired, neither of which is indicated

by the rule book.

Defendants’ reliance on the Knowl-

edge of the sergeant job either pos-

sessed by the test constructors prior

to commencing work on 34-944 or ac-

quired by them during the course of

their work on it is also inappropriate.

The record does not establish that

the persons who worked on the exam,

three of whom came from the De-

partment of Corrections and three

from Civil Service, possessed the kind

of intimate knowledge of the job that

would enable them to do without a

job analysis, or would make them, as

Samuel Taylor claimed, “living job

descriptions” (Transcript at 362).

Of the three persons from the De-

partment of Corrections, only one, Hy-

lan Sperbeck, testified. His qualifica-

tion as a subject matter expert con-

sists of long service in the Depart-

ment. The respect to which years of

experience might normally be entitled

is greatly undercut in his case by the

fact that the type of assignments

which Sperbeck has held are not

necessarily conducive to enhance-

ment of his understanding of the

E-33

sergeant position. Sperbeck became a

Correction Officer in 1957, a Sergeant

In 1968, a Lieutenant in 1972 and a

Captain in 1973. (Transcript at 738.)

Since March, 1970, he has been as-

signed to the Training Academy and,

Since that time, he has spent only

five or six weekends and four con-

Secutive days in active line duty at

any of the facilities. (Transcript at

764-65.) The result is that Sperbeck

has been engaged in a normal super-

visory capacity at a facility only for

the two year period from 1968 to

1970, during which he was a Sergeant.

Given the changes which have oc-

Curred in the job since that time, his

experience, although useful, cannot

Substitute for a professionally accept-

able job analysis. The qualifications

as subject matter experts of the two

other persons from Corrections (other

than years of service) are not estab-

lished by the record.

Siegel and the two other persons

from Civil Service had no first-hand

knowledge of the Sergeant position,

although Siegel claims some familiar-

ity with the job from past experience

in preparing exams in the Correction

Officer Series. He also testified to

visits to Coxsackie and Matteawan,

but the importance of these visits

may not be overemphasized since the

visit to the latter was for a purpose

unrelated to 34-944 (in fact, there are

no sergeants at Matteawan (Tran-

Script at 541)), while the visit to the

former entailed only an hour or two

E-34

of discussion with Sergeants (Tran-

script at 546-47), and, in any event,

one day at a facility is hardly suffici-

ent to make someone an expert as to

the job. It is worthy of note, more-

over, that two of the five subtests

(40% of the exam) were prepared

solely by Civil Service personnel, other

than Siegel, without any input from

the subject matter “experts” from

Corrections. (Transcript at 367.)

Accordingly, the record does not es-

tablish that the knowledge and

qualifications possessed by the test

constructors was such that they can

simply be deemed to have had in their

heads a job analysis sufficient to

satisfy legal and professional require-

ments. Indeed, a contrary inference

is warranted by the record.

We conclude, therefore, that de-

fendants have failed to prove that

they performed an adequate job

analysis. The same lack of profes-

sionalism which characterized the

process by which defendants con-

ducted their job analysis also charac-

terized the manner in which they de-

termined the type of examination, its

scope, the weight of the subtests and

the passing point. All of these mat-

ters seem to have been decided al-

most as a matter of course by re-

ferring to and following the practices

established by prior exams.

The record indicates that the pro-

motional examination for the

Sergeant position has been for many

years a written, multiple choice ex-

amination. This was true at least as

E-35

to the examinations given in 1964,

1968, 1970 and 1972 (PX-43) 13 When

asked how the decision was reached

that the knowledge, skills and abilities

needed for the position of Correction

Sergeant could best be treated by a

written examination, Siege] Stated in

his deposition:

“{Ijt’s to a large extent, I suppose,

a decision of history, let’s say, where pre-

viously selections for this position have

been made by written examination and

I would assume that the request that we

received from the Department of Correc-

tional Services for this examination also

indicated request for a written examina-

tion.” (Transcript at 697.)

Somewhat more thought seems to

have gone into the decision not to use

performance ratings as any part of

the promotional process although

such use is permitted by state law

(Civil Service Law § 52(2)). (Tran-

script at 671-72.) Siegel and Taylor

Stated that they considered using su-

pervisory evaluations, but decided not

to because of the inadequacy of the

existing rating scale. (Transcript 381-

82, 672.)

Like the decision to use a written

examination and to exclude consid-

eration of supervisory evaluations, de-

termination of the scope and organi-

13 PX-43 describes the scope of prior exam-

inations given in 1964, 1968 and 1979. How-

ever, since Siegel testified that an exami-

nation was given in 1970 (Transcript at 531-

33) and since 34-944 was given in 1972, we

assume that 34-007. the last examination to

precede 34-944, was in fact given in 1970 and

hot in 1972.

E-36

zation of 34-944 seems to have fol-

lowed the pattern of earlier examina-

tions. Of course, if these set a model

for good construction and _ job-

relatedness, that would be a good ar-

gument not to depart from their

mold. However, while there 1s

evidence in the record of the discrimi-

natory impact of the earlier tests,

there is no evidence as to their job-

relatedness. Furthermore, even an

exam once job-related may become

out-dated as jobs change. At the very

least, it is fair to say that the slavish

imitation of earlier examinations

which we find in this case indicates

an alarming lack of independent

thought about how to assure that 34-

944 was job-related.

The scope of 34-944 was identical to

that of the 1964, 1968 and 1970 exami-

nations, except that some of the

earlier examinations included a sec-

tion on interpretation of written ma-

terials instead of or as well as the

section on preparation of written re-

ports found in 34-944. (Transcript at

530-32: PX-43.) The similarity is not

accidental; Siegel and Samuel Taylor

both testified that they relied heavi-

ly on prior scope statements in de-

fining the scope of 34-944. (Transcript

at 530-32, 659.)

Furthermore, the organization of

34-944 is virtually identical to that

of its predecessors. Both 34-944 and

the 1964 exam contain five subtests

of 15 items, while the 1968 and 197U

tests consist of 90 items, including

E=37

four Subtests of 15 items and one of

30 items. (PX-43 ) When asked why

each subtest on 34-944 was weighted

equally with 15 items of the same

value, Siege] replied: “By using a set

number of items in each sub test, we

are able to more ro'tinely do certain

types of analyses on this material

that gives us additional information

Of how the items are working, and

things like that.” (Transcript at 566.)

That this was a routine decision

based solely primarily on adminis-

trative convenience is further evi-

denced by his statement that “in our

department we work on the basis of

15 questions per sub test and we work

in constructing a test in sub test

units.” (Transcript at 700.) This prac-

tice, however, is not necessarily com-

patible with the notion that differ-

ent parts of the examination must be

weighted as nearly as possible to re-

flect the relative importance of the

attributes tested for to the jobasa

whole. This lack of individualization

in the framing of 34-944 is again

demonstrated by the fact that 60%. of

the items on the Sergeant exam were

also found on the Lieutenant exam

given at the same time. (Transcript

at 534-35.)

Finally, the decision to establish

the passing score of 70% subordinates

the goal of job-relatedness to that of

administrative convenience. Samuel

Taylor and Siegel stated that they set

the passing score at the maximum

permitted by law (Transcript at 524),

E-38

because that score would still permit

a sufficiently large group of passing

candidates to satisfy the employment

needs of the Department. (Transcript

at 380, 524-27.) As a result, Taylor ad-

mitted that “its function is really

more for the purpose of regulating

the number of people who will then

be in line to take the job than it is

to declare that a man is qualified or

not.” (Transcript at 341.) Although

this approach is not without justify-

ing logic, it departs from the require-

ment, imposed by law, that such de-

cisions be made so as to further the

paramount goal of job-relatedness.

Properly employed, the passing score

should serve to separate those who

are qualified for the job from those

who are not. (Transcript at 880-81.)

Admittedly, it did not serve that pur-

pose in this case.

The factors described above lead in-

escapably to the conclusion that the

procedures employed in constructing

34-944 do not conform to profession-

ally acceptable and legally required

standards. This determination may

be enough to justify a finding that the

examination is not job-related, with-

out regard to the quality of the ex-

amination, See Fowler v. Schwarz-

walder, 351 F.Supp. 721, 725, 5 FEP

Cases 270 (D. Minn. 1972); Western

Addition Community Organization v.

Alioto, 340 F.Supp. 1351, 1355, 4 FEP

Cases 772 (N.D. Cal. 1972). As Judge

Weinfeld stated in Vulcan: “It should

be self-evident that content validity

E-39

greatly depends upon the adequacy of

the manner in which the examina-

tion is prepared.” 360 F.Supp. at 1275,

9 FEP Cases at 1237. At a minimum,

“under these circumstances only the

most convincing testimony as to job-

relatedness could succeed in discharg-

ing [defendants’] burden.” Id at 1276.

> FEP Cases at 1237.

This burden has not been met. To

the contrary, positive evidence of job-

relatedness is conspicuous by its ab-

sence. Defendants’ expert, Dr. Erwin

Taylor, specifically refused to testify

that 34-944 was job-related. (Tran-

script at 809-11.) He was not willing

to go beyond his statement that “if

these procedures were in effect fol-

lowed, they would constitute the steps

necessary but not necessarily suffi-

cient to the development of a series of

job related tests.” (Transcript at 809.)

Plaintiffs’ expert, Dr. Richard Bar-

rett, a leading industrial psychologist

and expert in the field, while declin-

ing to state positively that 34-944 was

not job-related, did testify that the

exam had not been demonstrated to

be job-related (Transcript at 893-94)

and indicated that he had “substan-

tial doubts as to whether the test is

in fact valid” (Transcript at 894-95).

Taking to heart Judge Friendly’s

implied caveat against “burying

[ourselves] in a question by ques-

tion analysis” of the exam (Vulcan,

Slip op. at 461), we merely note in

passing some of the imperfections in-

dicated by the record. Witnesses for

E-40

both sides agreed that certain items

in the laws, rules and regulations sub-

test involve guidelines that a Sergeant

would have no need to apply. (Tran-

script at 128-30, 132-33, 553, 774.) As

to all the subtests, Dr. Barrett testi-

fied as to item defects, inconsistencies,

and irrelevancies with regard to

numerous questions. (Transcript at

903-22.) It is unnecessary to agree

with his comments as to each item

to find that the record supports:his

conclusion that 34-944 is not a pro-

fessionally adequate examination.

(Transcript at 922-23.)

More serious perhaps than specific

item flaws is the fact that, regardless

whether 34-944 adequately tests the

attributes it is intended to measure,

it fails to examine a number of traits,

skills and abilities which witnesses for

both sides singled out as important

to the Sergeant job. Among these are

leadership, understanding of inmate

resocialization, ability to empathize

with persons from different back-

grounds, and ability to cope with

crisis situations. (Transcript at 63-64,

117, 308, 702-703.) We conclude, as did

Judge Newman in Guardians, that:

“Even if the exam need not be com-

prehensive as to content or constructs, the

evidence does not indicate whether the

few areas of knowledge and the few

traits measured are the ones that will

identify suitable candidates for the job.

.. . An exam of this sort, which does

not attempt to be comprehensive in test-

ing for content or constructs, employs a

sampling approach. Such an exam might,

E-41

in some circumstances. be shown to meet

the standard of job relatedness. But the

evidence does not establish the represen-

tativeness of the knowledge or traits

sampled by the exam used here.” 354 F,

Supp. at 792, 5 FEP Cases at 580.

Given the unwillingness of both ex-

perts to state positively that 34-944

is or is not job-related, it would be

foolhardy on our part to hazard such

an opinion. It is, of course, barely pos-

Sible that the exam jis job-related:

“[djefendants’ burden. however. is

not to establish possibilities but to

demonstrate strong probabilities”

(Vulcan, 360 F.Supp. at 1276, 5 FEP

Cases at 1237 (footnote omitted)). We

can say with certainty, and we are re-

quired to do no more, that the prob-

abilities in this case run heavily

against defendants. Accordingly, they

have failed to meet the burden which

the law imposes on them.

III. Remedy

We turn, therefore, to the question

Of relief. Plaintiffs seek 1) a perma-

nent injunction against basing per-

manent appointments to the position

of Correction Sergeant on the results

Of 34-944; 2) a mandatory injunc-

tion obliging defendants to develop a

valid selection process for that posi-

tion; and 3) an injunction requiring

defendants to make interim and regu-

lar appointments of class members.

They also seek a class action determi-

nation and an award of costs, includ-

ing attorneys’ fees.

E-42

Taking the class action question

first, we find that plaintiffs have

demonstrated the existence of a class

satisfying the requirements of Rule

23 composed of all Black and Hispanic

Correction Officers or provisional Cor-

rection Sergeants who failed 34-944 or

who passed but ranked too low to be

appointed.!14 The class is clearly too

numerous to permit joinder: a total

of 119 minority candidates, 103 Blacks

and 16 Hispanics, took 34-944 and of

these only 9 passed and only 2 (both

Black) received a score of 57 or above

giving them a chance at appoint-

ment. Accordingly, the class num-

bers 117 persons which is more than

sufficient to satisfy the demands of

Rule 23(a)(1). Korn v. Franchard

Corp., 456 F.2d 1206, 1209 (2d Cir.

1972). Whether examination 34-944

discriminated against minority candi-

dates is the question of law common

to the class and plaintiffs’ claims are

perfectly typical of the claims of the

class.1° Rule 23(a)(2) and (3). The

14Plaintiffs originally sought to represent

as well persons who were deterred from tak-

ing the examination by defendants’ discrim-

inatory employment practices. Since they in-

troduced no evidence as to persons who

might have been deterred, plaintiffs “do

not now insist upon their inclusion in the

class’ (Post Trial Memorandum at 64), and

we decline to include them.

15 Defendants claim that the named plain-

tiffs cannot represent persons who passed

the examination but ranked too low to be

appointed because both named piaintiffs

failed 34-944. However, plaintiffs’ interests

and those of persons who passed but whose

low rank prevents their appointment are

identical, and we reject defendants’ con-

tention that the claims of the former are

not representative of those of the latter.

E-43

representative parties have amply

demonstrated their ability to protect

fairly and adequately the interests of

the class by conducting the litigation

to its present Successful conclusion.

Rule 23(a) (4). Finally, the defend-

ants have “acted or refused to act on

grounds generally applicable to the

Class, thereby making appropriate

final injunctive relief or correspond-

ing declaratory relief with respect to

the class as a whole.” Rule 23(b) (2).

Accordingly, it is proper that the case

be treated as a class action.

We turn to the Substantive relief

requested by plaintiffs. Plaintiffs seek

and are entitled to declaratory and

injunctive relief against the use of

34-944 and the eligible list which was

for appointments to the position of

Correction Sergeant. Accordingly, ex-

members of the class who are provi-

sional Correction Sergeants solely be-

cause of their inability to pass 34-944,

The invalidation of 34-944 clearly

authorizes the court to grant ap-

propriate affirmative relief, including

mandating the creation ofa new se-

lection process to conform with the

requirements of the Fourteenth

E-44

Amendment and ordering the promo-

tion of members of the plaintiff class

in a ratio designed to correct the ef-

fect of defendants’ unconstitutional

employment practices. As the Supreme

Court stated in Louisiana v. United

States, 380 U.S. 145, 154 (1965):

“(T]he 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.” See also, Guardians, 482 F.2d at

1340, 5 FEP Cases at 1349.

However, we believe it is appropriate

to defer decision on the extent of af-

firmative relief to enable defendants

to respond to the specific requests

made by plaintiffs. Since, pursuant to

court order, the post-trial memor-

anda in this case were submitted

simultaneously, defendants have not

as yet had the opportunity to address

themselves to the recommendations

contained in plaintiffs’ brief and pro-

posed order. We refer, in particular,

to plaintiffs’ suggestions that 1) the

new selection procedure be required

to conform with the EEOC Guide-

lines; 2) class members who are pres-

ently provisional Correction Ser-

geants!* be permanently appointed

to that position; 3) an interim per-

manent appointment procedure be in-

stituted which would provide for the

16 Plaintiffs also request the permanent

appointment of Henry Liburd, a member of

the class who was not provisionally ap-

pointed to the Sergeant position, because

they contend that the record establishes his

qualifications for permanent appointment.

instructed to Submit an answering

memorandum on these issues within

ten days of the filing of this Opinion,

Plaintiffs to have the Opportunity to

reply within one week thereafter.

Finally, plaintiffs request an award

of reasonable attorneys’ fees. Defend-

ants oppose on two grounds: 1) As q

general rule, successfy] litigants can-

not recover attorneys’ fees from the

losing party and Plaintiffs have not

Shown themselves to fall into any ex-

ception to this rule; and 2) an award

of attorneys’ fees is barred by the doc-

trine of sovereign immunity and the

litigate not only for their own bene-

fit but also to vindicate the rights of

Others similarly Situated and the in-

terest of the public generally:

“The rule briefly stated is that when-

ever there is nothing in a Statutory

scheme Which might be interpreted as

policv which has benefited a large class of

people, ard where further the necessity

E-46

and financial burden of private enforce-

ment are such as to make the award es-

sential.” La Raza Unida v. Volpe, 57 F.R.D.

94, 98 (N.D. Cal. 1972).

In such cases, the protection of rights

conferred both by the Constitution

and by Congressional enactment re-

quires that the normal rule be super-

ceded. This exception to the general

rule of not allowing attorney’s fees

derives from Newman vy. Piggie Park

Enterprises. Inc., 390 U.S. 400 (1948),

a class action under Title II of the

Civil Rights Act of 1964. in which the

Supreme Court stated that “one who

succeeds in obtaining an injunction

under that Title should ordinarily re-

cover an attorney’s fee unless special

circumstances would render such an

award unjust.” Id. at 402: see also

Mills v. Electric Auto-Lite Co., 396 US.

375, 389-97 (1970).

The fact that this suit was not

brought under the Civil Rights Act of

1964, which specifically provides for

the award of attorneys’ fees, but

rather under 42 U.S.C. §§1981 and

1983 which do not so provide, does not

mandate a different result. In Lee vy.

Southern Home Sites Corp., 444 F.2d

143 (Sth Cir. 1971), the Court of Ap-

peals relying on Piggie Park held that

“attorney’s fees are part of the effec-

tive remedy a court should fashion to

carry out the congressional policy

embodied in [42 US.C.] Section

1982” Id. at 144. Indeed, the fact that

subseauent Congressional legislation

in furtherance of the same objective

provided for the award of attorneys’

E-47

fees was considered by the Lee court

to be relevant to a determination of

appropriate remedies under the

earlier Civil Rights Acts, which do not

enact a panoply of specific remedies:

“{I]n fashioning an effective remedy

for the rights declared by Congress look

not only to the policy of the enacting

Congress but also to the policy embodied

in closely related legislation. Courts work

interstitially in an area such as_ this.”

Id. at 146.

We note, in this context, that Title

VII of the 1964 Act, which provides a

parallel route to the one chosen by

Plaintiffs here, allows for the award

of attorneys’ fees. 42 U.S.C. § 2000e-

5(k). Furthermore, the absence of

specific remedies in the earlier Civi]

Rights Acts authorizes the court to

exercise its broad equitable power to

include in the relief any remedy

which furthers the vindication of

Constitutional and Congressional pol-

icy, whereas if the statutes detailed

the types of relief which they author-

ized and omitted attorneys’ fees they

would bar by inference such an award.

Fleischmann Distilling Corp. v. Maier

Brewing Co., 386 U.S. 714 (1967): Har-

per v. Mayor and City Council, 359

F.Supp. 1187, 1217-18, 6 FEP Cases

1050 (D. Mad. 1973).

Because the issue is important and

novel, at least in this Circuit, we list

at greater length than might other-

wise be required some of the recent

decisions which have granted attor-

neys’ fees in suits under §& § 1981-

83 on the “private attorney general”

E-48

theory, despite the absence of statu-

tory authorization and without rely-

ing on a showing of bad faith or un-

reasonable obduracy by defendants.

See Cooper v. Allen, 467 F.2d 836. 4

FEP Cases 1219 (5th Cir. 1972); Knight

v. Auciello, 453 F.2d 852 (1st Cir. 1972):

Lee v. Southern Homes Sites Corp..

444 F.2d 143, 144-48 (5th Cir. 1971):

Harper v. Mayor, 359 F.Supp. 1187,

1217-18, 5 FEP Cases 1050 (D.Md.

1973); Wyatt v. Stickney, 344 F.Supp.

387, 408-409 (M.D. Ala. 1972): Sims v.

Amos, 340 F.Supp. 691, 694-95 (M.D.

Ala.) (three judge court), aff'd, 409

U.S. 942 (1972): NAACP v. Allen, 340

F.Supp. 703, 708-10, 4 FEP Cases 318

(M.D. Ala. 1972); Bradley v. School

Board, 53 F.R.D. 28. 41-42 (E.D. Va.

1971); Morrow v. Crisler, 4 FEP Cases

674, 4 E.P.D. 17584 (S.D. Miss. 1971).

See also Brewer v. School Board, 456

F.2d 943, 951-52 (4th Cir. 1972): La

Raza Unida v. Volne. 57 F.R.D. 94, 98-

102 (N.D. Cal. 1972). We note par-

ticularly that Cooper v. Allen, Harper

v. Mayor, NAACP v. Allen and Mor-

row v. Crisler are cases which. like

the suit here, were brought under 42

U.S.C. §§ 1981 and 1983 to vindicate

the right to eaual employment op-

portunities in the public sphere. We

see no relevant distinction between

them and the case at hand.

Defendants’ second contention, that

the award of attorneys’ fees is barred

by the Eleventh Amendment and

E-49

the doctrine of sovereign immunity,17

has been rejected in the recent case

Gates v. Collier, Civ. No. 73-1790 (5th

Cir., December 9, 1973). The court

there affirmed an award of attor-

neys’ fees, stating:

“This Court has said that ‘such a suit

as this the award of attorney’s fees is

not an award of damages against the

State, even though funds for payment of

the costs may come from the State ap-

propriations.

* *

“Although the trial court had the power

to assess attorney’s fees and expenses

against the individua] defendants found to

have engaged in the unconstitutional con-

duct, we think it does not vitiate the

award because the trial court prescribed

tnat this part of tha costs were to be

nayable ‘from funds which the Mississippi

Legislature, at its 1973 Session, may ap-

propriate for the operation of the Mis-

Sissippi State Penitentiary.’ and were not

to be ‘the personal, or individual, liability

of the varied defendants or any of them.’”

Slip ov. at 12-13 (footnote omitted).

The issue has also arisen and been

resolved adversely to defendants po-

sition here in Sims v. Amos, 340

F.Supp. 691 (M.D. Ala.) (three judge

court), aff’d, 409 U.S. 942 (1972), and

17 No Eleventh Amendment or sovereign

immunity Droblems would. arise from an

award of attorneys’ fees against the individ-

ual defendants. Although the record might

well justify such an award, it is nonetheless

not within our power Since the individual

defendants were never broperly brought be-

fore the court. Kirkland v. New York State

Department of Correctional Services. 358

F.Supp 1349. 1250. nN. 1 (SDNY. 1973). Ac-

cordingly. attorneys’ fees can only be awarded

against the two defendant State agencies.

E-50

LaRaza Unida v. Volpe, 57 F.R.D. 94,

101. n.11 (N.D. Cal. 1972).

Plaintiffs ask the court to deter-

mine at this time the size of the

award and have submitted affidavits

uvon which to base the determina-

tion. To accede to their request with-

out providing defendants the oppor-

tunity of bringing to our attention

facts relevant to determining the

amount in question would be im-

proper in view of the recent decision

of the Court of Appeals for this Cir-

cuit in City of Detroit v. Grinnell

Corp., Civ. No. 73-1211 (2d Cir., March

13, 1974). Accordingly, defendants are

instructed to include in the memor-

andum discussed above any facts

which they wish the court to bear in

mind in determining the amount of

attorneys’ fees to which plaintiffs are

entitled.

To sum up: Examination 34-944 is

declared unconstitutional and is set

aside. Defendants are enjoined from

making permanent appointments to

the position of Correction Sergeant

from the eligible list which is based on

its results and from terminating the

provisional appointments to that po-

sition of plaintiff class members sole-

ly because of their failure to pass the

examination. Defendants are_in-

structed to submit a memorandum on

the subjects delineated above within

ten davs of the filing of this Opinion,

Dlaintiffs to reply within one week

thereafter. Plaintiffs are awarded rea-

sonable costs, including attorneys’

fees, in an amount to be determined

after further documentation by the

parties.

It is so ordered.

F-1

APPENDIX F--DECREE OF DISTRICT COURT.

{CAPTION OMITTED ]

FILED: July 31, 1974

LASKER, D.J.:

This action having been tried to

the Court without a jury, and the Court

having made findings of fact and conclu-

sions of law by Opinion dated April l,

1974 [7 EPD 49268] (374 F. Supp. 1361),

declaring Examination No. 34-944, pre-

pared by the Civil Service Commission of

the State of New York and administered

by the Department of Corrections of the

State, for promotion to the grade of

Correction Sergeant to be unconstitution-

al, and setting it aside; and the ori-

ginal parties hereto and the intervenors

having filed memoranda in relation to

the relief which should be afforded in

accordance with the findings and conclu-

F=-2

APPENDIX F

sions of the Court, and the Court having

thereafter conferred with counsel as to

the terms of such relief, it is Ordered,

Adjudged and Decreed:

l. Examination No. 34-944 is de-

clared invalid as violating the Consti-

tution of the United States.

2. The defendants New York State

Department of Correctional Services and

New York State Department of Civil Serv-

ices, and the named defendants Oswald,

Poston, Stockmeister, and Scelsi, and

their agents, employees, and successors

in office are permanently enjoined from

(a) making permanent or provisional ap-

pointments to the position of Correction

Sergeant (Male) in the New York State

Department of Corrections based upon the

results of Examination No. 34-944 or any

Fo=3

APPENDIX F

eligible list promulgated pursuant to

that examination; and (b) administering

or promulgating eligible lists based

upon, Or in any way acting upon the re-

sults of, Examination No. 34-944 for the

position of Correction Sergeant (Male).

3. The defendants, their agents,

employees, and successors in office, are

mandatorily enjoined to develop a lawful

non-discriminatory selection procedure

for the position of Correction Sergeant

(Male). In so doing, they shall adhere

to the following general guidelines:

(a) The new selection procedure

shall be developed within the shortest

practicable period.

(b) The new selection procedure

shall be developed and, before usage for

promotional purposes, validated in accord-

F-4

APPENDIX F

ance with the EEOC Guidelines on Employ-

ment Selection Procedures, 29 C.F.R.

§1607.1 (1970), as those Guidelines are

or as later revised.

(c) All validation studies pursu-

ant to this decree shall be performed by

means of empirical, criterion-related

validation techniques insofar as feasi-

ble.

(d) The selection procedure to be

developed may include a written examina-

tion, and may also include other selec-

tion instruments or procedures.

4, During the period required for

the development of a lawful, non-discrim-

inatory selection procedure for perma-

nent appointments to the position of Cor-

rection Sergeant (Male), the Court will

entertain requests by defendants or their

F=-5

APPENDIX F

successors in office for permission to

make such appointments under an interim

procedure subject to the following pro-

visions:

(a) Any such request shall set

forth a statement of the circumstances

which render such appointments necessary

or desirable.

(b) The request shall specify the

number of appointments to be made, and

the desired effective date(s) of such

appointments.

(c) The request shall set forth

the nature of the interim procedure to

be relied upon to select persons for pro-

motion to Correction Sergeant (Male),

and the reasons for employing that par-

ticular procedure, and the reasons assur-

ing that the procedure will be based on

F=-6

APPENDIX F

merit and fitness and will be non-dis-

criminatory in effect.

(d) The request shall pledge, and

the subsequent appointments shall reflect,

that members of the plaintiff class shall

receive at least one such promotion by

the interim procedure for each three such

promotions received by persons not mem-

bers of the class defined herein. This

numerical requirement shall be annulled

at such time as the combined percentage

of Blacks and Hispanics in the ranks of

Correction Sergeants (Male) is equal to

the combined percentage of Blacks and

Hispanics in the ranks of Correction

Officers (Male).

(e) Copies of requests shall be

submitted to counsel for plaintiffs or

their designee when submitted to the

F-7

APPENDIX F

Court, and plaintiffs' comments thereon,

made within no more than ten days or

such shorter period as the Court may

specify upon an appropriate showing of

urgency by the defendants, will be con-

sidered by the Court.

5. Upon completion of the develop-

ment of the revised selection procedures

and subject to the Court's approval

thereof, the defendants, their agents,

employees and successors in office are

enjoined from failing to appoint as per-

manent Correction Sergeants (Male) pur-

suant to the new procedures at least one

Black or Hispanic employee for each three

white employees so appointed, until the

combined percentage of Black and Hispanic

persons in the ranks of Correction Ser-

geants (Male) is equal to the combined

F-8

APPENDIX F

percentage of Black and Hispanic persons

in the ranks of Correction Officers

(Male).

6. The parties are directed to con-

fer with a view to proposing jointly to

the Court a detailed procedure for the

execution of the steps set forth in this

decree, if agreement is possible. The

parties shall submit their joint or, if

necessary, separate proposals as to

these steps within thirty (30) days af-

ter the date of this decree. The joint

or separate proposals shall provide for

submission of any proposed selection pro-

cedure to the plaintiffs for review and

to the Court for approval prior to the

initiation of the selection procedure

for promotional. purposes.

F-9

APPENDIX F

7. The Court retains jurisdiction

for such period as is necessary to super-

vise this decree and further proceedings

thereunder, and to determine the reason-

able value of plaintiffs' attorneys'

services.

G-1

APPENDIX G--SUPPLEMENTAL ORDER,

SEPTEMBER 18, 1974.

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF NEW YORK.

EDWARD L. KIRKLAND and NATHANIEL HAYES,

each individually and on behalf

of all others similarly situated,

Plaintiffs,

-agatnst-

THE NEW YORK STATE DEPARTMENT OF CORREC-

TIONAL SERVICES: RUSSELL OSWALD,

individually and in his capacity

as Commissioner of The New York

State Department of Correctional

Services; THE NEW YORK STATE CIVIL

SERVICE COMMISSION: ERSA POSTON,

individually and in her capacity

as President of the New York Civil

Service Commission and Civil Serv-

ice Commissioner; MICHAEL N,

SCEILSI and CHARLES F. STOCKMEISTER,

each individually and in his capa-

city as Civil Service Commissioner,

Defendants.

73 Civ. 1548 MEL.

G-2

APPENDIX G

Application having been made herein

by defendants for clarification and/or

supplementation of the Order and Decree

of this Court dated July 3l, 1974, regard-

ing the appointment of provisional Correc-

tion Sergeants (Male) pending the imple-

mentation of the interim selection pro-

cedure for permanent appointments and/or

the final selection procedure of perma-

nent appointments, and argument having

been had upon said application, and upon

due consideration, it is

ORDERED, ADJUDGED AND DECREED that

the Order and Decree of this Court in

the above captioned action, dated Julv

31, 1974 be and hereby is supplemented

as follows:

a. Defendants are authorized to

make provisional appointments to the

G-3

APPENDIX G

position of Correction Sergeant (Male)

pending the implementation of the interim

selection procedure for permanent appoint-

ments and/or the final selection procedure

for permanent appointments, subject to the

conditions set forth herein, for a period

not exceeding six (6) months unless ex-

tended by the court for good cause shown.

b. Said appointments shall be made

only with the permission of the court

upon five days written notice to the

court and to the attorneys for the plain-

tiffs. Said notice shall set forth the

number of appointments to be made and

the reasons therefor and shall include,

in summary form, the ethnic/racial iden-

tification of the prospective provisional

appointees.

G-4

APPENDIX G

c. Prospective provisional aproint-

ees shall be advised that the duration

of their appointments shall be no more

than six (6) months unless extended for

good cause shown with the approval of

the pout.

DATED: New York, New York

September 18, 1974

MORRIS E. LASKER

U.S.D.d.

H-1

APPENDIX H--OPINION OF COURT OF APPEALS.

UNITED STATES COURT OF APPEALS

For THE Seconp Crrcuir

eww

—

Nos. 445, 499—September Term, 1974.

(Argued April 21, 1975 Decided August 6, 1975.)

Docket Nos. 74-2116, 74-2258

a.

el

Epwarp L, Kirkuanp and NaTHANIEL Hayes, each

individually and on behalf of all others similarly situated,

Plaintiff s-A ppellees,

v.

Tre New York State DEPARTMENT OF CORRECTIONAL SER-

vices; RussELL Oswa.p, individually and in his capacity

as Commissioner of the New York State Department

of Correctional Services; THe New York State Crvin

Srrvick Commission; Ersa Poston, individually and in

her capacity as President of the New York State Civil

Service Commission and Civil Service Commissioner;

Micnwaen N. Scetst and CuHarues F’, StocKMEIsTErR, each

individually and in his capacity as Civil Service Com-

missioner,

Defendants-A ppellants,

and

AvserT M. Rreerro and Henry Ju. Coons,

Intervenors-Appellants.

Before:

Fiays, Timpers and Van GRAAFEILAND,

Circuit Judges.

+e

°

sf

H-2

Appeal from an order and decree of the United States

District Court for the Southern District of New York,

Morris E. Lasker, Judge, invalidating as unconstitution-

ally discriminatory a Civil Service examination for ser-

geant in the New York State Department of Correctional

Services.

Affirmed in part and reversed in part.

ww

JupitH A. Gorpon, Assistant Attorney General,

New York, N. Y. (Louis J. Lefkowitz, At-

torney General of the State of New York,

Samuel A. Hirshowitz, First Asst. Atty.

Gen., Stanley L. Kantor, Asst. Atty. Gen-

eral, New York, N. Y., of Counsel), for

Defendants-A ppellants.

Ricwarp Rowtey, Esq., Albany, N. Y. (Sneer-

inger & Rowley, Albany, N. Y., of Counsel),

for Intervenors-A ppellants.

DesoraH M. Greenserc, Attorney, New York,

N. Y. (Jack Greenberg, Esq. and Morris

J. Baller, Esq., New York, N. Y., of Coun-

sel), for Platntiffs-A ppellees.

ArnoLp Forster, Esq., New York, N. Y. (Joy

Meyers, Attorney and Justin J. Finger,

Esq., New York, N. Y., of Counsel), for

amicus curiae, Anti-Defamation League of

B’nat B'rith.

“é.

—

Van GraareiLann, Circuit Judge: ' |

On October 14, 1972, the New York State Department of

Civil Service offered examination 34-944 for promotion to

the position of correction sergeant in the New York State

H=- 3

Department of Correctional Services. One thousand, two

hundred sixty-three white correctional officers took this ex-

amination, aud three hundred eighty-nine, or 30.8%, re-

ceived a passing score. Of the one hundred four Blacks

tested, eight, or 7.7% passed; of the sixteen Hispanics,

two, or 12.5% passed. Thus was this litigation born.

On April 10, 1978, Edward Kirkland and Nathaniel

Hayes, two Black officers who failed, joined with the

Brotherhood of New York State Correction Officers, Inc.,

in instituting this civil rights class action? on behalf of

their similarly situated fellow officers, seeking to enjoin

any promotions to sergeant based on the results of the

examination, ;

The case was tried before Judge Lasker in July of 1973,

and this appeal is taken from his order and decree, Basic-

ally, the order provided as follows:

1. It declared examination 34-944 invalid as uncon-

stitutionally discriminatory and enjoined defendants

from making any appointments to sergeant hased on

the results thereof.

2. It mandatorily enjoined defendants to develop

a lawful, non-discriminatory selection procedure for

the position of sergeant, requiring that it be validated

in accordance with the E.E.0.C.’ Guidelines on Eim-

ployment Selection Procedures and that all validation

studies be performed by means of empirical, criterion-

related validation techniques insofar as feasible. It

also required that the proposed selection procedure

1 Although the coverage of Title VII was enlarged in 1972 by the

amendment of 42 U.S.C. $2000e(a) to include governments, govern-

mental agencies and political subdivisions, this action was brought under

42 U.S.C. §§ 1981, 1983.

2 Equal Employment Opportunity Commission.

H-4

be ‘submitted to the plaintiffs for review and to the

court for approval prior to its adoption.

3. It authorized defendants to request the court’s

permission for the making of interim appointments,

_ with the provision that members of the plaintiff class

receive at least one out of every four such promotions

‘until the combined percentage of Black and Hispanic

sergeants was equal to the combined percentage of

Black and Hispanic correction officers.

4, It required that, following the development and

court approval of revised selection procedures, de-

fendants continue to promote at least one Black or

Hispanic employee for each three white employees pro-

moted until the combined percentage of Black and

Hispanic sergeants was equal to the combined per-

centage of Black and Hispanic correction officers.

5. It awarded attorney’s fees to plaintiffs as part

of their costs, retaining jurisdiction in the court to

determine the amount thereof.

Defendants have appealed from this order, contending

primarily that examination 34-944 was job-related and

therefore not unconstitutionally discriminatory; that the

court erred in requiring future examinations be criterion-

validated; that the imposition of promotion quotas was un-

justified and constituted reverse discrimination; and that

the award of attorney’s fees was improper.

By order to show cause dated April 23, 1974, Albert M.

Ribeiro and Henry L. Coons, correction officers who had

taken and passed examination 34-944, sought, leave to

intervene as parties defendant on behalf of themselves and

a class of similarly situated correction officers, alleging

that they were indispensable parties, since the relief sought

H-5

by plaintiffs would deprive them of their personal and

property rights without due process of law. This motion

was granted, with the proviso that intervenors could not

litigate any matters which they might have litigated had

they been parties from the outset. Intervention was also

limited to the petitioners as individuals and not as repre-

sentatives of a class.

Intervenors also appeal from the final order and deerce,

urging as additional error that they should have been

joined at the outset as indispensable parties. Since this

latter contention involves the litigation at its inception,

we will address ourselves to it first.

DISMISSAL FOR NoNn-J OINDER

Intervenors’ claim of indispensability is grounded upon

the provisions of the New York Civil Service Law. The

office of correction sergeant is in the competitive class

under such law.’ Article 5, Section 6, of the New York

Constitution requires that appointments and promotions

in the Civil Service “shall be made according to merit and

fitness to be ascertained, as far as practicable, by examina-

tion which, as far as practicable, shall be competitive”.

The Civil Service Law, following the mandate of the

Constitution, requires the taking of competitive examina-

tions and the appointment and promotion to covered posi-

tions from eligible lists promulgated from the results of

such examinations.‘ Appointment or promotion is gen-

erally required to be made from one of the three persons

standing highest on the eligible list.5 When there is no

appropriate eligible list available, provisional appoint-

3 N. Y. Civil Service Law § 44 (McKinney 1972).

4 N. Y. Civil Service Law §§ 52, 61 (McKinney 1972).

5 N. Y. Civil Service Law § 61 (McKinney 1972).

H-6

ments or promotions are authorized, pending the creation

of a new list;’ and provisional appointees secure certain

benefits which may be applied against future permanent

appointments.” |

The eligible list from the examination preceding 34-944

became exhausted in the Spring of 1972, and intervenors,

together with some members of plaintiff class, received

provisional appointments to correction sergeant. Inter-

venors were among the ninety persons who had passing

scores on examination 34-944, and it was expected that all

ninety would receive permanent appointments as sergeant.

Such appointments were prohibited, initially by the District

Court’s temporary restraining order and finally by the or-

der and decree appealed from.

That the intervenors were adversely affected by such

orders can hardly be gainsaid.’ However, this in itself

is not determinative of their right to be joined as in-

dispensable parties. When litigation seeks the vindication

of a public right, third persons who may be adverselv

affected by a decision favorable to the plaintiff do not

thereby become indispensable parties.’

It may be that because of the “reverse discrimination”

aspects of this case which will be discussed hereafter, in-

tervention with the right to participate in the trial would

have heen appropriate if timely request therefor was

6 N. Y. Civil Service Law § 65 (McKinney 1972).

7 N. Y. Civil Service Law 652 (MeKinney 1972).

Castro v. Beecher, 459 F.2d 725, 736 (1st Cir. 1972).

=> @®@

National Licorice Co. v. NLRB, 309 U.S. 350, 366 (1940); National

Resourcer Defense Council, Inc. v. Tennessee Valley Authority, 340 F.

Supp. 400 (S.D.N.Y. 1971), rev'd on other grounds, 459 F.2d 255 (24

Cir, 1972); Sansom Committee v. Lynn, 366 F. Supp. 1271 (E.D. Pa.

1973).

H-7

made.’® However, that question is not before us. We hold

that intervenors’ argument that the complaint should have

been dismissed because they were not joined as indispens-

able parties could not be made for the first time one year

after the trial had heen completed. At that late date, the

test of “equity and good conscience” foreclosed any such

rights which intervenors might possibly have had.’!

That intervenors were aware of the litigation at its

inception was clearly shown by the fact that the District

Court’s preliminary injunction prohibited their appoint-

ments. The orderly processes of justice do not permit that,

with such knowledge, they may stand idly by until after

an adverse decision is rendered.’

THE C‘ONSTITUTIONALITY OF THE KXXAMINATION

Proof in employment discrimination cases proceeds from

effect to cause. Plaintiffs establish the racially disparate

consequences of defendants’ employment practices, and

defendants must then justify such consequences on con-

stitutionally acceptable grounds."

Plaintiffs herein contend that examination 34-944 had a

disproportionate impact upon minority correction officers,

and that defendants must therefore establish that the sub-

ject matter of the test bore a meaningful relationship to

the duties of the office for which the test was given, 1e.,

that it was ‘“‘job-related”.™

10 See, ¢.9., Bridgeport Guardians, Ine. v. Bridgeport Civil Service

Comm'n, 482 F.2d 1333 (2d Cir. 1973).

1 Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102

(1968).

12 Rios v, Steamfitters Local 688, -—— F.2d -—— (2d Cir, June 24, 1975),

Slip op. 4351, 4358 n.3.

13 Griggs Vv. Duke Power Co., 401 U.S. 424 (1971).

14 Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482

F.2d 1333 (2d Cir. 1973); Vulcan Society of the New York City Fire

Dep’t, Inc. v. Civil Service Comm'n, 490 F.2d 387 (2a Cir. 1973).

H-8

The figures relied upon by plaintiffs are recited above;

30.8% of the Whites who took examination 34-944 passed,

as contrasted with 7.7% of the Blacks and 12.5% of the

Hispanics. Defendants, while not disputing the accuracy

of these figures, contend that most of the racial disparity

occurred at Ossining Prison which employs the largest

group of minority correction officers and urge that any

attack upon the examination should be limited to the em-

ployees at that institution. Defendants say that either

there was no disparity at all at the other correction facili-

ties or else that so few officers were tested at such facilities

that no meaningful conclusions could be reached from the

test results.

This argument completely overlooks the identity of job

classifications in the State’s penal institutions, the State-

wide scope of examination coverage, and the mobility of

employees throughout the correctional system. It also

ignores the fact that the examination grades for minorities

were uniformly lower at all of the State’s facilities.

The District Court’s refusal to fractionalize the exam-

ination by varying its application among the correctional

facilities was therefore not clearly erroneous. .

The District Court was likewise not convinced by defen-

dants’ argument that the results of the five sub-tests com-

prising examination 34-944 did not show a consistent racial

disparity, particularly when broken down among the dif-

ferent correctional facilities. Since passing grades and

promotion were dependent upon the cumulative results of

the five sub-tests, we too see little relevance in this proof

on the issue of whether or not the examination as a whole

had an unconstitutional discriminatory impact.’

_. ;

15 Vulcan Society of the New York City Fire Dep't, Inc. v. Civil Service

Comm'n, 360 F. Supp. 1265, 1272 (S.D.N.Y. 1973), aff'd, 490 F.2d 387

(2d Cir. 1973). See note 13, supra.

H-9

In Vulcan Society of the New York City Fire Depart-

ment, Inc. v. Civil Service Commission, 490 F.2d 387 (2d

Cir. 1973), we stated that racially disproportionate impact

need not be proven with complete mathematical certainty.

Within the broad outlines of that rule, the District Court’s

holding that examination 34-944 had such disproportionate

impact was not clearly erroneous. Defendants were there-

fore properly put to their proof to establish the job-relat-

edness of the examination under attack.

The District Judge’s decision that defendants had not

met the heavy burden thus imposed upon them was based

largely upon his conclusion that the procedures employed

in constructing examination 34-944 did not conform to pro-

fessionally acceptable and legally required standards. Spe-

cifically, the District Judge held that the defendants had

not performed an adequate job analysis and had too rou-

tinely followed the pattern of past practices. This approach

was approved by us in Vulcan, supra, where we said that

it was unnecessary for the trial judge to bury himself in a

question-by-question analysis of the test.

Of course, the trial judge could not confine himself to

an examination of the process of preparation while com-

-pletely ignoring the merit of the result. However, since

insufficient spadework usually results in a poor garden,

evidence of unsatisfactory preparation imposed upon the

defendants a heavier burden of demonstrating that thev

had created a satisfactory job-related examination.

The District Judge, without going into great detail,

pointed out that certain items on the test involved guide-

lines that a correction sergeant would have no need to

apply. He showed that the five sub-tests and their com-

ponent parts were not weighted to reflect the relative im-

portance of the job-related attributes being tested. He

considered the expert testimony submitted by both sides

H-10

and stressed the fact that neither expert would characterize

the examination as job-related.

We hold that Judge Lasker’s finding that defendants

had failed to carry their heavy burden of establishing the

job-relatedness of examination 34-944 was not clearly er-

roneous, and we move to the question of the relief granted.

New Testina PrRoceDURES

Having declared examination 34-944 unconstitutionally

invalid, the District Judge ordered the development of a

“lawful non-discriminatory selection procedure”. He also

required that such procedure be validated in accordance

with the E.E.0.C. Guidelines on Employment Selection

Procedures’® and that such validations be performed by

means of empirical criterion-related validation techniques

insofar as feasible.

In Bridgeport Guardians, Inc. v. Bridgeport Civil Ser-

vice Commission, 482 F.2d 1333 (2d Cir. 1973), and again

in Vulcan, supra, we described the several techniques for

proving the validity of testing procedures which are pro-

fessionally designated “empirical”, “construct” and “con-

tent”, and we see no need for further description in this

opinion. In Vulcan, we went a step further. We said:

“The Fourteenth Amendment no more enacted a par-

ticular theory of psychological testing than it did Mr.

Herbert Spencer’s Social Statics. Experience teaches

that the preferred method of today may be the re-

~ jected one of tomorrow. What is required is simply

that an examination must be ‘shown to bear a demon-

strable relationship to successful ‘performance of, the

jobs for which it was used.’ ”

% F hs Sts ) a.

16 29 C.F.R. $$ 1607.1 et seg. (1970).

oe ores rere, reeeO~”

H-11

However, since our decision in Vulcan, the Supreme

Court in Albemarle Paper Co. v. Moody, 43 U.S.L.W.

4880 (U.S. June 25, 1975), has strongly endorsed the pro-

cedures outlined in the E.E.0.C. Guidelines which provide

that evidence of content or, construct validity may be ap-

propriate “where criterion-related validity is not feasible”.*”

While Albemarle is distinguishable from the instant case

in that it is a Title VII action involving a private indus-

trial employer, we think the District Court’s similar pref-

erence for the E.E.0.C. Guidelines was not clearly er-

roneous.’®

We do not construe the order of the District Court as

going beyond the provisions of the Guidelines by requiring

empirical validation regardless of feasibility. It seems clear

that the problems involved in civil service testing are sub-

stantially different from those which confront a private

employer who tests on a limited and non-competitive basis.

These problems will, we are sure, be considered by the

District Court should a dispute hereafter arise as to

whether appellants’ testing procedures have been empiric-

ally validated “insofar as feasible”.

The District Court ordered that the new test prepared

by defendants be submitted to the plaintiffs for review.

We find this requirement difficult to comprehend. Pre-

sumably, this examination will be taken by members of

the plaintiff class in competition with others. Permitting

advance review by plaintiffs would place all others at a

competitive disadvantage.’* If the District Judge is seek-

ing professional assistance from plaintiffs’ expert, his

17-29 C.F.R. § 1607.5(a) (1970).

18 Cf. Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975).

19 Cf. Matter of Fitsgerald v. Conway, 275 App. Div. 205 (3d Dep't

1949); Matter of Belmont v. Kaplan, 16 A.D. aff'd 13 N.Y. 24 998

(1963) (mem).

H-12

order should so provide; and proper steps should be taken

to insure confidentiality.

THE Imposition oF QvorTas

One of the most controversial areas in our continuing

search for equal employment opportunity is the use of

judicially imposed employment quotas.” The replacement

of individual rights and opportunities by a system of sta-

tistical classifications based on race is repugnant to the

basic concepts of a democratic society.

The most ardent supporters of quotas as a weapon in

the fight against discrimination have recognized their un-

democratic inequities and conceded that their use should

be limited.2* Commentators merely echo the judiciary in

their disapproval of the “discrimination inherent in a

quota system.”?

Our court has approached the use of quotas in a lim-

ited and “gingerly” fashion. In United States v. Wood

Lathers, Local 46, 471 F.2d 408 (2d Cir.) cert. denied, 412

U.S. 939 (1973), we approved an order based upon a con-

sent decree which directed a union to issue a quota of

work permits to minority workers. In Bridgeport, supra,

we approved the use of hiring quotas for the Bridgeport

Police Department. In Vulcan, supra, we affirmed an in-

terim order for quota hiring of New York City firemen

20 Note, Constitutionality of Remedial Minority Preferences in Employ-

ment, 56 Minn. L. Rev. 842 (1972). See, e.g., Morrow v. Crisler, 491

F.2d 1053 (Sth Cir. 1974), cert. dented 417 U.S, 965 (1974).

21° Blumenrosen, Quotas, Common Sense, and Law in Labor Relations:

. Three Dimensions of Equal Opportunity, 27 Rutgers L. Rev. 675 (1974).

22 Hughes v. Superior Court, 339 U.S. 460, 467 (1950); see also dissent-

ing opinion of Mr. Justice Douglas in De Funis v. Odegaard, 416 U.S.

312 (1974), dissenting opinion of Judge Hays in Rios v. Steamfitters

Local 638, 501 F.2d 622 (2d Cir. 1974), and concurring opinion of

Judge Feinberg in Patterson v. Newspaper Deliverers Union, 514 F.2d

767 (2d Cir. 1975).

H-13

“only because no other method was available for afford-

ing appropriate relief without impairing essential city

services”. 490 F.2d at 398. Rios v. Enterprise Association

Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974) im-

posed a specific racial membership goal upon a union.

In Patterson v. Newspaper Delivers Union, 514 F.2d 767

(2d Cir. 1975), we approved a settlement which also in-

volved union membership with an imposed quota system

for the union’s group classification system. In each of

these cases, there was a clear-cut pattern of long-continued

and egregious racial discrimination. In none of them was

there a showing of identifiable reverse discrimination. In

the instant case, there is insufficient proof of the former

and substantial evidence of the latter.

This is a class action brought on behalf of one hundred

seventeen persons who took and failed examination 39-944

or who passed but ranked too low to be appointed. The

class was so designated by the District Court which found

that the question of whether examination 34-944 discrim-

inated against minority candidates was the question of

law common to the class. The existence of such common

question of law or fact was, of course, a prerequisite to

the maintenance of a class action.”

At the outset of the trial, the District Judge indicated

his desire to decide the case on the basis of 34-944 alone,

and it is clear that the trial proceeded substantially on

that basis. Some incomplete, and therefore unreliable,

data were submitted with regard to the previous exam-

ination given in 1970, but plaintiffs concede, as they must,

that there are no data in the record with respect to pre-

1970 tests. There was proof of some present racial im-

balance among supervisory correction personnel, but this

had little probative value without statistical background

23 Fed. R. Civ. Pro. 23(a).

H-14

data concerning the eligible correction officer labor pool

from which minority supervisors could have been drawr.

The testimony is undisputed that the duties of a correc- .

tion sergeant have changed substantially over the vears

so that no retroactive inference concerning job-relatedness

could be made as a result of examination 34-944 which

was evaluated in relation to the job as it then existed.

Finally, although this is not dispositive of the matter,

there is no claim that defendants at any time acted with-

out the utmost good faith or with intention to discriminate.

A comparison of respondent’s‘proof with that considered

by then District Judge Mansfield in Chance v. Board of

Examiners, 330 F, Supp. 203 (S.D.N.Y. 1971), aff’d, 458

F.2d 1167 (2d Cir. 1972) is illuminating. Judge Mans-

field’s opinion shows that he reviewed the pass-fail statis-

tics from fifty supervisory examinations taken by six thou-

sand, two hundred one candidates over a seven-year period

to ascertain the relevant racial and ethnic groupings. In

the instant case, the litigation centered on one. As Dis-

trict Judge Weinfeld pointed out in the lower court opinion

in Vulcan, 360 F. Supp. 1265, 1271 (S.D.N.Y. 1973), the

consequence of relying upon one examination is.“that any

finding of discrimination and the relief to be granted will

necessarily be restricted to the scope of the praof.”

In view of the limited scope of the issues framed in this

class action and the paucity of the proof concerning past

discrimination, we feel that the imposition of. permanent.

quotas to eradicate the effects of past discriminatory prac-

tices is unwarranted.”

Moreover, oncé defendants have prepared a court-ap-

proved job-related civil service examination, a deliberate

misuse of the resultant eligibility list on racial grounds

24 See Chance v. Board of Examiners, 458 F.2d 1167, 1179 “(24 Gir.

1972),

H-15

would seem to be violative of both the New York and the

Federal Constitutions.

Civil service laws, like civil rights laws, were enacted to

ameliorate a social evil. In the former case, it was the

spoils system; in the latter, discrimination. To the citizens

of the State of New York, civil service was sufficiently im-

portant that they mandated its use by their constitution.?§

In so doing, they “declared in unmistakeable terms that

merit, ascertained as therein provided, shall govern ap-

pointments and promotions in the public service”,?® and

that merit must be ascertained as far as practicable by

competitive examination.”

The Congress recognized the social benefits inherent in

a system of promotion based upon merit when it provided

that “it shall not be an unlawful employment practice for

an employer to apply different standards of compensation,

or different terms, conditions, or privileges of employment

pursuant to a bona fide merit system”.*® As pointed out

by the Court in Griggs, supra, Congress did not intend “to

guarantee a job to every person regardless of qualifica-

tions”.

The attack upon the content of civil service examina-

tions, illustrated by Vulcan and Bridgeport, merely heralds

future confrontations between the advocates of equal em-

ployment opportunities and the supporters of our civil

service system. In the offing, surely, is an attack upon the

provisions of § 61 of the New York Civil Service Law which

requires that appointment from en eligible list be made

25 N.Y. Const. art. V, $6 (1965).

26 Palmer v. Board of Education, 276 N.Y. 222, 226 (1937).

27 Matter of Fink v. Finegan, 270 N.Y. 356, 361 (1936).

28 42 U.S.C. § 2000e-2(h).

29 401 U.S. 424, at 430 (1971).

H-16

from one of the three persons standing highest on the list.

It seems to us that the judiciary should act with great

reluctance in undermining traditional civil service con-

cepts; and, if a decision is to be made to subordinate the

social purposes of civil service to those of equal employ-

ment opportunity, that decision should be made by the

people speaking through their legislators.

The courts of New York hold that one whose efforts

secure for him a position upon a civil service promotion

list “is entitled to consideration and protection in such

position”.*® Whether this governmental benefit be termed

a right or a privilege is of no significance; constitutional

rights do not turn upon such issue.*!

So long as civil service remains the constitutionally man-

dated route to public employment in the State of New

York, no one should be “bumped” from a preferred posi-

tion on the eligibility list solely because of his race.*? Un-

less the Fourteenth Amendment is applicable only to

Blacks, this is constitutionally forbidden reverse diserim-

ination.*

The smaller the group participating in a civil service

examination, the more pointed the problem becomes. We

can no longer speak in general terms of statistics and class

- groupings. We must address ourselves to individual rights.

\

30 Barlow v. Craig, 210 App. Div. 716, 719 (Ist Dept. 1924); Barlow

v. Berry, 245 N.Y. 500, 503 (1927),

31 Sugarman v. Dougali, 413 U.S. 634, 644 (1973).

32 Note Judge Feinberg’s concern about “bumping” expressed in U.S. v.

Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971).

33. “The Constitution voices its disapproval whenever economic discrim-

ination is applied under authority of law against any race, creed or

color.” Steele v. Louisville g Nashville R.R. Co., 323 U.S. 192, 209

(1944) (concurring opinion of Mr. Justice Murphy); Commonwealth y.

Glickman, 370 F. Supp. 724, 736 (W.D. Pa. 1974),

H-17

A hiring quota deals with the public at large, none of

whose members can be identified individually in advance.

A quota placed upon a small number of readily identifi-

able candidates for promotion is an entirely different

matter. Both these men and the court know in advance

that regardless of their qualifications and standing in a

competitive examination, some of them may be by-passed

for advancement solely because they are white. As to such

a situation, the following comments of Judge Mulligan in

Bridgeport Guardians, Inc. vy. Bridgeport Civil Service

Commission, supra, are most pertinent:

“We are discussing some 117 positions with time-in-

grade requirements mandating three years’ service as

patrolman, sergeant and lieutenant postponing promo-

tion to captain for a minimum of nine years. While

this factor will delay those of the minority groups who

will become patrolmen, the imposition of quotas will

obviously discriminate against those Whites who have

embarked upon a police career with the expectation of

_ advancement only to be now thwarted because of their

color alone. The impact of the quota upon these men

would be harsh and can only exacerbate rather than

diminish racial attitudes,” *

We turn now to the remedial relief ordered by the Dis-

trict Court, which is both interim and final in nature. As

interim relief, the court ordered that if defendants wished

to make any appointments pending the development of a

new selection procedure, they might apply to the court

for permission to do so. The court directed that at least

one out of four of the persons so promoted must be mem-

bers of the plaintiff class. Since this portion of the decree

is interim in nature, does not mandate the making of any

34 482 F.2d at 134}.

H-18

promotions, does not disregard an existing civil service

eligibility list, and since its benefits are limited to the mem-

bers of the plaintiff class, we affirm it as not heing an

abuse of the District Court’s discretion.

Insofar as the order appealed from imposes permanent

quota restrictions upon those who seek advancement by

means of a court-approved job-related civil service exam-

ination, we reverse. The benefits of such order are not

limited to the plaintiff class. Its quota requirements are

based upon a shifting and rapidly expanding racial base,

wholly unrelated to the consequences of any alleged past

discrimination. It provides for appointment according to

race without regard to the individual applicant’s standing

on a job-related examination and, indeed, without regard

to whether the benefitted Black or Hispanic received a

passing grade. It completely ignores the statutory re-

quirements and constitutional purpose of the New York

Civil Service Law and constitutes court-imposed reverse

discrimination without any exceptional or compelling gov-

ernmental purpose.*

PROVISIONAL APPOINTMENTS

At the outset of the litigation, the District Court issued

a temporary restraining order prohibiting defendants from

terminating provisional appointments which had been made

to members of plaintiff class. The terms of this order were

carried over into Judge Lasker’s opinion but were amended

to state that such appointments might not be terminated

solely because of. plaintiffs’ failure to pass examination

34-944, However, they were not incorporated into the final

order and decree, and we cannot be sure that the District

Court intended them to survive.

15 See Matter of Board of Education v. Nyquist, 31 N.Y. 2d 488, 475

(1973).

H-19

Appellants argue convincingly that under $65 of the

New York Civil Service Law provisional appointments

are made only when there is no appropriate eligible list

available for filling a vacancy and that therefore the mak-

ing of such appointments bears no relationship to the con-

stitutionality of examination 34-944. Appellants also argue

that such order was discriminatory in that it applied only

to minorities who failed the examination, We need not

reach any of the foregoing questions, however, since, as

we read § 65, provisional appointments are made only for

periods of up to nine months and then terminate auto-

matically unless a new provisional appointment is made.

We do not read Judge Lasker’s opinion as prohibiting

termination for any reason unrelated to the failure to pass

the examination or requiring the making of a new ap-

pointment at the end of the nine month provisional period.

ATTORNEY’s Frrs

The District Court’s award of attorney’s fees cannot

stand.

In Stolberg v. Board of Trustees, 474 F.2d 485 (2d Cir.

1973), we laid down the test of “unreasonable, obdurate

obstinancy” on the part of the defendant as the determin-

ing factor in the award of counsel fees.** There is no claim

of any such attitude on the part of defendants-appellants.

Accordingly, we would have been reluctant to approve the

awarding of counsel fees herein. In anv event the matter

has now been decided for us by the Supreme Court in

Alyeska Pipeline Service Co. v. Wilderness Society, 43

US. L.W. 4561 (U.S, May 12, 1975).3”

36 See also, Bridgeport Guardians, Ine. y, Bridgeport Civil Service Com-

mission, 497 F.2d 1112 (2d Cir. 1974),

37 Although an attorney may find lesser professional challenge in a

Title VII proceeding than in an action under $$ 1981 and 1983, there

are a number of reasons why the former procedure is preferable. The

possibility of an award for attorney's fees is now one of them.

H-20

DISPosITION

1. We deny intervenors’ application to dismiss the

complaint.

2. We affirm the District Court’s order insofar as it

invalidates examination 34-944 and directs the prepara-

tion of a new non-discriminatory examination procedure.

3. We affirm so much of the District Court’s order as

requires the new testing procedures to be validated by

means of empirical criterion-related validation techniques

if feasible.

4. We reverse so much of the District Court’s order as

requires the new testing procedure to be submitted to

plaintiffs for review.

5. We affirm that part of the District Court’s order

which provides a procedure for interim appointments if

desired by defendant.

6. We reverse so much of the District Court’s order as

provides for promotion by quota following the establish-

ment of new civil service testing procedures.

7. We reverse that part of the District Court’s order

which includes counsel fees as part of plaintiff's costs,

8. We remand to the District Court for such further

orders as are required by and consistent with this opinion. °

I-1

APPENDIX I--ORDER ON REMAND, AUGUST 3,

1975.

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF NEW YORK,

EDWARD L. KIRKLAND and NATHANIEL HAYES,

each individually and on behalf of

all others Similarly situated,

Plaintiffs,

-agatnst-

THE NEW YORK STATE DEPARTMENT OF CORREC-

TIONAL SERVICES; RUSSELL OSWALD, indi-

vidually and in his Capacity as Com-

missioner of the New York State Depart-

ment of Correctional Services; THE NEW

YORK STATE CIVIL SERVICE COMMISSION;

ERSA POSTON, individually and in her

capacity as President of the New York

State Civil Service Commission and

Civil Service Commissioner; MICHAEL N.

SCELSI and CHARLES F. STOCKMEISTER,

each individually and in his capacity

as Civil Service Commissioner,

Defendants,

-and-

ALBERT M. RIBIERO and HENRY L. COONS,

Intervenors-Defendants.

73 Civ. 1548 MEL.

I=2

APPENDIX I

This action having been remanded to

the Court by the Court of Appeais for

Second Circuit for such further Orders

as are required by the Court of Appeals

Opinion and order dated August 6, 1975

which affirmed in part and reversed in

part the Order and Decree entered herein

by this Court on July 31, 1974, it is

ORDERED:

1. That the Order and Decree of

July 31, 1974 is vacated and that this

Order shall substitute therefor in all

respects.

2. Examination No. 34-944 is de-

clared invalid as violating the Consti-

tution of the United States.

3. The defendants New York State

Department of Correctional Services and

New York State Department of Civil

a

i-3

APPENDIX I

Service, and the named defendants Oswald,

Poston, Stockmeister and Scelsi, and

their agents, employees, and successors

in office are permanently enjoined from

(a) making permanent or provisional ap-

pointments to the position of Correction

Sergeant (Male) in the New York State

Department of Correctional Services upon

the results of Examination No. 34-944 or

any eligible list promulgated pursuant

to that examination; and (b) administer-

ing, promulgating eligible lists based

upon, or in any way acting upon the re-

sults of Examination No. 34-944 for the

position of Correction Sergeant (Male).

4. The defendants, their agents,

employees, and successors in office, are

mandatorily enjoined to develop a lawful

non-discriminatory selection procedure

I-4

APPENDIX I

for the position of Correction Sergeant

(Male). In so doing, they shall adhere

to the following general guidelines:

(a) The new selection proce-

dure shall be developed within the short-

est practicable period.

(b) The new selection proce-

dure shall be developed and, before usage

for promotional purposes, validated in

accordance with the EEOC Guidelines on

Employment Selection Procedures, 29 C.F.R.

§1607.1 (1970), as those Guidelines are

Or as later revised.

(c) All validation studies

pursuant to this decree shall be perform-

ed by means of empirical, criterion-

related validation techniques insofar as

feasible.

I=-5

APPENDIX I

(d) The selection procedure

to be developed may include a written

examination, and may also include Other

selection instruments or procedures.

5. During the period required for

the development of a lawful, n

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