Opposition — Althiser v. New York State Department of Correctional Services

Supreme Court

DEC #4 1983

IN THE

f

Supreme Court of the States

October Term, 1983

FREDERICK E. ALTHISER, et al.,

Petitioners,

against

NEW YORK STATE DEPARTMENT OF

CORRECTIONAL SERVICES, et al.,

Respondents.

RESPONDENTS’ BRIEF

IN OPPOSITION TO CERTIORARI

Rospert ABRAMS

Attorney General of the

State of New York

Attorney for Respondents

Two World Trade Center

New York, New York 10047

(212) 488-6044

Perer H. ScuirF

Acting Attorney-in-Chief

Appeals and Opinions

BARBARA B, BUTLER

Anw Horow!tTz

Assistant Attorneys General

Of Counsel

Question Presented

Whether the Court of Appeals was correct in upholding

the settlement of this Title VII action where a prima facie

case of discrimination had been established by a statistical

demonstration of disproportionate racial impact, and where

the terms of the settlement were both reasonable and in

accord with federal law.

Parties in Courts Below

The parties to the proceedings below, in addition to

those named in the caption, include the following named

plaintiffs-appellees: Edward L. Kirkland, Joseph P. Bates,

Sr., and Arthur E. Suggs, each individually and on behalf

of all others similarly situated.

The following named defendants-appellees :

Thomas A. Coughlin III, individually and in his ¢a-

pacity as Commissioner of the New York State Depart-

ment of Correctional Services, the New York State

Civil Service Commission, Joseph Valenti, individu-

ally and as President thereof and as a Civil Service

Commissioner, Josephine Gambino and James McFar-

land, individually and in their capacity as Civil Service

Commissioners ;

The following named intervenors-appellants, respond-

ents herein:

Robert MeClay, Ray Smith, Charles Mutz, Gary Bart-

lett, Bob Pressel. L. Kinney, Gene Vanover, Herbert

Jones, Larry George, Raymond Peters, Gordon Wells,

Donald Carey, R. Vissmer, P. Buffalo, 8S. Delsanto, J

O’Rourke, R. Weed, D. Butterton, T. Brooks, James

Bonnell, Jr., Ronald Krom, Wayne Elberth, Paul

Borko, Ken Curry, John Higgins, Ronald Kurz, George

Ribas, Mark Reeves, Joseph Mitchell, Al Luning, Ron-

ald Kelly, Arthur Shuts, E. Hanscom, R. Wilson, V.

Scott, V. Dunn, C. Harvey.

The following named intervenors-appellants, petitioners

herein:

Paul W. Annetts, Edward T. DeVoe, Robert G. Knapp,

William C. Badger, Elwyn M. Dickson, Lewis J. Kor-

dyl, Jr., Arlo G. Baker, Anthony J. DiDonna, Marvin

Kushner, Philip Barbarello, Edward R. Donnelly, Ed-

ward R. LaDuke, John A. Battista, Richard P. Dono-

hue, Garry J. LaVarnway, Edward J. Beauchemin,

Donald J. Dunn, David Lavigne, Robert L. Bennett,

William Eddy, Morton D. Lawliss, James E. Berg,

Carl Edwards, James H. Layhee, Ronald D. Besimer,

Kenneth Eissing, George Liberty, John F. Bickford,

Paul E. Ellsworth, Joseph Michael Liffland, Allen F.

Blades, William LH. Eull, Aelred F. Lippold, Howard

Block, Ludirck E. Fabian, Elendo J. Lombardi, John

O. Block, John Festa, Robert E. Mahoney, Ronald E.

Bodge, Thomas R. Fish, Richard P. Malark, Wilbert

Boileau, Peter J. Fitzgerald, Francis R. Maloney,

Charles William Bowes, Thomas R. Fitzgerald, How-

ard Maneely, Harmon Boyd, Henry L. George, George

W. Manor, Marilyn J. Bradt, John F. Gilsenan, John

McCabe, Robert Butchino, Orville J. Gload, Robert J.

McClellan, Carl C. Caldwell, Kenneth J. Goeway, Rus-

sell J. MeClennan, Alexander D. Campbell, Richard W.

Gordon, Patrick B. MeGee, Thomas E. Canning, Alan

A. Gratto, Gordon C. Melville, Winifred V. Carron,

Daniel B. Green, John T. Miner, Richard A. Cherry,

Melvin R. Greenfield, Gary L. Mitchetti, Norman W.

Christian, James C. Haight, James H. Morgan, Lois

B. Coffey, Charles J. Hamel, Ferene Morvai, Ismael

C. Colon, James IH. Handlin, Jr., Ronald W. Moscicki,

Clarence William Colwell, Neil Harris, H.J. Mulhall,

Dennis M. Conroy, Ronald D. Haseltine, Carl A. Nico,

James T. Conway, Thomas Heffernan, Gary C. Nolan,

William L. Corlew, Roy W. Henneberg, Ronald R.

Norton, Fred R. Coutant, Hugh P. Hicks, Louis Padilla,

Wayne L. Cuer, Dennis E. Hoff, Max A. Palmer,

Iv

Joseph DeCaterina, Bruce A. Kessler, Wilfred V. Pa-

rotte, Andrew J. DeGaust, Robert J. Kirby, Melvin A.

Pavquette, Jr., Richard Delany, Frank Kisch, Daniel

M. Pelton, Daniel L. Denkenberger, Harry E. K. Ages,

Keith D. Perkings, Thomas P. Devlin, Jr., Charles A.

Kline, Walter F. Pitt, Brian Pleace, Robert M. Semski,

Gary Tauurmins, Allyn D. Plowe, John Senchack, Neil

A. Terwilliger, Richard S. Pochintesta, David A.

Sharp, Francis W. Tessier, James L. Pollack, Arthur

P. Sheets, Dennis Thompson, William D. Poole, Joseph

H. Sheldon, James Tompkins, Doughlas W. Powers,

John M. Sherlock, Robert J. Tyrell, Roebrt E. Racette,

Harvey Jay Singer, Augustine E. VanOrden, John R.

Rafferty, James C. Sipe, Roger N. Walker, Leonard

Fred Rayce, Francis J. Sluka, Conrad K. Walter, Wal-

C. Rathbun, Ronald C. Skinner, David W. Walsh,

ter Redgate, Larry D. Smith, Jack Weiman, Walter

J. Rivers, Warren Smith, Betty J. Welch, Stanley M.

Rushford, Norman Steinhilber, Milo Williams, Charles

T. Ryan, Arthur J. Steinhofer, Ralph J. Wolcott,

Dennis Ryan, William J. Stiles, Donald R. Wolff,

George R. Schmidt, Harold L. Streigold, Arthur Wood,

Patsy J. Sciarra, Paul F. Stringham, Norman M. Ze-

linsky, William G. Scott, John M. Sullivan.

TABLE OF CONTENTS

PAGE

Question Presented I

Parties in Courts Below 1

Statement of the Case 1

Litigation History of Examinations for Correc-

tions Supervisory Security Titles 2

The Correction Lieutenant Examination

The Stipulation of Settlement 5

Summary of Argument 15

Argument—The Court of Appeals Properly Upheld

the Stipulation of Settlement Because a Prima

Facie Case of Discrimination Has Been Clearly

Established and the Settlement Reached Is Fair,

Reasonable and Legal in All Respects 16

Conclusion 27

Supplemental Appendix

Affidavit of Ann Horowitz, sworn to February 24,

1982 SAl

Vi

TABLE OF AUTHORITIES

Cases:

United States Supreme Court

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 16,19

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 16

Bishop v. Wood, 426 U.S. 341 (1976) 20

Board of Regents v. Roth, 408 U.S. 564 (1972) 20

Castaneda v. Partida, 430 U.S. 482 (1977) 8

Dothard v. Rawlinson, 433 U.S. 321 (1977) 16

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 17

United Steelworkers of America v. Weber, 443 U.S.

193 (1979) 18, 19, 25

United States Courts of Appeals

Blake v. City of Los Angeles, 515 F.2d 1367 (Sih Cir.

1979) 20

Bridgeport Guardians v. Bridgeport Civil Service

Commission, 482 F.2d 1333 (2d Cir. 1973) 19

Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir.

1972) 19

Guardians Association of New York City Police De-

partment, Inc. v. Civil Service Commission, 630

F.2d 79 (2d Cir. 1980), cert. den. 452 U.S. 940

(1981) 6, 19

Horace v. City of Pontiac, 624 F.2d 765 (6th Cir. 1980) 20

Jones v. N.Y.C. Human Resources Administration,

528 F.2d 696 (2d Cir. 1976) 19

Vil

Kirkland v. New York State Department of Correc-

tional Services, 374 F. Supp. 1361 (S.D.N.Y.

1974), aff’d in part, rev’d in part, 520 F.2d 420

(2d Cir.), reh. en banc den., 531 F.2d 5 (1975),

cert, den. 429 U.S. 823, reh. den. 429 U.S. 1123

(1976), 482 F. Supp. 1179 (S.D.N.Y.), aff’d, 628

F.2d 1214 (2d Cir 1981) 2

Memphis Fire Department v. Stotts, 679 F.2d 541 (6th

Cir. 1982), cert. granted, US. 77 L. Ed.

2d 1331 (1983)

Patterson v. Newspaper & Mail Deliverers’ Union of

N.Y. & Vicinity, 384 F. Supp. 585 (S.D.N.Y. 1974),

aff’d, 514 F.2d 767 (2d Cir. 1975), cert. den. 427

U.S. 911 (1976)

Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir.

1982)

Prate v. Freedman, 538 F.2d 42 (2d Cir. 1978)

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.

1971)

Setser v. Novak Investment Co., 657 F.2d 962 (8th

Cir. 1981)

Teal v. Connecticut, 654 F.2d 133 (2d Cir. 1980), aff’d,

457 U.S. 440 (1982)

United States v. Bethlehem Steel Corporation, 446

F.2d 652 (2d Cir. 1971)

United States v. City of Alexandria, 614 F.2d 1358

(5th Cir. 1980)

United States v. City of Miami, 614 F.2d 1322 (5th

Cir. 1980), rev’d in part, 664 F.2d 435 (5th Cir.

1981) (en banc)

PAGE

, 3, 19

18

18

16

20

17

11,17

Vill

Vulcan Society v. Civil Service Commission, 490 F.2d

387 (2d Cir. 1973)

Williams v. Colorado Springs, Colorado School Dis-

trict, 641 F.2d 835 (10th Cir. 1981)

New York State Courts

Matter of Adolph v. Dept. of Personnel, 71 Mise. 2d

68 (Sup. Ct. N.Y. Co. 1972), aff’d, 41 A.D. 2d 713

(1st Dept. 1973), aff’d, 33 N.Y. 2d 993 (1974)

Matter of Andersen v. Rice, 277 N.Y. 271 (1938)

Burke v. Sugarman, 35 N.Y.2d 39 (1974)

Cassidy v. Municipal Civil Services Commission, 37

N.Y. 2d 526 (1975)

Colton v. Berman, 21 N.Y. 2d 322 (1967)

Diocese of Rochester v. Planning Board of Town of

Brighton, 1 N.Y. 2d 508 (1956)

Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512

(1949), cert. den. 339 U.S. 981 (1950)

Matter of Edgerton, 84 A.D. 2d 881 (3d Dep’t 1981)

Fink v. Cole, 1 N.Y. 2d 48 (1956)

Matter of Fink v. Finnegan, 270 N.Y. 356 (1936)

Matter of Fitzgerald v. Conway, 275 App. Div. 205

(3d Dep’t 1949), appeal denied 299 N.Y. 798

(1949)

Matter of Katz v. Hoberman, 28 N.Y. 2d 530 (1971)

Matter of Mena v. D’Ambrose, 58 A.D. 2d 514 (1st

Dep’t 1977)

PAGE

19

20

22, 24

25

1x

PAGE

Matter of Mitchell v. Poston, 41 A.D. 2d 886 (4th

Dep’t 1973) 22

Matter of Mulkeen v. Bronstein, 75 Misc. 2d 110 (Sup.

Ct. N.Y. Co.), aff’d, 43 A.D. 2d 664 (1st Dep’t

1973) 24, 25

People ez. rel. Balcolm v. Mosher, 163 N.Y. 32 (1900) 23

People ex rel. Buckley v. Roosevelt, 19 App. Div. 431

(1st Dep’t 1897) 22

Matter of Robbins v. Schechter, 7 Misc. 2d 436 (Sup.

Ct. N.Y. Co. 1957), aff’d, 3 A.D. 2d 1010 (1st Dep’t

1957), aff’d, 4 N.Y. 2d 935 (1958) 22

Ruddy v. Connelie, 61 A.D. 2d 372 (3d Dep’t 1975) 26

Stork Restaurant, Inc. v. Boland, 282 N.Y. 256 (1940) 25

Matter of Sullivan v. Taylor, 285 App. Div. 638 (1st

Dep’t), aff’d, 309 N.Y. 925 (1955) 24

Statutes:

Federal Rules of Civil Procedure 23 7

New York State Constituton

Article 1, § 11 26

Article 5, §6 21

Article 6, 45 25

New York Civil Service Law

§ 50 21

§ 61 23

New York State Code of Rules and Regulations

4 NYCRR § 4.2(a)

4 NYCRR § 67.1

9 NYCRR § 3.40

& 8 &

N THE

Supreme Court of the United States

October Term, 1983

Freperick E. Atruiser, et al.,

Petitioners,

against

New York State DerartTMENT OF

CORRECTIONAL Services, et al.,

Respondents.

PESPONDENTS’ BRIEF

IN OPPOSITION TO CERTIORARI

Statement of the Case

In October, 1981, a written examination for the title of

Correction Lieutenant in the New York State Department

of Corrections Services (‘‘Corrections’’), Examination No.

36-808, was administered by the New York State Depart-

ment of Civil Service (‘‘Civil Service’’). An eligible list,

based on that examination, was published in December,

1981. Plaintiffs, three black Correction Sergeants (re-

spondents here), brought this action in January, 1982,

2

against agencies and state officials (respondents here) on

behalf of themselves and other black and Hispanic mi-

norities who sat for the examination in question. Plaintiffs

alleged that use of the examination discriminated against

minorities.

Litigation History of Examinations for

Corrections Supervisory Security Titles

A review of the past ten years of litigation concerning

examinations for Corrections supervisory security titles is

necessary for a full understanding of the case.

In 1972, Civil Service administered a written test for

the position of Correction Sergeant. In 1974, the United

States District Court for the Southern District of New York

(Lasker, J.) held that the Sergeant’s ¢xamination uncon-

stitutionally discriminated against minorities, as it had an

adverse racial impact and was not adequately validated.

Kirkland v. New York State Department of Correctional

Services, 374 F. Supp. 1361 (S.D.N.Y. 1974), aff’d in part,

rev'd in part, 520 F.2d 420 (2d Cir.), reh. en bane de-

mied, 531 F.2d 5 (1975), cert. denied, 429 U.S. 823, reh.

denied, 429 U.S. 1123 (1976) (‘‘Kirkland Sergeants’’).*

The district court ordered defendants to develop new selec-

tion procedures to be validated by means of an empirical,

criterion-related validation study.

* The full citation is Kirkland vy. New York State Department of

Correctional Services, 358 F. Supp. 1349 (S.D.N.Y. 1973) (mtn. to

dsms or change venue den. ), 374 F. Supp. 1361 (1974), unreported

order dated 7/14/74 granting motion to intervene by Ribiero and

Coons, but denying intervenors class status, 374 F. Supp. 1361, aff’d

in part, rev. in part, 520 F. 2d 420 (2d Cir.), reh. en banc den., 531

F. 2d 5 (1975), cert. den. 429 U.S. 823, reh. den. 429 U.S. 1123

(1976), 482 F. Supp. 1179 (S.D.N.Y. 1980) (aj proving relief exam

on pitfs. and defts. for summy judmt), aff'd 628 F. 2d 1214 (S.D.N.Y.

1981) pltfs. mtn. for atty. fees against intervenors den. ).

3

Between 1974 and 1979, the selection procedures re-

quired by the district court were developed and admin-

istered. The final selection procedures consisted of both

a written examination and performance evaluation. A

criterion validation study was performed which showed

that minorities characteristically performed less well than

non-minorities on the selection procedures, but that this

difference was not reflected in differences in job perform-

ance. In light of these analyses the district court found

that use of the test as originally scored would be unfair

and, therefore, that the use of the selection procedures

should be revised. Jd. 482 F. Supp. 1182 (S.D.N.Y. 1980).

The manner of revision adopted by defendants, and _ ap-

proved by the district court, to assure fairness was the

addition of 250 points to the final scores of minority can-

didates. The score adjustment was challenged by a group

of non-minority intervenors, but the district court upheld

the adjustment. Kirkland Sergeants, 482 F. Supp. 1179

(S.D.N_Y.), aff’d, 628 F.2d 796 (2d Cir. 1980), cert. demed,

450 U.S. 980 (1981).

In 1981, employees of the Department of Correctional

Services successfully petitioned the Supreme Court of the

State of New York, Albany County, for an order compelling

Civil Service to administer competitive examinations for

the positions of Correction Lieutenant and Correction Cap-

tain. Matter of Edgerton, 84 A.D. 2d 881 (3d Dep’t 1981).

Examination No. 36-808 for Correction Lieutenant was ad-

ministered on October 3, 1981. Examination No. 37-526 for

Correction Captain was administered on January 30, 1982.

The Correction Lieutenant Examination

The written examination for Correction Lieutenant was

administered to 728 candidates. One hundred and sixty-

eight (23% ) of the candidates were minority candidates. Of

the candidates, 92% of the white candidates passed the

written test, while 86% of the black candidates and 92%

of the Hispanic candidates similarly passed the test. An

eligible list of approximately 670 persons was certified by

Civil Service on December 23, 1981. While the overall

minority representation on the list was approximately 22%,

the minority representation was disproportionately low at

the top of the list and disproportionately high at the bottom

of the list. The final score on the certified list also included

points for seniority and veterans’ credits. The racial/

ethnic breakdown of the list was:

Number of Persons in

Order of Final Score % Min. No.Min. No. Non-Min.

1-107 5.6 6 101

108-229 9.8 12 110

230-298 16.0 1] os

299-416 19.5 23 95

417-525 29.4 32 77

526-672 38.6 56 91

(A. 5a).*

By January, 1982, 171 appointments to the position of

Correction Lieutenant had been made from the list. Of

these appointments, 17 appointments, constituting approxi-

mately 10% of the appointments, were minority.

* Numbers preceded by “A” refer to pages of the Appendix ; those

preceded by “SA” refer to pages in the Supplemental Appendix.

The Stipulation of Settlement

This lawsuit was commenced by way of an order to show

cause signed January 15, 1982. Plaintiffs claimed that the

examination was discriminatory because: (i) it resulted in

a disproportionately low number of minority appointments ;

(ii) the results of the examination determined who could

sit for the Captain’s examination; and (iii) the examination

was not job related (A. 2f).

Between January 19, 1982 and January 21, 1982, based

on numerous telephone conversations, a settlement in prin-

ciple was reached between plaintiffs and defendants as to

the administration of a new Captain’s examination and

the use of plaintiffs’ expert to develop new examinations

for Lieutenant and Captain. The only issue then left for

discussion was the possibility of ‘‘accelerated’’ promotions

of minorities to permanent Lieutenant (Horowitz Affidavit,

p. 2). These discussions resulted in the motion being ad-

journed sine die (SA. 1-2).

However, on February 17, 1982, plaintiffs again sought

a temporary restraining order from the district court, which

the court refused to sign, setting the matter down for

argument on February 26, 1982. The district court heard

argument on that day on plaintiffs’ motion for preliminary

relief, and adjourned the matter to March 17, 1982 for the

parties to engage in discovery to determine if the hearing

on the motion could be consolidated with the trial. De-

fendants answered the complaint in March 1982, by claiming

that the challenged examination was job related and had

been validated as a content valid examination.

6

The parties then engaged in discovery. Interrogatories

were served and depositions taken. On March 17 and again

on May 11, 1982 there were further conferences with the

court concerning the progress of discovery and the selection

of a hearing-trial date.

During the course of discovery, settlement discussions

were resumed and the parties were able to reach an agree-

ment in May 1982. Petitioners wrote to the district court

about their desire to seek intervention in June 1982. A

conference was held in July 1982, at which the parties

and counsel for petitioners were present and the terms of

settlement were discussed. In August 1982, the parties en-

tered into a stipulation of settlement which was submitted

to the district court for approval (A. 5c).

The settlement first established procedures for making

interim appointments to Correction Lieutenant from eli-

gible list 36-808. It provides that:

1. All the individuals on the list will be divided into

three zones. Each zone shall be deemed to be a single score

for purposes of making appointments. The size of the

zones was based on a statistical computation of the standard

error of measurement as discussed in Guardians Associ-

ation of N.Y.C. v. Civil Service, 630 F.2d 79 at pages 102-

103 (2d Cir. 1980).

2. Appointments from the list shall be made first from

zone 1, then from zone 2 and finally from zone 3.

8. Within each zone, appointments shall first be made

from eligible minority candidates, if minority candidates

are available and willing to accept appointment, until mi-

7

norities constitute at least 21% of all appointments. There-

after, minorities will be appointed within a zone in a pro-

portion of one minority to four non-minority. However,

once minorities within a zone have been exhausted, appoint-

ments will be made from the non-minority candidates re-

maining within the zone.

4. All eligibles shall be offered appointment until the

list is exhausted (A. 8-9f).

The settlement next establishes procedures for the de-

velopment and use of new, long term selection procedures

for future promotions to Correction Lieutenant and Cap-

tain. These procedures include consultation with an in-

dustrial psychologist designated by plaintiffs, consideration

of alternatives to a written test, and the possible use of

alternatives to a written test, and the possible use of sepa-

rate frequency distribution (A. 10-13f).

Notice of the proposed settlement was given pursuant

to Rule 23. On September 29, 1982, a hearing was held at

which the district court permitted non-minorities who were

on the eligible list to intervene for the purpose of objecting

to the terms of the settlement. Additional hearings were

held on October 4 and 14, 1982 (A. 3-4a).

On November 9, 1982, the district court issued its order

approving the Stipulation of Settlement. The court found

that the settlement was fair, reasonable and lawful in all

respects and that the objections to the settlement were with-

out merit (A. 1d).

An opinion of the court was issued on December 1, 1982.

The court reviewed the racial makeup of the eligible list

8

and appointments made from the list as of July 28, 1982

and September 29, 1982.° It found that the list was 22%

minority, and that of the 222 appointments made as of

July 28, 1982, only 9% were minority. The court found the

discrepancy between this percentage and the percentage of

minority appointments to be expected from a random se-

lection was almost 6 standard deviations, and noted that

under the holding in Castaneda v. Partida, 430 U.S. 482

(1977) a difference of more than two or three standard

deviations establishes a prima facie case of discrimination

(A. 9-10e).

The district court then examined the terms of the settle-

ment and found two basic elements: (1) measures to ad-

just the present list to correct for disproportionate racial

impact, and (2) development of new selection procedures

for future lists (A. 10c).

The district court found that the settlement was a logi-

eal outcome of the Kirkland Sergeants litigation and that

the Kirkland Sergeants case provided clear precedent for

settlement in this case. Specifically, the district court

stated that the Court of Appeals’ approval in Kirkland

Sergeants of an interim hiring ratio for minorities, pend-

ing the development of a new selection procedure, and the

interim hiring ratio for minorities achieved by the State’s

voluntary departure from a strict ‘‘rank order’’ list by

adjustment of minority candidates’ scores, was precedent

for the departure from the strict rank order agreed to in

this case (A. 13-14c).

* As of July 28, 1982, 222 appointments had been made from the

list, and twenty of these appointments were minority (9%). And, as

including

of September 29, 1982, 225 appointments had been made. i

23 minority, or approximately 9% (A. 9-10c).

9

The district court then concluded that the settlement

was reasonable, since the relief provided to the plaintiffs

was modest and tailored to plaintiffs’ claims. In this re-

gard, the district court found that the original rank-ordered

list was based on score differences so slight as to be mean-

ingless vis-a-vis actual job performance, and that ranking

according to zones was a more realistic use of test scores.

The district court also found that although random-ranking

within zones would result in a ‘¢eolor-blind’’ list, random-

ranking would provide no remedy for the disproportionate

number of non-minority appointments already made, and

that after trial, those appointments might have been re-

voked—clearly a more drastic remedy than the limited

minority preference provided for in the settlement (A.

14-16c).

The district court structured the balance of its analysis

pertaining to the reasonableness and legality of the settle-

ment around intervenors’ objections. It summarized those

objections as follows: first, that no affirmative relief can

be granted until after a full trial at which plaintiffs prove

disproportionate impact, and a judicial finding is made as

to the job-relatedness of the examination; and second, that

even if the existing record justified some relief, the minority

preference violated the Federal Constitution and State

Civil Service Law (A. 16-17c).

The court rejected intervenors’ first contention, finding

that, because settlement is favored and accorded a pre-

sumption of validity (A. 17-18c), the issue to be resolved

when a Title VII settlement imposes some detriment on non-

minorities, is whether there is a reasonable basis for im-

posing such detriment (A. 2le). The court found such a

10

reasonable basis in the adverse impact of the examination

and in the nature of the terms of the settlement. Also, the

court held, that there is no requirement that a defendant

rebut a prima facie case (A. 21-22c). As for the terms of

the settlement, the district court found that in settling the

case, the State is, in principle, engaging in an affirmative

action plan, and that no judicial determination of constitu-

tional or statutory violation is required as a predicate for

such action (A. 23-25c).

The district court then dealt with intervenors’ second

contention: that the settlement violated New York State

and Federal Law. The court found that the establishment

of zones does not violate State law concerning ‘‘merit and

fitness’’ (A. 26c); also that the settlement does not violate

intervenors’ due process or equal protection rights. Spe-

cifically, the district court found that the New York Court

of Appeals has held that a person on an eligibility list

has no property right in his position on that list and,

therefore, that intervenors’ due process claims are without

merit (A. 27c). The district court also found that the

settlement did not impose an unlawful quota because the

preference was interim in nature and was tailored to the

specific claims of the plaintiff class. Finally, the court

found that the settlement did not unnecessarily ‘‘trammel’’

the interests of non-minority employees because it did not

require the discharge of any non-minority employees, did

not create an absolute bar to their advancement, is a tem-

porary mesaure, and is intended to eliminate a racial im-

balance (A. 30c).

The Court of Appeals upheld the district court both

with respect to its limitation on intervention and the ap-

proval of the settlement agreement.

11

In its opinion, the Court of Appeals first dealt with the

question of the limit of intervention granted to non-

minorities by the district court. The Court rejected the

intervenors’ rationale that had they been granted judicial

intervention, they would have had equal standing with the

original parties and, therefore, that their consent to the

settlement agreement would have been required. Instead,

the Court of Appeals agreed with the reasoning of the

district court that the sum of rights possessed by an in-

tervenor depends on the nature of the intervenor’s interest

(A. 14a).

The Court of Appeals stated that the intervenors were

non-minorities and non-minorities ‘‘do not have a legally

protected interest in the mere expectation of appointments

which could only be made pursuant to presumptively dis-

criminatory employment practices.’’ (A. 14a). Therefore,

the legal rights of non-minorities are generally not adverse-

ly affected by reasonable and lawful race-conscious hiring

or promotional remedies, whether imposed by the court fol-

lowing litigation on the merits or created by settlement (A.

14a). The interests of non-minorities in such a situation

then involve whether or not the decree or agreement is un-

reasonable or unlawful, but do not require their consent as a

condition to settlement.* The Court of Appeals specifically

stated that to enable all intervenors in Title VII cases to

veto proposed compromises ‘‘would certeinly hamper ef-

forts to settle Title VII cases.’’ (A. 15a).

*The Court distinguished the intervenors from the union in

United States v. City of Miami, 664 F.2d 435 (Sth Cir. 1981) (En

banc) because the decree in Miami bound the defendant union to a

compromise which altered its contractual rights while the intervenors

had no such contractual rights (A. 18-19a).

12

The Court of Appeals next reviewed the propriety of

the district court’s approval of the settlement agreement.

The Court began by stating that ‘‘It is settled that volun-

tary compromise is a preferred means of achieving Title

VII’s goal of eliminating discrimination.’’ (A. 20a). The

Court held that when such a settlement employs race-

conscious remedies, a court must address itself to two

inquiries: (1) whether there is an existing condition which

can serve as a proper basis for a creation of race-conscious

remedies, and (2) whether specific remedies are unreason-

able or unlawful. The Court then addressed each of these

inquiries (A. 21a).

The Court of Appeals agreed with the district court that

the statistical demonstration of the eligibility list’s dis-

proportionate racial impact established a prima facie case

of Title VII discrimination. The Court rejected the inter-

venors’ contention that a judicial determination that the

examination was not job-related was required before a

proper basis for settlement could exist. According to the

Court, intervenors’ argument ‘‘would turn Title VII law

on its head since, as intervenors themselves concede, job-

relatedness is never presumed and only becomes an issue

after it is raised by the defendant.’’ (A. 23a). The Court

also held that requiring that no Title VII testing case could

be settled until a judicial determination on the test’s job-

validity was made would seriously ‘‘undermine Title VII’s

preference for voluntary compliance.’’ (A. 23a). The

Court of Appeals expressly stated that neither Title VII

nor the Constitution prohibits compromise agreements em-

ploying race-conscious remedies which are agreed to prior

to judicial determination on the merits (A. 23a). The Court

13

held that defendants’ entrance into a compromise without

rebutting an established prima facie case amounts to an

admission of unlawful discrimination for purposes of Title

VII (A. 25a).*

As for the second inquiry concerning the reasonableness

and the legality of the specific remedies of the settlement,

the Court of Appeals held that the inquiry must be an-

swered by measuring the terms of settlement against the

allegations of the complaint and the relief which might have

been granted if the case went to trial. The remedies must

be related to the objective of eliminating the alleged in-

stance of discrimination and must not unnecessarily tram-

mel the interests of affected third parties (A. 28-29a).

Applying that standard to this case, the Court of Appeal

found that the settlement was reasonable and legal since

the terms of the settlement substantially related to the ob-

jective of eradicating the discriminatory impact caused by

the examination and are not overly oppressive to the in-

terests of non-minorities (A. 29a).

Specifically, the Court of Appeals reviewed the future

selection procedures provided by the settlement and found

that these procedures operated solely to eliminate adverse

impact and to assure compliance with Title VII in the fu-

ture and did not trammel on any interests of any minorities

(A. 29a). The Court recognized that small differences be-

tween the scores of candidates indicate very little about the

* With respect to the disclaimer of any admission of unlawful dis-

crimination used in the settlement, the Court of Appeals stated that

such disclaimer is used in many compromises of this nature to protect

defendants from gt Bene geen available to large back-pa

awards. Therefore, the construed the disclaimers to be an

mission that there is a statistical disparity together with a reservation

of the right to explain in the future (A. 25a).

14

candidates’ merits and fitness, that the zones contained

candidates whose final scores differed by no more than four

points, and that the size of the zones was based on a sta-

tistical computation of the likely error measurement. The

zoning, therefore, was proper since it created a more valid

measure to assess the test scores and eliminated the central

cause of adverse impact, the rank ordering system. The

Court of Appeals went on to state that since the zone sys-

tem preserves some of the results of the examination where

an employer could have resorted to random selection from

within the entire group, the use of zones may have had the

least detrimental effect to the interest of minority candi-

dates who obtained higher test scores (A. 30-31a).

The Court of Appeals rejected the intervenors’ conten-

tion that use of zones deprives intervenors of vested prop-

erty rights without due process of law. The Court referred

to the New York Court of Appeals holding in Cassidy v.

Municipal Civil Service, 37 N.Y.2d 526, 529 (1975) where

the New York Court of Appeals held that a person on an

eligibility list does not possess any mandated right of ap-

pointment or any other legally protected interest. The

Court of Appeals below went on to state ‘‘the only relevant

state right intervenors possess is the right to challenge the

settlement on the ground that the manner in which it pro-

vides for appointments is unlawful, arbitrary, and capri-

cious, or constitutes an abuse of discretion,’’ which rights

intervenors had exercised in the district court (A. 31-32a).

Finally, the Court of Appeals found that the race-con-

scious appointment procedures envisaged by the settlement

were not unreasonable or illegal. The Court found that

interim race-conscious procedures are acceptable when (1)

15

they mandate the appointment of members of the plaintiff

class who are victims of the discriminatory practice and

(2) they calculate the number of victims to be appointed

by reference to the percentage of victims in the total appli-

cant pool (A. 32-33a). According to the Court, ‘‘ because

such interim selection procedures do not go beyond the

simple elimination of the challenged practice’s disparate

impact, they are not unlwaful quotas, and are justified

whenever a Title VII violation has occurred.’’ (A. 33a).

The Court of Appeals reviewed the appointment procedures

set forth in the settlement and found that they met these

two criteria (A. 33-34a).

Summary of Argument

The Court below held that the Stipulation of Settlement

entered into between minority plaintiffs and the New York

State defendants, which resolved a Title VII class action

litigation involving a promotional examination, was prop-

erly approved by the district court. The basis for the Court

of Appeals’ holding was that a prima facie case of discrimi-

nation was established by reason of a statistical disparity

and that the terms of the settlement were fair, reasonable

and legal in all respects.

Petitioners argue that a prima facie case is an insuffi-

cient and legally infirm basis upon which to settle a Title

VII case and that there is a need to establish standards

upon which to base settlement of Title VII litigation. How-

ever, courts, including this Court, have uniformly held that

a prima facie case of discrimination is a proper basis for

settling Title VII litigation. The standards which the

courts have applied is that the terms of the settlement be

16

fair, reasonable and legal. The appeals court holding is,

therefore, in no way unusual and certiorari should be denied.

ARGUMENT

The Court of Appeals Properly Upheld the Stipula-

tion of Settlement Because a Prima Facie Case of Dis-

crimination Has Been Clearly Established and the

Settlement Reached Is Fair, Reasonable and Legal in

All Respects.

The courts have consistently held that any settlement of

a Title VII action shall be approved where a prima facie

case of discrimination has been established and where the

terms of the settlement are fair, reasonable and legal. See

Alexander vy. Gardner-Denver Co., 415 U.S. 36 (1974);

Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982);

Patterson v. Newspaper & Mail Deliverers’ Union of N.Y. &

Vicinity, 514 F.2d 767 (2d Cir. 1975). In this case, as the

Court of Appeals held, a prima facie case was established

and the terms of the settlement were fair, reasonable and

legal.

Here, the prima facie case was established by statistical

evidence. It is now beyond dispute that a prima facie case

of discrimination, which satisfies the plaintiff’s burden of

coming forward with evidence, is established by showing

that the challenged practice, while race-neutral on its face,

nonetheless has a disproportionate impact on a particular

class. Teal v. Connecticut, 645 F.2d 133, 137 (2d Cir. 1980),

aff’d, 457 U.S. 440 (1982) ; Dothard v. Rawlinson, 433 U.S.

321 (1977); Albemarle Paper Co. Moody, 422 U.S. 405

17

(1975) ; Griggs v. Duke Power Co., 401 U.S. 424 (1970). A

showing of adverse impact can be, and typically is, estab-

lished by statistical evidence.

Where, as here, objections to settlement of a Title VII

class action are raised by non-minorities whose interests

will be affected by ‘‘benefits’’ granted to plaintiffs, the

standard to be applied is that the terms of settlement must

not be unreasonable or illegal. In applying this standard,

reasonableness is considered in the context of whether or

not the relief violates the non-minorities’ rights under the

Fourteenth Amendment of the United States Constitution.

United States v. City of Miami, 664 F.2d 435, 441 (5th Cir.

1981) (en bane); United States v. City of Alexandria, 614

F.2d 1358, 1362-1363 (5th Cir. 1980).* In applying the

standard to this case, then, the issue to be decided is whether

the settlement violates either Federal or New York State

law. As the Court of Appeals found, it did not.

Petitioners contend that terms of the settlement violate

the Equal Protection clause of the United States Constitu-

tion and deprive them of vested property rights without

due process of law. As the Court of Appeals found, both

claims are without merit.

Petitioners’ equal protection argument—that the race-

conscious terms of the settlement constitute illegal, reverse

* Petitioners’ reliance on the fact that certiorari was granted in

Memphis Fire Department v. Stotts, 679 F.2d 541 (6th Cir. 1982),

placed. While Stotts is a Title VII case involving public employees

which was settled, this Court granted certiorari on the issue of

the district court's authority to modify the consent decree and denied

certiorari on the issue of the rights of non-minorities to intervention.

18

discrimination—must fail in light of the standards set forth

in the cases dealing with affirmative action plans. First,

an employer must demonstrate that such a plan was adopted

for the purpose of remedying a past racial imbalance in its

work force. United Steelworkers of America v. Weber, 443

U.S. 193, 208 (1979). The employer’s burden of showing a

remedial purpose is met by showing that a plan was en-

tered into as part of a settlement in a Title VII action.

Setser v. Novak Investment Co., 657 F.2d 962, 968 (8th Cir.

1981). Second, the remedy should not ‘‘unnecessarily

trammel the interests of white employees’? (Weber, 443

U.S. at 208), or, in other words, is a ‘‘reasonable’’ remedy.

City of Miami, 614 F.2d at 1338; Prate v. Freedman, 583

F.2d 42 (2d Cir. 1978). As the Court of Appeals found,

this settlement is eminently reasonable because (1) it ame-

liorates the past disproportionate impact of the examina-

tion without extending benefits to minorities beyond the

plaintiff class, and (2) its detrimental impact on non-mi-

norities is modest, especially relative to the detriment

which might have resulted from a remedy imposed after

trial.

The benefit to plaintiffs’ class from the settlement

amounts to reducing the adverse impact of the examination

by the creation of zones and providing for race conscious

hiring from within zones. However, when there are no

minorities remaining in the zone eligible for appointment,

non-minorities will be appointed even though this causes

the proportion of minority appointees to fall below 21%.°

Clearly, this relief is directly related to plaintiffs’ claims

* It should be noted that since the proportion of minorities hired

will fluctuate under the terms of the settlement, the settlement sets

forth hiring goals and not quotas.

19

that the examination was discriminatory because a dispro-

portionately low number of minorities had been appointed.

Also, since the settlement does not completely eliminate

the adverse impact of the examination on plaintiffs, the

relief is modest.

As for any detriment to non-minorities on the list, first

it must be recognized that the settlement benefits—in fact

gives priority treatment to—certain of the non-minorities.

Specifically, it provides, as the district court noted, that

all non-minorities who have already received appointments,

some 200 people, comprising 91% of those appointed to

date, will continue to hold their appointments and the

superior benefits afforded by those appointments. In addi-

tion, since the settlement requires that all persons on the

eligible list receive an offer of appointment, non-minorities

at the lower end of the list will have the opportunity of

appointment assured as positions become available in the

future.

As to petitioners’ contention that no delay is warranted

if the examination is job-related, it ignores the teaching of

Weber, 443 U.S. 193, that affirmative action plans are con-

stitutional.* In addition, it ignores the teaching of Albe-

marle, supra, 422 U.S. 405, that after a defendant has estab-

lished that an examination is job-related, the case is not

* In this context, it should be noted that the Second Circuit has

not yet held an examination to be job-related where the examination

had an adverse impact and where the validation was a content valida-

tion. Guardians Association v. Civil Service, 630 F.2d 79 (2d Cir.

1980) ; Jones v. N.Y.C. Human Resources Administration, F.2d

696 (24 Cir. yf Kirkland v. N.Y .S. Dept. of Correctional Serv-

ices, 520 F.2d iy Cir. 1975); Vulcan Society v. Civil Service

Commission, 490 F.2d 387 (2d Cir. 1973) ; Brid Guardians v.

Bridgeport Civil Service Commission, 482 F 2d 1333 (2d Cir. 1973) ;

Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972).

20

over because then the plaintiff still has the opportunity to

establish the availability of an alternative selection pro-

cedure which would have had less adverse impact. A num-

ber of Circuit Courts have struck down selection pro-

cedures where alternatives existed which had less adverse

impact. In United States v. Bethlehem Steel Corporation,

446 F.2d 652 (2d Cir. 1971), the Court of Appeals modified

seniority and transfer systems, holding that ‘‘ [i]f the legit-

imate ends of safety and efficiency can be served by a

reasonably available alternative system with less discrimi-

natory effects, then the present policies may not be con-

tinued.’’ Jd. at 662. Again in the case of a seniority sys-

tem, the Fourth Circuit held ‘‘[t]here must be available

no acceptable alternative policies or practices which would

better accomplish the business purpose advanced, or accom-

plish it equally well with a lesser differential racial im-

pact.’’ Robinson vy. Lorillard Corp., 444 F.2d 791, 798 (4th

Cir. 1971). See also, Blake v. City of Los Angeles, 515 F.2d

1367 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980);

Horace vy. City of Pontiac, 624 F.2d 765, 768 (6th Cir.

1980) ; Williams v. Colorado Springs, Colorado School Dis-

trict, 641 F.2d 835 (10th Cir. 1981).

As for petitioners’ due process claim, it is based on a

misapprenhension of the law. Petitioners conclude, from

the fact that New York law holds that they have an in-

terest in the eligible list, that due process entitles them to

defend the validity of the examination. No such conclusion

can be drawn. The extent to which intervenors are en-

titled to due process depends entirely on how New York

law defines their interest. Bishop v. Wood, 426 U.S. 341,

344 (1976); Board of Regents v. Roth, 408 U.S, 564 (1972).

21

And, nowhere in New York law is there any holding that

persons who feel themselves to be aggrieved by State ac-

tion can put themselves in the shoes of the State.

Indeed, a case relied upon by intervenors, Burke v.

Sugarman, 35 N.Y. 2d 39 (1974) (Althiser Petition at 21),

defines the limits of intervenors’ right. The only ‘‘right’’

that intervenors can derive from Burke is the right to chal-

lenge the settlement on grounds that the manner in which

appointments will be made under its terms is contrary to

law, arbitrary and capricious, or constitutes an abuse of

discretion. As the Court of Appeals held, petitioners have

already exercised that right in the district court.

Petitioners contend that the terms of the settlement

violate New York State law. The terms of which they

complain are zoning and race conscious appointments

within zones. According to petitioners these terms violate

the ‘‘merit and fitness’’ requirements of New York State’s

Constitution and Civil Service Law and the ‘‘rule of three’’

in the Civil Service Law. Petitioners are wrong. The

terms of the settlement comply with New York law in all

respects.

The ‘‘merit and fitness’’ requirements of New York law

are that promotion 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.

New York State Constitution, Article 5, 46; Civil Service

Law, §50. As the district court recognized, it is the zon-

ing provisions of the settlement which relate to these

‘merit and fitness’’ requirements since it is zoning which

changes the use of the results of the examination. And, as

the court held, zoning does not violate ‘‘merit and fitness’’

principles.

Specifically, the determination of what constitutes merit

and fitness, and when and how it can be tested for, is

vested in the Civil Service Commission. See People ez rel.

Buckley v. Roosevelt, 19 App. Div. 431 (1st Dept. 1897) ;

Matter of Fitzgerald vy. Conway, 275 App. Div. 205 (3d

Dept. 1949), appeal denied, 299 N.Y. 798 (1949). Here, the

Commission had determined, when it certified the list in

December 1981, that all those who passed Examination

36-808 met the requirements of merit and fitness. Since

only those who passed the examination will be grouped in

zones, the determination of the Commission concerning

merit and fitness remains unchanged.

As for the requirements of competitiveness, it means

simply that the results of an examination must be arrived

at by use of an objective standard, capaable of review, and

not by the subjective standards of the examiner. Matter

of Fink v. Finnegan, 270 N.Y. 356 (1936) ; Matter of Andre-

sen v. Rice, 277 N.Y. 271 (1938). The Civil Service Com-

mission has broad discretion in determining what consti-

tutes a competitive examination. Matter of Katz v. Hober-

man, 28 N.Y. 2d 530 (1971); Matter of Mitchell v. Poston,

41 A.D. 2d 886 (4th Dept. 1973). And, various formulas

can be used to determine the scores which measure objec-

tive standards. Matter of Robbins v. Schechter, 7 Misc.

2d 436 (Sup. Ct. N.Y. Co. 1957), aff’d, 3 A.D. 2d 1010 (1st

Dept. 1957), aff’d, 4 N.Y. 2d 935 (1958); Section 67.1 of

the President’s Regulations, 4 NYCRR 67.1. Here, the

zones, devised by a statistical formula, are an objective

standard of measuring the results of the examination.

They are, therefore, competitive.

As for the contention that the settlement violates the

‘*rule of three’’, intervenors misstate the law. Intervenors

state that ‘‘pursuant to Title 4 NYCRR § 4.2(a), appoint-

ments are made from among the top three ranking candi-

dates on the eligible list’’ (Althiser Petition at 20-21). The

language of § 4.2(a), on its face, is to the contrary. Section

4.2(a) states that a promotion may be made to any person

on an eligible list whose final rating in the examination is

equal to or higher than the rating of the third highest per-

son on the list.* Therefore, if there are more than three

people, be there four or a hundred, with the same final score

and that score is equal to or higher than the final score of

the third highest person on the list, any one of those people

can be appointed.

The rule set forth in NYCRR § 4.2(a) is provided for

in Civil Service Law, § 61, which is the source of the ‘‘rule

of three’’. The purpose of the statute was to expand rather

than restrict the appointing officer’s choice and thus to

insure that appointing officers, in fact, had the power of

appointment. People ex rel. Balcom v. Mosher, 163 N.Y.

32 (1900). To that end, the statute further provides that

the Civil Service Commission may provide, by rule, that

where persons on an eligible list have the same final ex-

amination ratings, promotions may be made by the selection

of any of those individuals. Section 4.2(a) of the Rules is

the rule which has been adopted. The rule serves to en-

* The specific language of 4 NYCRR § 4.2(a) concerning appoint-

ments Is:

24

sure that mechanical ‘‘ranking’’ by a uniform impartial

system not have the restrictive impact that petitioners

claim is mandated. Here, the use of zones wherein all

candidates have the same rating for purposes of appoint-

ment is in full accord with the purposes of the rule of three.

Petitioners also claim that changing the list violates

their New York State due process rights. As the Court of

Appeals held, that claim is without merit. In addition, the

Commission regularly changes lists in its review of ex-

aminations. Matter of Adolph v. Dept. of Personnel, 71

Mise. 2d 68 (Sup. Ct. N.Y. Co. 1972), aff’d, 41 A.D. 2d 713

(1st Dept. 1973), aff’d, 33 N.Y. 2d 993 (1974); Matter of

Sullivan v. Taylor, 285 App. Div. 638 (1st Dept.), aff’d, 309

N.Y. 927 (1955). And, as noted below, it does so in the con-

text of settlements. The Commission has the clear and un-

mistakable power to take appropriate action to correct er-

rors. Katz v. Hoberman, supra; Mitchell v. Poston, 41 A.D.

2d 886 (4th Dept. 1973). Such corrective action may include,

for example, deletion of questions or acceptance of alter-

native correct answers, Adolph, supra; changing the pass-

ing grade, Mulkeen v. Bronstein, 75 Misc. 2d 110 (Sup. Ct.

N.Y. Co.), aff’d, 43 A.D. 2d 664 (1st Dept. 1973); giving

a supplemental test to some candidates, Mitchell, supra.

Indeed, petitioners acknowledge that the Civil Service

Commission has the authority to alter eligible lists; they

merely argue that the Commission cannot alter the list in

this particular case (Althiser Petition at 21). It is axio-

matic that under New York law the standard to be applied

as to whether or not a State agency can exercise its au-

thority is whether or not there is a ‘‘rational basis’’ for

the agency action. Colton v. Berman, 21 N.Y. 2d 322

25

(1967); Fink v. Cole, 1 N.Y. 2d 48 (1956); Diocese of

Rochester v. Planning Board of Town of Brighton, 1 N.Y.

2d 508 (1956); Stork Restaurant, Inc. v. Boland, 282 N.Y.

256, 274 (1940). Here, where the results of the examina-

tion had adverse racial impact and the use of zones ame-

liorates the standard error of measure with the concomitant

effect of ameliorating the adverse racial impact of the ex-

amination, the use of zones is, at the very least, rational.

The fact that zones have been established in the context

of settlement, after the list had been established, in no way

invalidates the stipulation. Eligibility lists can be changed

in the context of settlement. Matter of Mena v. D’Am-

brose, 58 A.D. 2d 514 (1st Dept. 1977); Mulkeen v. Bron-

stein, supra, 75 Misc. 2d 110, aff’d, 43 A.D. 2d 664.

The fact that the settlement provides for race conscious

hiring within the zones does not, as petitioners argue,

render the settlement illegal under New York law. Both

article 6, 45 of the New York State Constitution and the

Civil Service law including the ‘‘rule of three”’’ are silent

regarding the basis on which the appointing officer is to

select from the list of individuals certified as having satis-

fied the merit and fitness requirement. As for the equal

protection clause of the State Constitution, N.Y.S. Const.

Art. 1, § 11, that clause affords the same breadth of cover-

age as the equa! protection clause of the Fourteenth

Amendment to the United States Constitution. Dorsey v.

Stuyvesant Town Corp., 299 N.Y. 512 (1949), cert. den.,

339 U.S. 981 (1950). The applicable considerations are,

therefore, those set forth in Weber, 443 U.S. 193, which

considerations, intervenors concede, allow for race con-

26

scious hiring (Althiser Petition at 10). In addition, race

conscious hiring within zones is in accord with New York

State’s policy of affirmative action. See Executive Order

40.1, 9 NYCRR § 3.40.

Reliance on Ruddy v. Connelie, 61 A.D. 2d 372 (3d Dept.

1975), for the proposition that a minority preference may

not be granted is misplaced. The holding in Ruddy was

based on the court’s finding that there was no suggestion

that the examination was inherently disadvantageous to

minorities. Jd. at 375. Furthermore, the appointing officer

in Ruddy simply decided to appoint specific numbers of

minority and female eligibles without in any way relating

that decision to the actual configuration of the list.

Here, the record demonstrates that the examination had

a disparate racial impact. In addition, the minority prefer-

ence provided by the settlement is limited by the zone struc-

ture, as minorities are reachable only if there are fewer

than three available eligibles remaining in the next higher

zone. Thus, the use of zones regroups the examination

results on the basis of this Court’s analysis in Guardians,

rather than disregarding them, and follows Civil Service

principles, unlike the affirmative action plan in Ruddy.

Since the Stipulation of Settlement was based on a

prima facie case of discrimination and the terms of the

settlement were both reasonable and legal, the Court of

Appeals properly upheld the settlement. Certiorari, there-

fore, should be denied.

27

Conclusion

The Petition for a Writ of Certiorari Should Be

Denied.

Dated: New York, New York

December 22, 1983

“~——)

Respectfully submitted,

Ropert ABRAMS

Attorney General of the

State of New York

‘ pas + Dae on

Attorney for Respondents

Peter H. ScuHIFr

Acting Attorney-in-Chief

Appeals and Opinions

BARBARA B. BuTLER

Ann Horowitz

Assistant Attorneys General

Of Counsel

SAl

Affidavit of Ann Horowitz

UNITED STATES DISTRICT COURT

SovuTrHern District or New YorK

82 Civ. 295

en

Epwarp L. Kisxiayo, et al.,

Plaintiffs,

agawnst

Tue New York State Depar?MENT OF

CorrecTIonaL Services, et al.,

Defendants.

State of New York )

County of New York ) ss.:

Ann Horowrrz, being duly sworn, deposes and says:

1. I am an Assistant Attorney General in the office of

Ropert Asgams, Attorney General of the State of New

York, attorney for defendants herein. I am familiar with

the facts set forth herein and make this affidavit on per-

sonal knowledge in order to clarify the nature and extent

of discussions between members of this office and counsel

for plaintiffs.

2. Between January 19, 1982 and January 21, 1982, nu-

merous telephone conversations were had between Assist-

ant Attorney General Judith Gordon and/or myself and

SA2

D. Peter Sherwood, counsel for plaintiffs. I have spoken

with Ms. Gordon regarding those conversations between

Ms. Gordon and Mr. Sherwood to which I was not a party,

and am able on that basis to make statements concerning

the substance of those conversations. As a result of those

conversations, Ms. Gordon and I understood that a settle-

ment in principle had been reached as to administration

of a new Captain’s examination within a timeframe accept-

able to plaintiffs, consultation with an expert designated

by plaintiffs in the development of new examinations for

lieutenant and captain, and payment of a fee to plaintiffs’

expert. It was our belief that the only issue left for dis-

cussion was the possibility of ‘‘accelerated’’ promotions

from the eligible list of minorities to permanent lieutenant

positions. This issue was not raised until after tentative

agreement on the other issue had been reached. Mr. Sher-

wood was advised that it was unlikely that defendants

could agree to any sort of ‘‘accelerated’’ promotions.

3. On January 21, 1982 I advised Mr. Sherwood that

171 permanent appointments from the eligible list had been

made, and that 17 of those appointments had been made to

minorities. Later that day, Mr. Sherwood advised us that,

based on the agreement in principle reached at that point,

ne would adjourn plaintiff’s first motion for a preliminary

injunction sine die.

4. Discussions concerning the details of settlement con-

tinued after January 21, 1982. At no point in settlement

discussions, either before or after January 21st, did Mr.

Sherwood raise the issue of retaining provisionals in place

after permanent appointments had been made.

SA3

5. On February 16, 1982 Mr. Sherwood telephoned me

at approximately 4 p.m. and asked me whether it was true

that the provisional status of the provisional lieutenants

was being terminated effective February 17, 1982. I con-

firmed that provisional status of all lieutenants was being

terminated effective at the close of business on the 17th.

Mr. Sherwood then advised me that he would be seeking a

TRO from this Court on February 17, 1982 restraining de-

fendants from interfering with the provisional lieutenant

status of any of plaintiffs’ purported class.

6. I would also like to address and clarify several

points in Mr. Sherwood’s affidavit dated February 16, 1982.

I have been advised by the Department of Correctional

Services that some candidates for the lieutenant exam were

not sergeants and thus the reference in paragraph 3 should

be to candidates, not sergeants, who sat for the exam.

Similarly, not all provisional lieutenants were permanent

sergeants. (See Sherwood Affidavit, 78). They have

therefore been returned to their permanent hold items,

some of which are not sergeant items. Finally, it should

be noted that the sheet showing distribution of minorities

within score ranges was provided to Mr. Sherwood with the

caveat that it was subject to revision due to factors such

as subsequent disqualifications (insufficient time in title),

and errors in computation of veterans credits.

/s/ Aww Horowitz

Any Horowrrz

Sworn to before me this

24th day of February, 1982

/s/ Barnsarza B. Buttes

Assistant Attorney General

of the State of New York