Kirkland v. The New York State Department of Correctional Services Brief for Plaintiffs-Appellees
Public Court Documents
December 23, 1974
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74-2116
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
EDWARD L. KIRKLAND and NATHANIEL I{AYES, each individ
ually 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 POSTON, individually and in her
capacity as President of the New York State Civil
Service Commission and Civil Service Commissioner;
MICHAEL N. SCELS I and CHARLES F. S TOCKMEIS TER, each
individually and in his capacity as Civil Service
Commissioner,
Defendants-Appellants,
-and -
ALBERT M. RIBEIRO and HENRY L. COONS,
Intervenors-Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR PLAINTIFFS-APPELLEES
JACK GREENBERG
MORRIS J. BALLER
DEBORAH M. GREENBERG
10 Columbus Circle
Suite 2030
New York, New York 10.019
Attorneys for Plaintiffs-
Appellees.
I N D E X
Page
STATEMENT OF ISSUES PRESENTED FOR REVIEW ........... 1
STATEMENT OF THE CASE .............................. 2
STATEMENT OF FACTS ................................. 6
A. Absence of Blacks and Hispanics from
the Supervisory Ranks of the Depart
ment of Correctional Services ............. 6
B. The Impact of the Sergeant Examinations
On the Promotion of Blacks and Hispanics
to Supervisory Ranks ................. 8
C. Examination 34-944......................... 11
D. Previous Sergeant Examinations ............ 13
E. The Plaintiffs and Other Witnesses ........
ARGUMENT
I. THE DISTRICT COURT WAS CORRECT IN HOLDING
EXAMINATION 34-944 UNCONSTITUTIONAL IN
THAT IT EXCLUDED MINORITIES FROM APPOINT
MENT AND WAS NOT SHOWN TO BE JOB-RELATED
A. The Applicable L a w ...... ............. 15
B. The District Court's Ruling That
Examination 34-944 Had A Dispro
portionately Impact Upon Minorities
Is Not Clearly Erroneous ............. 16
C. The District Court's Finding That
Defendants Did Not Meet Their Burden
Of Demonstrating The Job-relatedness
Of Examination 34-944 Must Be Upheld
As Not Clearly Erroneous ............. 20
1. Examination 34-944 Was Not Prepared
In A Manner Consistent With Content
Validity ......................... 21
l
I N D E X f Cont1d ]
Page
a. No job analysis was
performed .................. 21
b. The type of examination,
its scope, the weight of the
subtests and the pass-points
were not determined in a
manner consistent with content
validity .................... 26
2. Defendants Have Not Shown
Examination 34-944 To Be Job-
Related ......................... 31
II. THE DISTRICT COURT'S DEFINITION OF THE
CLASS WAS NOT CLEARLY ERRONEOUS .....
III. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN ORDERING DEFENDANTS
TO PREPARE A CRITERION-VALIDATED
EXAMINATION AND IN MANDATING APPOINT
MENT RATIOS TO CURE EFFECTS OF PAST
DISCRIMINATION ......................
A. Applicable Legal Principles ....
B. The Court Below Did Not Abuse
Its Discretion In Requiring That
New Job Selection Procedures Be
Validated By Criterion-Related
Techniques .....................
C. The Provisions Of The Decree For
The Promotion Of Class Members
Were Both Proper And Necessary
As Part Of The Equitable Remedy .
IV. THE DISTRICT COURT DID NOT ERR IN
GRANTING PLAINTIFFS THEIR COSTS
INCLUDING ATTORNEYS' FEES AGAINST
DEFENDANTS ..........................
35
35
35
37
40
46
I N D E X [Cont'd]
A. The Eleventh Amendment Does
Not Bar the Award of Attorneys'
Fees Against the State Defendants... 46
B. The Award of Attorneys' Fees Was
a Proper Exercise of the Court's
Equitable Discretion .............. 50
V. THE INTERVENORS' ABSENCE FROM THIS CASE
UNTIL AFTER ISSUANCE OF THE DECISION BELOW
DOES NOT REQUIRE DISMISSAL ............... 56
A. The Intervention Proceedings
Below ............................. 56
B. Intervenors' Absence From
Pre-Decision Proceedings
Is No Reason to Dismiss
This Action ....................... 58
CONCLUSION ................................... 6 3
Page
iii
CASES CITED
Benqer Laboratories Ltd, v. R. K. Laros Co.
24 F.R.D. 450 (E.D. Pa. 1959), aff'd 317 F.2d 455
(3rd Cir. 1963), cert, denied 375 U.S. 833 (1963) . 61
Boston Chapter, NAACP, Inc, v. Beecher
No. 74-1067 (1st Cir. Sept. 15, 1974)............ 18
Bradley v. School Board of the City of Richmond
40 L. Ed. 2d 476 (1974)............................ 52
Brandenburqer v. Thompson
494 F.2d 885 (9th Cir. 1974)...................... 55,54,55
Bridgeport Guardians, Inc, v. Bridgeport Civil Service 15,16,18,
Commission, 482 F.2d 1333 (1973) aff'd in part and 20,33,36, 37,
rev'g in part 354 F, Supp. 778 (D. Conn. 1973) . . 38,39,42,43,45
Bridgeport Guardians, Inc, v. Members of the Bridgeport
Civil Service Commission, 497 F.2d 1113 (2nd Cir. 1973)
cert, filed 43 L.W. 3282 .......................... 51, 53
Carter v. Gallagher 43, 44
452 F.2d 315 (8 th Cir. 1971 and rehearing en banc,)1972.
Castro v. Beecher,
459 F.2d 725 (1st Cir. 1972).................... 18
Chance v. Board of Examiners 15, 16,
458 F.2d 1167 (1972), aff'g. 330 F. Supp. 203 20, 21
(S.D.N.Y. 1971) ..................................
City of Detroit v. Grinnell Corp.
495 F.2d 448 (2nd Cir. 1974).................... 46
Clark v. American Marine Corp.
437 F.2d 959 (5th Cir. 1971), aff'g 320 F. Supp.
709 (E.D. La. 1970).............................. 55
Class v. Norton,
___ F.2d ___ (2nd Cir. No. 74-1702, October 10, 1974)47, 48
Page
Commonwealth of Pennsylvania v. O'Neill, en banc.
348 F. Supp. 1084 (E.D. Pa. 1972) aff'd in pertinent
part, 473 F.2d 1029 (1973)........................ 43
iv
Cooper v. Allen
467 F.2d 836 (5th Cir. 1972)...................... 53
Donahue v. Staunton
471 F.2d 475 (7th Cir. 1972), cert, denied 410
U.S. 955 (1973).................................. 53
Edelman v. Jordan,
39 L.Ed. 662 (1974).............................. 47, 48
Ex Parte Young
209 U.S. 123 (1908)............................... 49
Fairley v. Patterson 49, 53
493 F.2d 598 (5th Cir. 1974)..................... 55
Fairmont Creamery Co. v. Minnesota
275 U.S. 70 (1927)......... .................... 49
Fleischmann v. Maier Brewing Co.
386 U.S. 714 (1967)............................... 51
Fowler v. Schwartzwalder
498 F.2d 145 (8th Cir. 1974)..................... 51, 53
Gates v. Collier
489 F.2d 298 (5th Cir. 1973), reh. en banc granted 47
Gresham v. Chambers
501 F.2d 687 (2nd Cir. 1974).................... 51
Hall v. Cole
412 U.S. 1 (1973)................................ 51
Hoitt v. Vitek
495 F.2d 219 (1st Cir. 1974).................... 49, 53
Incarcerated Men of Allen County v. Fair
___ F.2d ____ (6 th Cir. No. 74-1052, November 13, 50, 53
1974)............................................ 55
International Salt Co. v. United States
332 U.S. 392 (1947)................................ 36
Ionian Shipping Co. v. British Law Ins. Co.
426 F.2d 186 (2nd Cir. 1970).................... 57
Jordan v. Fusari 48, 53
496 F.2d 646 (2nd Cir. 1974) 55
Page
v
Page
Jordan v. Gilligan
500 F .2d 701 (6th Cir. 1974), cert, filed
43 L.W. 3240 ................................ 49
Kirkland v. New York State Department of
Correctional Services, 374 F.Supp. 1361
(S.D.N.Y. 1974)................................ passim
Knight v. Auciello. 453 F.2d 852 (1st Cir. 1972) 53
T.aRaza Unida v. Volpe, 57 F.R.D. 94 (N.D. Cal. 1972)
aff’d 488 F. 2d (9th Cir. 1973).................. 54
Lee v. Southern Home Sites Corp., 444 F.2d
143 (5th Cir. 1971)............................ 51, 53
Louisiana v. United States, 380 U.S. 145 (1965). . . 36, 37
Milburn v. Hueeker, 500 F.2d 1279 (6th Cir. 1974). . 49, 53
Miller v. Amusement Enterprises, Inc., 426 F.2d
534 (5th Cir. 1970)............................ 55
Mills v. Electric Auto-Lite Co., 396 U.S. 375
(1970)........................................ 51, 52
NAACP v. New York, 413 U.S. 345 (1973)............ 57
Named Individual Members of San Antonio Conservation
Society v. Texas Highway Dept., 496 F.2d 1017
(5th Cir. 1974), reh. en banc g r a n t e d .......... 49
National Licorice Co. v. N.LR.B., 309 U.S.
350 (1940)...................................... 62
Natural Resources Defense Council v. Environmental
Protection Agency, 484 F.2d 1331 (1st Cir. 1973). 53, 55
Natural Resources Defense Council v . Tennessee
Valley Authority, 340 F.Supp. 400 (S.D.N.Y. 1971),
rev'd on other grounds 459 F.2d (2nd Cir. 1971).. 61
vi
Page
Newman v. Piqgie Park Enterprises, Inc.
390 U.S . 400 (1968)........................ 52
Parker Rust-Proof Co. v. Western Union
Tel. Co., 105 F .2d 976 (2nd Cir. 1939) cert.
denied 308 U.S. 597 (1939).................. 61
Patterson v. Newspaper and Mail Deliverers'
Union, 8 EPD f9736 (S.D.N.Y. 1974).......... 61
Provident Bank & Trust Co. v. Patterson,
390 U.S. 102 (1968)........................ 59, 60
Rios v . Enterprise Association Steamfitters,
Local 638. 8 EPD K9558 (S.D.N.Y. 1974). . . . 36,37,38, 42,61
Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir. 1971), cert. dismissed 404 U.S.
100 (1971).................................. 62
Russell v. Hodges. 470 F.2d 212 (2nd Cir. 1972) 62
Schutten v. Shell Oil Co., 421 F.2d 869
(5th Cir. 1969)............................ 60
Shields v. Barrow. 17 How. 130 (1855).......... 59
S ims v. Amos, 340 F.Supp. 691 (M.D. Ala. 1972)
aff'd 409 U.S. 942 (1972).................. 49, 54
Shekan v. Board of Trustees of Bloomsburg State
College, 501 F.2d 31 (3rd Cir. 1974), cert.
filed 43 L.W. 3296.......................... 49
Sprague v. Ticonic National Bank, 307 U.S.
161 (1939)................................. 51
Stolberg v. Members of the Board of Trustees
for the State Colleges of Connecticut, 474
F .2d 485 (2nd Cir. 1973).................. 47, 48, 53
vii
Page
Taylor v. Perini, 503 F.2d 889 (6th Cir. 1974)
cert, filed 43 L .W. 3281 .................... 49, 53
United States v. Bethlehem Steel Corp.,
446 F . 2 d 652 (2nd Cir. 1971)................ 62
United States v. Wood, Wire & Metal Lathers,
Local 46. 471 F.2d 408 (2nd Cir.)
cert, denied, 412 U.S. 939 (1973)............ 36,37,42
Vulcan Society of the New York Fire Department
Inc. v. Civil Service Commission of the City
of New York, 490 F.2d 387 (1973) aff'g in part 15,16,17,18,
and rev'd in part 353 F.Supp. 1092 (S.D.N.Y. 1973) 20,21,36,38,39
Wilderness Society v. Morton, 495 F.2d 1026
(D.C. Cir. en banc 1974), cert, granted
43 L.W. 3208 ................................ 54
t
viii
PaqeStatutes
Fair Housing Act of 1968
42 U.S.C. § 3612 ..................... 49
42 U.S.C. § 4321 ..................... 54
Title VII of Civil Rights Act of 1964
42 U.S.C. § 2000e-5 (k) ...................... 4 9 , 50
Title VII of Civil Rights Act of 1964
42 U.S.C. § 2OOOe-5 (f) .......... ............
Title II of Civil Rights Act of 1964 ............... 4 9 , 52
49 U.S.C. § 1653 ................................. 54
42 U.S.C. § 1857 ................................. 53
42 U.S.C. § 1973 ................................. 53
42 U.S.C. § 1981 ................................. 52, 53, 54
42 U.S.C. § 1982 ................................. 53, 54
42 U.S.C. § 1983 ................................. 52 , 53, 54
Emergency School Aid Act of 1972
20 U.S.C. § 1 6 1 7 .............................. 49
McKinney's New York Civil Service Law (1973)
§ 52(2) .................................. 2 7
§ 65 .................................. 62
Rules
Rule 19(a), Federal Rules of Civil Procedure . . . . 59
Rule 19(b), Federal Rules of Civil Procedure . . . . 58, 59
EEOC Guidelines on Employment Selection
Procedures, 29 C.F.R. § 1607 .................... 5
Advisory Committee Notes, 39 F.R.D. 69 (1966). . . . 57,59, 61
Other Authorities
Attica, The Official Report of the New York State
Special Commission on Attica (Bantam) (1972) . . . 3 9 , 4 5
STATUTES, RULES AND REGULATIONS CITED
IX
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
NO. 74-2116
EDWARD L. KIRKLAND, et al.,
Plaintiffs-Appellees,
-against-
THE NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES, et al..
Defendants-Appellants,
-and-
ALBERT M. RIBEIRO and HENRY L. COONS,
Intervenors-Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE' SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR PLAINTIFFS-APPELLEES
This case challenging state civil service examinations
as being racially discriminatory is here on appeal from a decree
of the District Court for the Southern District of New York
(Lasker, J.) entered July 31, 1974, in accordance with an opinion
dated April 1, 1974.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether the District Court's finding that
examination No. 34-944 for the position of Correction
Sergeant (Male) had a discriminatory impact upon Blacks
and Hispanics must be upheld as not clearly erroneous?
2. Whether the finding below that defendants
did not demonstrate the job-relatedness of said examina
tion was not clearly erroneous?
3. Whether the definition of a class composed
of all Black and Hispanic Correction Officers or provisional
Correction Sergeants who failed examination 34-944 or ranked
too low to be appointed was not clearly erroneous?
4. Whether the District Court's grant of injunctive
relief was not an abuse of discretion in light of the dis
criminatory impact and non-job-relatedness of examination
No. 34-944 and previous examinations?
5. Whether the District Court's award of counsel
fees to plaintiffs must be upheld as not beyond its power
and not an abuse of discretion?
6 . Whether this Court should dismiss this fully
litigated action and deny relief from unconstitutional
practices because certain allegedly necessary parties were
not joined?
1
STATEMENT OF THE CASE
This action for declaratory and injunctive relief
was filed April 10, 1973 by Edward L. Kirkland and Nathaniel
Hayes, Black Correction Officers provisionally appointed to
1/
the rank of Correction Sergeant, against the New York State
Department of Correctional Services, its Commissioner, the
New York State Civil Service Commission and its three
Commissioners. The complaint challenged the legality, under
42 U.S.C. §§1981 and 1983 and the Fifth and Fourteenth Amend
ments to the Constitution of the United States, of Civil
Service examination 34-944 for promotion to the position of
Correction Sergeant (Male) on the ground that it had a dis
proportionately adverse impact upon Black and Hispanic
2/
candidates and could not be shown to be job-related (A. 7-24).
That day the District Court entered a Temporary Restraining
Order restraining defendants-appellants (hereafter, "defendants")
from "making any permanent appointments to the position of
Correction Sergeant (Male); and from terminating or otherwise
interfering with the provisional appointments of the named
1/ A third plaintiff, the Brotherhood of New York State Correction
Officers, Inc., withdrew at the commencement of the trial.
2 / This form of citation is to pages of the Appendix.
2
plaintiffs and those members of the class who are provisional
Correction Sergeants (Male)" (A. 33-37). By modification and
stipulation said Temporary Restraining Order was extended
until the entry of a decision on the merits (A. 6 6-6 8 , A.69-74).
Plaintiffs-appellees (hereafter "plaintiffs") filed
an amended complaint June 22, 1973 alleging that Sergeant
examinations administered prior to 1972 had a discriminatory
impact on Blacks and Hispanics and could not be shown to be
job-related (A. 28-31). Defendants answered the complaint
and amendment thereto on July 19, 1973, denying plaintiffs
allegations (A. 86-97).
After extensive discovery, the action came on for a
six-day trial before the Honorable Morris E. Lasker.
In its April 1, 1974 opinion (A. 148-200), the District
Court found that plaintiffs' showing of the differential impact
of examination 34-944 was "amply established" (A. 164), that the
construction of the examination was characterized by a "lack of
professionalism" (A. 180), that "the slavish imitation of earlier
examinations . . . indicates an alarming lack of independent
thought, about how to assure that 34-944 was job-related" (A.181-
182), and that "positive evidence of job-relatedness is con
spicuous by its absence" (A. 184). As to past examinations,
the court found that while there was evidence of discriminatory
3
impact, there was no evidence as to job-relatedness (A. 181). .
The Court found that plaintiffs had demonstrated the existence
of a class composed of all Black and Hispanic Correction
Officers or provisional Correction Sergeants who failed 34-944
or who passed but ranked too low to be appointed (A. 187). The
Court declared examination 34-944 unconstitutional and enjoined
defendants from making appointments based on its results (A.188-
89), but deferred decision on the extent of affirmative relief
to give defendants an opportunity to address themselves to
plaintiffs' recommendations (A. 189-90). The Court awarded
plaintiffs reasonable costs, including attorneys' fees, in an
amount to be determined after further documentation (A. 196).
Subsequent to rendering of the court's opinion, on
April 22, 1974, Albert M. Ribeiro and Henry L. Coons, provision
al Sergeants who would have been appointed permanent Sergeants
on the basis of their performance on examination 34-944 effect-
37
ive April 12, 1973 but for the Temporary Restraining Order,
moved to intervene as parties defendant (A. 201). They were
granted intervention on condition that they not seek to relitigate any
3/ The Temporary Restraining Order was modified April 11,
1973 to permit defendants to give provisional appointments
as Sergeants to a group of Correction Officers who were
scheduled to receive permanent appointments on April 12, 1973
(A. 6 6-6 8 ). Intervenors were appointed pursuant to said order.
4
matter which they might have theretofore litigated had they
been parties from outset (A. 230-31). Intervenors1 motions
to maintain a class action and to add as parties defendant
all persons who passed examination number 34-944 were
denied (A. 231-34).
On July 31, 1974 the District Court entered a de
cree (1 ) enjoining defendants from in any way acting upon
the results of Examination No. 34-944; (2) mandatorily en
joining defendants to develop a new selection procedure val
idated in accordance with the EEOC Guidelines on Employment
Selection Procedures, 29 C.F.R. §1607; (3) requiring that
such validation be by means of empirical, criterion-related
validation techniques insofar as possible; (4) providing for
interim appointments to the position of Correction Sergeant
(Male) upon application to the Court; (5) mandatorily enjoin
ing defendants to make all appointments on the basis of one
Black or Hispanic for each three whites so appointed until
the combined percentage of Black and Hispanic persons in
the rank of Correction Sergeant (Male) is equal to the
combined percentage of Blacks and Hispanics in the rank of
Correction Officer (Male). The Court retained jurisdiction
to supervise the decree and to determine the reasonable
value of plaintiffs' attorneys' services (A. 241-45).
5
STATEMENT OF FACTS
A. Absence of Blacks and Hispanics from
the Supervisory Ranks of the Depart-
ment of Correctional Services________
In the Correction Officer series of the New
York State Department of Correctional Services, the entry
level position is Correction Officer. Promotions are
made to successive supervisory positions of Sergeant,
Lieutenant, Captain, Assistant Deputy Superintendent,
Deputy Superintendent and Superintendent on the basis of
a series of written examinations (A. 1327-29).
Candidates for promotion from Correction Officer
to Correction Sergeant must take a written exam prepared
and administered by the New York State Department of Civil
Service. The passing score is established by the Depart
ment of Civil Service, after the examination has been
scored, at a level which will insure that an adequate num
ber of people will be available to fill vacancies (A. 578).
By state law, however, the passing score may not be set
higher than 70% (A. 760).
Those who pass are placed on a ranked eligible
list on the basis of their scores after adding seniority and
veteran's preference credits (vhere applicable). After eligibles have
6
been canvassed to ascertain acceptors for geographic areas
where correctional facilities are located, candidates are
selected from eligible lists in rank order, subject to the
One in Three rule (A.1268- 69). in the event that an eligible
list is exhausted before publication of a new list, provisional
appointment of Sergeants are made on the basis of 1 ) ability as
a Correction Officer, 2)evaluations from the superintendent and
supervisors and 3) leadership ability and empathy with the in
mate population (A. 1269-1278).
Blacks and Hispanics have been almost totally excluded
from the supervisory ranks of the Department of Correctional
Services. As of May 1, 1973 there were no Blacks or Hispanics
holding permanent appointments as Correction Sergeants (Male)
(A. 1448). Of the 237 men in the combined classifications of
Sergeant, Lieutenant and Captain, only two, Captain David
Harris, and Lieutenant Clayton Hill, were Black; none was
Hispanic (A. 286, 393-95, 1447). As of January 1, 1973
there were 85 provisionally appointed Sergeants and 122
permanent Sergeants in the Department's Correctional facilities
4/
Ten provisional Sergeants were Black; none was Hispanic (A. 1447).
4/ All ten would have been returned to the rank of Officer on
April 12, 1973 but for the Temporary Restraining Order (A. 1277-
79) .
7
While the numbers of Assistant Deputy Superinten
dents, Deputy Superintendents and Superintendents is not
in the record, persons serving in state correctional
facilities for up to twelve years could recall no Black
supervisors other than Hill and Harris (A. 268, 395, 473-
74, 533). Defendants presented no evidence to the contrary
B. The Impact of the Sergeant Examinations
On the Promotion of Blacks and Hispanics
to Supervisory Ranks _______________ _
October 14, 1972, the Department of Civil Service
administered promotional examination 34-944 for the
position of Correction Sergeant (Male). 1,432 men took the
5/
examination and 406 passed (PX-5). Of 1,263 whites who
took examination 34-944, 389 or 30.8%, received passing
6 /
scores; of 104 Blacks, 8 or 7.7%, passed; of 16 Hispanics
5/ As the trial court noted (A. 197 n.3), while the
eligible list promulgated on the basis of the results
of examination 34-944 (PX-5) which is not reproduced
in the Appendix) indicates that 1432 took the examination,
the computer display (A. 1343-48) shows a total of only
1,383 Black, Hispanic and white candidates. Presumably,
the discrepancy is attributable to "others", e.g., Asian-
Americans or Native Americans, or persons whose race/
ethnicity was unknown.
6_/ The raw passing score was 5 3 (70% of 75, the number of
items on the exam).
8
2 , or 12.5%, passed (A. 154, 736, 1343-48). Defendants
admitted the statistical significance of these differences
(A. 736-37) .
The passing score serves more to regulate the numbers
on the eligible list than to determine who is qualified to
be a Correction Sergeant (A. 578). In assessing the dis-
»
criminatory effect of the exam, far more meaningful than
pass-fail statistics is evidence of the relative numbers
of whites, Blacks and Hispanics who took the exam and the
number who scored high enough to be likely to be appointed.
In April 1973 the Department of Correctional Services made
8/
87 provisional appointments from the eligible list established
on the basis of examination 34-944. One of the appointees
was Black (A. 1279-80). On May 29, 1973 the Department in
dicated that it planned to appoint an additional 40-60
sergeants over the next two years. Thus, through May 1975
7/
7/ PX-33 (A. 1449), which shows 383 whites having received
passing scores, is in error. PX-12, pp. 1 and 2 (A. 1343-44)
were changed to reflect the fact that one candidate previous
ly recorded as white was Black, but pp. 5 and 6 (A. 1347-48)
showing test performance of whites was not changed. Therefore,
it shows that 1,264 whites took the exam, but should show 1,263
and shows that 390 passed but should show 389.
8/ See n.3 supra.
9
a maximum of 147 Sergeants would have been appointed.
Another Sergeant's exam was planned for 1974 (A. 1460)
and the eligible list from examination 34-944 would have
expired several months thereafter, in 1974 or early 1975
(A. 197-98 n.5) .
The display of the results of examination 34-944
shows that 157 whites, 2 Blacks and no Hispanics attained
scores of 57 or above (A. 1343-48). Nothing in the record
indicates that this pool of 159 eligibles would not be suffi
cient to provide the 127-147 sergeants to be appointed from
this list. Thus, while 157, or 12.4% of the whites who took
the test were likely to be appointed, only 2, or 1.9% of the
Blacks, and none of the Hispanics who took the test were
likely to be appointed. As the court below noted, these
results would lead to the appointment of whites at 6.5 times
the rate for Blacks, and completely bar the appointment of
Hispanics (A. 155).
The discriminatory impact of the 1970 Sergeants
examination, No. 34007, was even greater; indeed it was absolute.
Of the 997 whites tho took examination 34007 and were still em
ployed on January 1, 1973, at least 94 or 9.4% passed; of the
46 Blacks and Hispanics who took the examination and were still
10
employed on January 1, 1973, none received a passing score
9/
(A. 1436-43).
Although there are no data in the record with respect
to pre-1970 Sergeant examinations, the racial composition of
present supervisory personnel, taken with undisputed testimony
that the only minority supervisors in the last twelve years
were two Blacks who are still the only minority supervisors,
icreates a powerful inference that very few Blacks, and probably
no Hispanics, ever passed the examinations, or more importantly,
scored high enough to be appointed.
C . Examination 34-944
Examination 34-944 was a written examination consisting
of five subtests of 15 items each. Each subtest was designed
to test for knowledge, skills and abilities (K, S, & A's) in
one of the following areas: Laws, rules and regulations;
modern correctional methods, using good judgment, preparing
written material; and supervision (A. 1332-1336, 1353).
While there are certain areas of ambiguity, the record
indicates generally the manner in which examination 34-944
was constructed. In May, 1972, the Department of Correctional
9/ The passing score on the 1970 Sergeant examination is not in
the record. The above data is based upon the assumption that
the passing score was the maximum allowed by state law, 70% of
90 (the number of items on the exam, see PX-43, page 2) or 63.
Even if the passing score were lower,the fact remains that the
list was exhausted without any Blacks or Hispanics having been
appointed therefrom.
11
Services notified the Department of Civil Service that a
substantial number of provisional Correction Sergeants were
about to be appointed and that it would be necessary to pre
pare a new Sergeant examination (A. 1349). On June 1, a
"scope conference" was held, attended by personnel from the
two departments. It was determined that the scope of examina
tion 34-944 would be the same as for the 1970 examination,
except that a subtest on preparation of written reports
would be substituted for one on interpretation of written
materials (Id.). On July 26, 1972, three officers from
Correctional Services, (then) Lieutenants Ciuros, Sperback,
and Harris, met with personnel from Civil Service and were
asked to prepare items on rules and regulations, modern
correctional methods, and judgment (A. 1339). The three
Corrections cohsultants were directed to draft questions
from their own work experience (A. 787). The ̂ items on these
three subtests were also worked on by three examiners in Civil
Service, Kenneth Siegal, Mrs. Walters and Mr. Bouldin (A. 602).
The items on supervision and report preparation were assigned
for preparation to a group in Civil Service which prepares
such tests for a variety of occupations (Id_.) During the period
that the items were being prepared, KS&A statements (A. 1332-
36), which were supposed to serve as subtest descriptions and
12
guidelines for the preparation of test items (A. 901), were
also being prepared (A. 902). The KS&A’s for the subtests
on rules and regulations, modern correctional methods and
judgment were drafted by Mr. Siegal, Mrs. Walters and Mr. Bouldin
those for subtests on supervision and report preparation by the
special examiners who prepared those subtests (A. 602).
D . Previous Sergeant Examinations
Sergeant examinations have for many years been prepared
by the same process by which examination 34-944 was developed.
(A. 624).
The fact that (a) the scope of every examination since
1964 was virtually identical (A. 1469), (b) the class specifi
cations for Correction Sergeant were unchanged since 1962 (A.
1474-84), and (c) prior examinations were consulted in prepar
ing examination 34-944 (A. 889) lead the trial court to conclude
that pre-1972 Sergeant examinations were similar to examination
3 4 - 9 4 4 (A. 181-82).
E. The Plaintiffs and Other Witnesses
Plaintiffs Kirkland and Hayes served as Correction
Officers at Ossining from 1962 and 1961,respectively, until
August 1972, when they were provisionally appointed to Correct
ion Sergeant (A. 371, 374, 446, 449). Each has taken and failed
13
the Sergeant examination four times. According to the
Assistant Deputy Superintendent at Ossining, their perform
ance as provisional Sergeants was satisfactory and there
was no reason they were not qualified to be sergeants other
than that they failed the examination (A. 320-21). The
Superintendent wrote letters to plaintiffs commending them
for "cooperation, diligence and dedicated performance" as
provisional Sergeants, stating that he would recommend them
for permanent appointment at Ossining or any other institu
tion (A. 1454-55).
Four other black provisional Sergeants and one
Black Correction Officer testified that they had taken the
Sergeant examination as many as four times and had either
failed or had passed with grades too low to be appointed
(A. 282, 349-50, 436-37, 518, 543). There was no evidence
that they had performed their duties other than satisfactorily.
14
ARGUMENT
I. THE DISTRICT COURT WAS CORRECT IN
HOLDING EXAMINATION 34-944 UNCON
STITUTIONAL IN THAT IT EXCLUDED
MINORITIES FROM APPOINTMENT AND
WAS NOT SHOWN TO BE JOB-RELATED
A . The Applicable Law
There is a well-defined body of law which clearly
articulates the governing standards applicable to the issues
presented in this case.
The leading cases in this Circuit are Chance v. Board
of Examiners, 458 F.2d 1167 (1972), aff'g. 330 F.Supp. 203
(S.D.N.Y. 1971) ("Chance."); Bridgeport Guardians, Inc. v. Bridge
port Civil Service Commission, 482 F.2d 1333 (1973), aff'g in
part and rev'g in part 354 F.Supp. 778 (D. Conn. 1973) ("Bridge
port" ); and Vulcan Society of the New York Fire Department,Inc.
v. Civil Service Commission of the City of New York. 490 F.2d
387 (1973), aff'g in part and rev'g in part 353 F.Supp. 1092
(S.D.N.Y. 1973)("Vulcan"). The rule established by these
authorities is that in a case such as the instant one, if plain
tiffs show that an examination has had a disproportionately
adverse impact upon a racial or ethnic group, defendants must
meet a heavy burden of justifying the use of the test by estab
lishing that performance on the test bears a demonstrable re
lationship to the ability to perform the job for which it is used.
15
The District Court,in holding examination 34-944 unlawful,
expressly followed these decisions (A. 150-51) and correctly
applied the standards laid down therein.
B. The District Court's Ruling That Examination
3 4 - 9 4 4 Had A Disproportionately Adverse Impact
Upon Minorities Is Not Clearly Erroneous______
Plaintiffs proved, and the trial court found, that whites
passed examination 34-944 at a rate four times that of Blacks
and 2.5 times that of Hispanics. Defendants conceded the
statistical significance of these disparities (A. 154). More
significantly, plaintiffs demonstrated, and the court found,
that whites scored high enough to be appointed at 6^ times the
rate for Blacks and that no Hispanics scored high enough to be
appointed (A. 155). Thus, the disproportionately adverse impact
which examination 34-944 had on Blacks and Hispanics was sub
stantially greater than that held sufficient to establish a
prima facie case of discrimination in Chance, Vulcan and Bridge -
port (A . 155) .
Defendants, however, contend that although examination
3 4 - 9 4 4 was given state-wide to provide a state-wide pool of
Correction Sergeants, the District Court's reliance on state
wide pass-fail data was clearly erroneous. Instead, they argue,
the Court should have compared white and minority passing rates
facility-by-facility. Defendants reason that mean scores of both
16
whites and minorities were lower at Ossining and Greenhaven
(where the minority candidates are concentrated) than at other
facilities, indicating that the overall disparity is the result
of "facility effect," not ethnicity, and that the "variable" of
"facility effect" can only be "screened out" by comparing white-
10./
minority performance at each facility (Br. 36-46). Such a
comparison, defendants maintain, would show a "statistically
significant" difference in passing rates only between whites
and Blacks at Ossining. Judge Lasker rejected this analysis
as being premised on factually erroneous assumptions, incorrect
as a matter of law, and irrelevant (A. 155-62). He found the
analysis to be factually flawed in that (a) whites received
statistically significantly higher mean scores than Blacks and
Hispanics facility-by-facility as well as state-wide (A. 158-
59, 1934), and(b) there were "significant" disparities in the
passing rates of whites compared to Blacks and Hispanics
facility-by-facility as well as state-wide (A. 159-61, 1449).
Defendants take issue with Judge Lasker's application of the
term "significant" to passing rate disparities which, while
substantial, are not, they contend, "statistically significant"
(Br. 43). However, defendants' insistence on statistical signi
ficance is ill-founded. As Judge Friendly observed in Vulcan
10/ This form of citation is to pages of appellants' brief.
17
in holding that Judge Weinfeld's finding of the racially dis
proportionate impact of the fireman's examination was not
clearly erroneous,
It may well be that the cited figures and other more
peripheral data relied on by the district judge did
not prove a racially disproportionate impact with
complete mathematical certainty. But there is no
requirement that they should ... We must not forget
the limited office of the finding that Black and His
panic candidates did significantly worse in the
examination than others. That does not at all decide
the case; it simply places on the defendants a burden
of justification which they should not be unwilling
to assume.
490 F.2d at 393. Accord: Boston Chapter, N.A.A.C,P.,Inc. v.
Beecher, No. 74-1067 (1st Cir. Sept. 15, 1974)
[I]t can be argued that a showing of significant
disproportionality in minority employment, coupled
with even minimal proof of a higher minority failure
rate, is enough to shift to the Division of Civil
Service the burden of justification.
Slip. Op. at 5-6.
In any event, there is no dispute that the disparity in
overall pass-fail rates is statistically significant and, as
Judge Lasker held, the resulting racial/ethnic classification,
which establishes plaintiffs' prima facie case, cannot be re
butted by defendants' attempt to explain this classification
by "facility effect" (A. 161-62). The classification requires
that defendants justify the test. Bridgeport. supra, 354 F.
Supp. at 785-86; Vulcan, supra, 360 F.Supp.at 1272; Castro v.
Beecher, 459 F.2d 725, 730-31 (1st Cir. 1972).
18
Defendants also claim that the court below erred in
finding that plaintiffs had established a prima facie case
as to the examination as a vhole, and should have compared
white-minority performance subtest-by-subtest. Had it done
so, the argument goes, it would have found that as to one of
the five subtests there was no significant difference in per
formance (Br. 47). The point of this argument is puzzling
since (a) defendants reject the notion that they should re
grade the examination and make appointments on the basis of
this one subtest (Br. 30, footnote),and (b) defendants concede
that failure to prove job-relatedness on any one of the other
four subtests would invalidate the entire test (Br. 48, footnote).
Carried ^o its logical end, defendants approach would require
question-by-question comparison of white-minority performance.
Defendants, however, admit that it is "self evident" that in
terms of the impact of the disparity of scores on Blacks and
Hispanics, the only score that means anything is the score on
the test as a whole (A. 946).
As Judge Lasker correctly held, defendants' approach
is unwarranted in law and in logic (A. 162-24).
19
C. The District Court's Finding That Defendants
Did Not Meet Their Burden Of Demonstrating
The Job-relatedness Of Examination 34-944
Must Be Upheld As Not Clearly Erroneous____
The Court below devoted 23 pages of its opinion (A. 164-
87) to a detailed, carefully documented discussion of the job-
relatedness of examination 34-944. Its findings of basic fact
are amply supported by the record, and its finding of ultimate
fact, to wit, that "the probabilities in this case [of the job-
relatedness of the examination] run heavily against defendants"
and, therefore, defendants failed to meet their burden (A. 186-
87), was arrived at by the application of legal standards
approved by this Court in Chance, Vulcan, and Bridgeport.
Defendants contend that examination 34-944 met
established standards for content validity (Br. 53). The
Court below correctly summarized the relevant legal and pro
fessional standards for content validity as follows:
[T]o survive plaintiffs' challenge, 34-944 must be
shown to examine all or substantially all the critical
attributes of the sergeant position in proportion to
their relative importance to the job and at the level
of difficulty which the job demands (A. 169).
See Vulcan, supra, 360 F.Supp. at 1274 and 490 F.2d at 395;
Bridgeport, supra, 482 F.2d at 1338.
Following the approach taken by Judge Weinfeld in Vulcan,
which approach was described with approval by Judge Friendly,
490 F.2d at 395, Judge Lasker, rather than "burying himself in
20
a question-by-question analysis" of examination 34-944 to
determine if the test had content validity (id_.), placed
primary emphasis on the process by which it was created.
Concluding that "the procedures employed in constructing
examination 34-944 do not conform to professionally acceptable
and legally required standards" (A. 184), he proceeded to
inquire whether, despite the inadequacy of the procedures by
which the examination was constructed, it was in fact related
to the job of Correction Sergeant. He found that "positive
evidence of job-relatedness is conspicuous by its absence"
(A. 184) .
1. Examination 34-944 Was Not Prepared In A Manner Consistent
With Content Validity
a. No job analysis was performed.
Plaintiffs' expert testified, and the District Court
agreed, that fundamental to the construction of any examination
purporting to have content validity is a job analysis of the
position's duties which will enable examiners to formulate
questions capable of measuring the necessary characteristics
(A. 171-72, 1116, 1122). Thus, no claim of content validity
can be supported without a job analysis or detailed job des
cription giving the examination preparer adequate information
from which to select questions representing a reasonable sample
of the work required for the job. Chance, supra, 458 F.2d at
1174, Vulcan, supra, 360 F.Supp. at 1274.
21
Defendants' witnesses testified that job analysis was a
process that need not be reduced to writing but can exist in the
minds of the test constructors, that there was no job analysis
for the position of Correction Sergeant in documentary form (A.
599-600, 919-20), but that the "job audit" (A. 1516-95) KS&A
statements (A. 1332-36), class specifications (A. 1327-29) and
rule book (DX-O) constitute a job description of the job of
Correction Sergeant (A. 599). The court below rejected these
contentions. It found that these documents "do not even approxi
mate a professionally adequate job analysis", that what existed
in the minds of the test constructors was "unproven" or unimpress
ive" , that the reliance of the test constructors upon the purported
ijob analysis was "largely established" and that the "inevitable
inference, is that no adequate job analysis was performed" (A.173).
The job audits (A. 1516-95) purport to be descriptions
of what Correction Officers were observed to be doing in several
facilities (A. 174, 589). There is not a shred of evidence
about the persons who conducted the audits -- their quali
fications as either corrections experts or test construction
experts -- or about any guidelines or procedures they followed
11/
in making the audits (A. 175). The record does show that
the audits were conducted not with test construction in
mind, but rather for the purpose of determining whether various
11/ Defendants’ expert testified that the job analysis process
must be designed by a psychometric expert (A. 1046, 1048).
22
jobs in the Correction Officer series ought to be upgraded for
12/
Civil Service purposes (A. 174, 590, 1330-31).
Neither the people who took the auditors around the
facilities nor the auditors themselves wrote the examination
(A. 175, 595) .
The audits are devoted primarily to a description of
the duties of Correction Officers, not Sergeants (A. 175).
They give no indication of the relative importance of various
tasks performed by or skills required of a Sergeant, and no
hint of the degree of competency required in regard to each
skill, both essential components of job analysis (id.).
The job audits were conducted in the Spring of 1970
(A. 597-98). Kenneth Siegal, who was responsible for pre
paration of examination 34-944, testified that the job of
Sergeant changed substantially between that time and October
1972, when examination 34-944 was given (A. 174-75, 769).
Even if, in the face of all of the above, it were de
termined that the job audits did constitute evidence of an
adequate job analysis of the job of Correction Sergeant as
it existed in October 1972, defendants' contention that
12/ That the goals of a reclassification study might be incon
sistent with those of a job analysis for test construction purposes
is demonstrated by the fact that while the Sergeant's job was re
classified to the grade of 17 (A. 800), the plan for the super
vision subtest called for questions appropriate for levels 10-14,
and the plan for the report writing subtest called for questions
appropriate for an entry level investigative position (A. 199, n.
12, A . 1335) .
23
examination 34-944 was constructed in a manner consistent with
content validity must be totally disregarded for the simple
reason that, as the District Court found, defendants did not
consult the iob audits in the course of preparing the test items
(A. 175, 903-04).
The lower court found that the other documents relied
upon by defendants as parts of a job description fared no
better: the class specifications (A. 175-78) contain no
information useful for test construction (A. 175-76); the
KS&A statements (A. 1332-36) are irrelevant, both because
they are so lacking in detail and because they were not in
fact used in preparing the examination (A. 176-77, 585, 902);
the rule book (DX—0) while it contains information which
may be important to the job, is "obviously" not part of a job
analysis (A. 177).
As the District Court found, the record does not
establish that the persons who constructed the exam possessed
the kind of knowledge that would make them "living job descrip
tions" (A. 178, 599). Of the three persons from the Department
of Corrections only one, Captain Hylan Sperbeck testified.
Captain Sperback provided 14 of 75 items on Examination 34-944
(A. 982). His qualifications as a Corrections expert, or an
expert with respect to the Sergeant job, are that he started
24
as a Correction Officer in 1957, became a Sergeant in 1968,
a Lieutenant in 1972 and Captain in 1973 (A. 974). Since
March 1970, he has been head of the Training Academy (id.).
Between March, 1970 and September 1972, when preparation of
Examination 34-944 was completed, the only opportunities he
had to observe the Sergeant job, which had changed substantially
in that period (A. 769, 1460), were during five or six weekends
spent at Greenhaven and four days at Attica. The qualifications
of the other two men from the Department of Corrections, Ciuros
and Harris, are not in the record. Defendants' expert testified
however, that line officers with substantial experience in the
job would not necessarily be subject matter experts, that such
experience was highly desirable, but that such a person might
not have developed the depth of understanding that would make
him a subject matter specialist (A. 179, 1049). Plaintiffs'
expert, Dr. Richard Barrett, pointed out that people who are
too close to a job sometimes are unable to see what is truly
important, and that defendants' subject matter experts had
apparently not studied the job from the point of view of
constructing a test (A. 1134). Of the three persons from
Civil Service who worked with Corrections personnel on the
subtests on rules, correctional methods, and judgment, only
one, Kenneth Siegal, testified. His knowledge of the Sergeant
position was limited to what he might have derived from an
25
examination of job audits, class specifications, tests,
training manuals, prior examinations, and a visit to
Coxsackie, where he spent one or two hours conferring with
Sergeants (A, 179, 755-57,776-83, 8 8 8). Similarly, defendants
did not call as witnesses the persons who prepared the sub
test on supervision and preparation of written reports, which
constituted 40% of the examination, and there is no evidence
of their qualifications as either subject matter or test con
struction experts. The testimony shows, however, that the
persons who prepared these two subtests had no contact with
Corrections personnel (A. 179, 504).
The District Court found not only that the record does
not establish that the knowledge and qualifications possessed
by the test constructors constituted a job analysis, but that
"a contrary inference is warranted" (A. 180).
The conclusion of court below that defendants had not
performed an adequate job analysis (A. 180) is clearly sub
stantiated by the record.
b. The type of examination, its scope, the weight of
the subtests and the pass-point were not determined
in a manner consistent with content validity.
That examination 34-944 was not prepared in a manner
consistent with content validity is further evidenced by the
"lack of professionalism" which characterized the way in which
26
the scope of the examination, the method of evaluation (i.e.,
a written exam as the sole measure), the number of items on
each subtest, and the cut-off score were determined (A. 180).
At last since 1964, the promotional examination for
the Sergeant position has been a written multiple-choice
test (A. 1469). Kenneth Siegal testified that the decision
to give a written test was "a decision of history" (A. 933).
The Training Course Textbook used by the Civil Service Com
mission states that "[a] determination to use a written test,
however, should be based on a conscious decision that the KS&A
required on the job can best be measured by a written test (A.
1728). Plaintiffs' expert testified that very rarely is only
one procedure, such as written examination, used in selection,
and that where it is, it is inappropriate to do so (A. 1161-62).
While performance ratings may be used as part of the promotional
process (Civil Service Law §52(2); A. 907-08)/ here they were
not (A. 617-18, 908, A. 180-81).
Like the decision to rely exclusively on a written
examination, the court below found that the determination
of the scope and organization of the exam was merely a
"slavish imitation of earlier examinations which ... in
this case indicates an alarming lack of independent thought
about how to assure that 34-944 was job-related (A. 181-82).
27
For an examination to be content valid, it must
consist of a representative sampling of those knowledge and
skills which are deemed critical to successful performance
of the job being tested for (A. 1114, 1763). Despite the
fact that, as Kenneth Siegal recognized, the Sergeant's job
had changed significantly in the last ten years, indeed in
the last two years, (A. 769, 936), the fact is that the
scope of the 1972 examination was identical to that of the
1964, 1968 and 1970 tests, except that some examinations
covered interpretation of written materials in lieu of or in
addition to preparation of written reports (A. 936, 1469).
As the District Court found, this similarity was the result
of the test planners' heavy reliance on prior scope statements
(A. 182, 766-67, 895 ) .
The relative weight given to each critical element of
job performance is related to the importance of a representa
tive sampling of the various elements. The portion of the
examination devoted to measuring a particular group of
knowledges, skills and abilities must bear some relation to
their importance in performing the job. Samuel Taylor, who
has overall responsibility for the construction and validation
of Civil Service tests, assumed that the persons constructing
28
examination 34-944 made a conscious determination that each
of the five subtests was equally important (A. 613). But
in fact 15 items were used on each subtest only because
using the same number of items made it easier to do certain
types of analyses and Civil Service always works on the
basis of 15 questions per subtest (A. 802-03, 936). Indeed,
in the absence of a job analysis which states the relative
importance of various skills and knowledges, it would have
been impossible to construct the examination on any basis
other than guess-work (A. 183).
The fact that 60% of the items on the Sergeant exams
were also on the Lieutenant exam (A.771-72,13 5 3 ) further points
up defendants’ failure to tailor examination 34-944 to the job
for which it was testing (A. 183).
The District Court found that "the decision to establish
the passing score of 70% subordinates the goal of job-related-
ness to that of administrative convenience" (A. 183). The
Civil Service training course textbook states:
"We have seen that the validity of a test is
related to the pass point selected . . .
A . Objectives in Setting a Pass Point
1. We want to set the passing point so that
a high percentage of ihose who pass are
29
competent to do the job and a low percentage
of those who pass are incompetent to do the
job.
2. We also want to set the passing point so that
relatively few of those competent to do the
job fail the test and most of those who fail
are incompetent to do the job." (A.1767).
Plaintiffs' expert witness expressed the same view (A. 1118-
19, 1161-62). Samuel Taylor and Siegal both testified that
the pass point on examination 34-944 was set at the maximum
permitted by law (A. 760); and that the decision to do so was
made after the examination was scored, on the ground that such
a passing score would create a pool of passing candidates
sufficient to meet the needs of the Corrections Department
(A. 616, 760-763). Taylor admitted that the function of the
passing score was more to regulate the number of people who
would be eligible for the job than to indicate whether or
not a candidate is qualified. The court below found that
this approach "departs from the requirement, imposed by law,
that such decisions be made so as to further the paramount
goal of job-relatedness " (A. 184).
30
2. Defendants Have Not Shown Examination 34-944 To Be
Job-Related.
Having found that the preparation of examination
did not conform to professionally acceptable or legally
required standards, the court below proceeded to consider
whether the examination was nevertheless in fact related
to the Sergeant job. Far from finding convincing evidence
of job-relatedness, as required by the sliding scale approach
of Vulcan, supra, 490 F.2d at 396, Judge Lasker found that
"positive evidence of job-relatedness is conspicuous by its
absence" (A. 184).
Defendants' expert refused to testify that the exam
was job-related (A. 1046). Plaintiffs' expert gave his
opinion (1 ) there had been no showing that the test was job-
related and (2 ) there was substantial reason to doubt that
the test was in fact valid (A. 1132-33).
Witnesses for both sides testified that there were a
substantial number of questions about laws, rules and regu
lations that a Sergeant would have no occasion to apply
(A. 365-67, 369-70, 789, 1010). Dr. Barrett testified that
the subtest on laws, rules and regulations (A. 1356-58, NOs.l
-15) seemed to deal with matters that were trivial or had
nothing to do with a Sergeant's job (A. 1140-41). He also
31
testified that to the extent that a test contains items which
a person would not have to apply, it cannot be claimed to have
content validity (A. 1141-42), With respect to the subtest on
modern correctional methods(A. 1358-60, Nos. 16-30), Dr. Barrett
pointed out certain specific defects in some of the items and
possible inconsistencies between items (A. 1146-50). As to the
subtest on supervision (A. 1360-62, Nos. 31-45), Dr. Barrett
pointed out that there is no evidence that people who follow
one set of principles are better supervisors than persons who
follow another. Furthermore, the supervisor-subordinate re
lationship is so complex that it cannot be tested with the
type of items on the subtest (A. 1151). With respect to the
report preparation subtest (A. 1363-67, Nos. 46-60), five of
the items were poorly constructed in that they put the test-
wise taker at an advantage (A. 1156-58). Dr. Barrett testified
that the fifth subtest, on judgment (A. 1369-71), was poorly
constructed, principally because persons do not necessarily
act in judgment situations the way they say, on examination,
that they would act (A. 1159-60).
It was Dr. Barrett's opinion that examination 34-944
would not meet professional standards of test development
(A. 1160-61). The District Court agreed (A. 185-86).
32
Judge Lasker found of even greater import the fact
that examination 34-944 failed to test several of the traits,
skills and abilities that were identified by witnesses for
both sides as crucial for success as a Correction Sergeant.
Among these are leadership, empathy, understanding of the re
socialization process, ability to rela.te to people of different
backgrounds and to treat them fairly, and ability to function
in crisis situations (A. 311, 354, 457, 545, 938). By omitting
consideration of these essential qualities, he concluded, the
test performance does not reflect a true and fair estimate of
.12/
the overall relative qualifications of candidates (A. 186).
13/ Judge Newman, in Bridgeport, supra, held that an examina
tion which had not been shown to sample the qualities necessary
for successful performance could not meet the standard for job—
relatedness, stating:
There has been no showing that the exam measures with
proper relative emphasis all or even most of the essen
tial areas of knowledge and the traits needed for proper
job performance. Even if the exam need not be comprehen
sive 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 of patrolman. This is not to
doubt that arithmetic and reading comprehension are im
portant for policemen. But without evidence, it cannot
be determined whether this exam, in identifying those
with skill in these areas, might not screen out others,
somewhat but not seriously deficient in these areas, who
would excel as policemen because of their talents in
areas not tested for at all. An exam of this sort,which
does not attempt to be comprehensive in testing for con
tent or constructs, employs a sampling approach. Such
an exam might, in some circumstances, be shown to meet
the standard of job relatedness. But the evidence does
not establish the representativeness of the knowledge or
traits sampled by the exam used here. 354 F.Supp. at 792
33
In their brief, defendants attempt to establish the
job-relatedness of examination 34-944 by comparing various
\
Sergeants' activities that were mentioned at trial or in
individual post descriptions prepared at correctional
facilities (A. 1788-1921) with the KS&A statements (A. 1332-
36) (Br. 96-103). Such a comparison, they argue, shows that
examination 34-944 tests for all the tasks a Sergeant performs.
This argument must fail because there is no support for its
underlying premises. First, there is nothing in the record
to support the premise that the duties statements are accurate
job descriptions. Siegal testified that the identity of the
persons who prepared them was not known (A. 863). Just as with
job audits there is no evidence of any guidelines or procedures
followed in preparing them. Secondly, and more important, the
record is similarly devoid of evidence to support the premise
that the KS&A statements bear any relationship to examination
3 4-9 4 4 . To the contrary, the District Court found that the
KS&A statements were so lacking in detail as to serve no use
ful purpose and further, that they were not relied on in
preparing the test (A. 177).
In view of the above, it is difficult to see how, on
this record, the court below could have arrived at any con
clusion other than that defendants failed to meet the burden
of demonstrating job-relatedness of examination 34-944.
34
II. THE DISTRICT COURT'S DEFINITION OF
THE CLASS WAS NOT CLEARLY ERRONEOUS
Defendants' contention that the class should have
been limited to Black Correction Officers at Ossining, based
as it is on the argument that they are the only minorities
with respect to which examination 34-944 had disparate impact,
must fail with the rejection of that argument, (See pp. 16-18,
supra.).
Defendants also claim that it was error to include
in the class persons who passed the exam but scored too low
to be appointed. The District Court's finding that the
interests of such persons are identical to plaintiffs'
interests (A. 199 n.15) is not clearly erroneous. Contrary
to defendants' statements that the existence of such a class
is speculative (Br. 109), there was undisputed evidence as
to the number of persons to be appointed (see p . 1 0 , supra);
accordingly, the persons who ranked too low can be readily
identified.
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
IN ORDERING DEFENDANTS TO PREPARE A CRITERION-
VALIDATED EXAMINATION AND IN MANDATING APPOINT
MENT RATIOS TO CURE EFFECTS OF PAST DISCRIMINATION
A . Applicable Legal Principles
This Court has recognized as "the basic tenet" in passing
upon relief granted by a trial court in a case of this sort that
35
"the district court, sitting as a court of equity, has wide
power and discretion to fashion its decree not only to pro
hibit present discrimination but to eradicate the effects of
past discriminatory practices", Bridgeport, supra, 482 F.2d
at 1340, citing Louisiana v. United States, 380 U.S. 145, 154
(1965) and United States v. Wood, Wire & Metal Lathers. Local
46. 471 F.2d 408, 413 (2d Cir.)> cert, denied. 412 U.S. 939
(1973) ("Lathers"). In Vulcan, this Court, quoting Inter
national Salt Co. v. United States. 332 U.S. 392, 400 (1947),
stated, "The framing of decrees should take place in the
District rather than in the Appellate Courts". 490 F.2d at
399. Most recently,in Rios v. Enterprise Association Steam-
fitters Local 638. 501 F.2d 622, 631 (1974) ("Rios"), this
Court has reiterated its determination to leave the nature
and extent of relief from past discrimination to the sound
discretion of the trial judge.
The above cited cases are ample authority for the
proposition that the determination of procedures to be used
in developing a job-related test is confided to the lower
court's sound discretion.
As to the promotional preferences mandated by the
District Court, this Court has repeatedly affirmed relief
of this type. In the private employment context, it has
held that "while quotas to attain racial balance are
36
forbidden, quotas to correct past discrimination are not",
Lathers, supra, 471 F.2d at 413. See also, Rios, supra,
501 F .2d at 629 and cases cited therein. It has noted with
full approval that"Section 1983 cases have also granted
relief by sanctioning quotas aimed at curing past discrimi
nation," Bridgeport, supra, 482 F.2d at 1340. In each of
the cited cases, this Court affirmed (in relevant part)
rigorous decrees including preferential hiring requirements
or quotas. The element that makes the affirmative pro
visions both lawful and necessary is proof of prior discri
mination or its continuing effects. Louisiana v. United
States. supra; Bridgeport, supra, 482 F.2d at 1340.
B. The Court Below Did Not Abuse Its Discretion
In Requiring That New Job Selection Procedures
Be Validated By Criterion-Related Techniques
The District Court's decree orders defendants to
develop, in the shortest practicable time, a job selection
procedure, which may include a written examination and/or
other selection instruments (A. 242). The decree requires
that before such a procedure is used for promotional purposes
it must be validated, and that to the extent feasible, such
validation studies must be performed by means of empirical,
37
criterion-related validation techniques (A. 242-43). In
arguing that this requirement constitutes error and abuse
of discretion, defendants confuse the issues of liability
and remedy. It is true that this Court has, at least in
dictum, declared that a discriminatory selection procedure
can be justified by other than a showing of criterion-related
validity. Vulcan, supra. 490 F.2d at 395. However, since
liability has been established, the trial court must fashion
that relief which, on the facts of the case, appears most
likely to right the wrong. Rios, supra. 501 F.2d at 631
14/
14/ There are two forms of criterion-related validation,
predictive and concurrent.
Predictive validation consists of a comparison
between the examination scores and the subsequent
job performance of those applicants who are hired.
If there is a sufficient correlation between test
scores and job performance, the examination is
considered to be a valid or job-related one.
Concurrent validation requires the administration
of the examination to a group of current employees
and a comparison between their relative scores and
relative performance on the job.
Vulcan, supra. 360 F. Supp. at 1273. Both forms require
the identification of criteria which indicate successful
job performance and the matching of test scores with job
performance ratings on the basis of the selected criteria
to determine the degree of correlation between the two.
Bridgeport, supra. 482 F.2d at 1337.
- 38
Decisions in this Circuit and the EEOC Guidelines
agree that cr iter ion ̂-related validation is the best method
of assuring job-relatedness of a selection procedure.
Bridgeport, supra. 482 F.2d at 1337 and 354 F.Supp. at 788;
Vulcan, supra. 360 F.Supp. at 1273; 29 C.F.R. at §1607.5(a).
While this Court has observed that this form of validation
may in some circumstances be difficult, Vulcan. supra. 490
F.2d at 395 and n.10, Judge Lasker's determination as to
its appropriateness in this case is amply buttressed by the
record.
Plaintiffs' expert, Dr. Barrett, testified that a
number of agencies are developing predictively valid select
ion instruments for law enforcement field positions (A. 1178-
80) .
He described the methods by which defendants could
begin to develop criterion-validated selection instruments
for the Sergeant position, comparing the performance of the
present provisional Sergeants with their scores on examinations
34-944 and ratings of their performance as Correction Officers
15/
(A. 1169-1173) .
15/ Cf. Attica, The Official Report of the New York State Special
Commission on Attica (1972), in a discussion of "the department
as it exists, what the problems are", at p.26:
For promotion, evaluations of an officer's performance
on the job and his ability to relate to inmates were
not considered. Written examinations were the key,
and after three years' service any Correction Officer
could take an exam for Sergeant.
39
Kenneth SiegaX indicated that if he had a free hand
l i
in developing a selection process for Correction Sergeant,
he would develop a criterion-validated procedure (A. 957).
Samuel Taylor testified that at least since early 1972 he
has believed that criterion validation of the Correction
Officers series of exams is feasible (A. 651). Indeed, the
Department of Civil Service has a grant from the federal
government under the Intergovernmental Personnel Act to
develop criterion-validated selection procedures for this
series, including the Sergeant job (A. 639-41, 1458-67).
Finally, defendants protestations of the inappropriate
ness (Br. 118) and burdensomeness (Br. 119-20) of the trial
court's order must be viewed in the light of the State's
adamant insistence on defending an examination which was
proved to be woefully inadequate, to the extent of diverting
"for well over a year" the resources of the Civil Service
Department from the preparation of a criterion-validated
selection device to the defense of this case (Br. 160,
second footnote).
C . The Provisions Of The Decree For The Promotion Of
Class Members Were Both Proper And Necessary As Part
Of The Equitable Remedy
The District Court's decree mandates that at least one
Black or Hispanic be appointed to the position of Correction
40
Sergeant (Male) for each three whites so appointed until the
combined percentage of Black and Hispanics in that rank is
equal to the combined percentage of Blacks and Hispanics in
the rank of Correction Officer (Male) (A. 243-44). This
requirement is fully justified by the facts of record and
finds ample precedent in the decisions of this Court.
There is uncontroverted evidence that at least since
1961, there have been only two Blacks and no Hispanics per
manently appointed to the rank of Sergeant or above in the
entire New York State prison system (see pp. 7-8, supra) .
There is substantial unrebutted evidence that this
startling disparity has been brought about by discriminatory,
non-job-related Civil Service examinations. Of the 46 Blacks
and Hispanics who took the 1970 Sergeant exam, not one passed
(see pp. 10-11), supra). Named plaintiffs and five other
Blacks testified they took the exam for Sergeant as many as
four times and never scored high enough to be appointed (see
pp. 13-14, supra). The record is silent as to the job-related-
ness of the previous exams except for substantial evidence that
they were cut from'the same cloth as examination 3 4 - 9 4 4 (pp.13,
27-28, supra). The trial court found that "while there is
evidence of the discriminatory impact of the earlier tests,
there is no evidence as to their job-relatedness" (A. 181-82).
41
in view of the gross underrepresentation of minorities
in the Sergeant rank brought about by past unlawful
practices, as well as by examination 34-944, it was in
cumbent upon the court below to grant relief that would
not only prohibit future discrimination but would also
eliminate the effects of past violations; anything less
would be "illusory and inadequate as a remedy." Rios.,
supra, 501 F.2d at 631.
in simple numerical terms the relief granted is
eminently reasonable and far less than other courts have
granted. In Bridgeport, this Court affirmed a quota for
hiring that required 50% of the first ten vacancies, 75%
of the next twenty, and 50% of some next subsequent
vacancies to be awarded to minority group members. 354 F
16/
Supp. 778, 798-799. In Lathe.ES. this Court upheld an
order requiring immediate issuance of 10 0 work permits to
16/ These numbers represent a hiring quota. This Cour
reversed the district judge's quota on promotions,
reversal was not based on any doubt that such a remedy,
where appropriately supported, would be lawful and necessary
Rather, the Court's holding was grounded on the fact that
the promotional examination had not been shown to be discnm
inatory. 482 F.2d at 1341
42
minority group persons, and a one-for-one quota on
issuance of subsequent permits until 1975, 408 F.2d at
412. In Carter v. Gallagher 452 F.2d 315 (8th Cir. 1971
and rehearing en banc, 1972), an absolute preference (100%)
was struck down but a one-for-two quota was substituted by
the Court of Appeals, 452 F.2d at 331. In Commonwealth of
Pennsylvania v. O'Neill, the Third Circuit upheld a one-
for-two hiring order by an equally divided Court en banc,
348 F.Supp. 1084, 1105 (E.D. Pa. 1972), aff'd in pertinent
17/
part, 473 F.2d 1029 (1973). These figures are in no way
unusual, but rather reflect typical affirmative remedial
provisions in recent decrees.
In Bridqeport this Court specifically enumerated the
factors that persuaded it to approve Judge Newman's hiring
quota. Because of the close similarity of the factual
context of that action to the case at bar, we may apply
the same factors to the present record.
First, the Court noted that
the defendants were employing an archaic
test which was not validated and which . . .
17/ The district court’s similar ratio for promotions
was vacated. As in Bridgeport, the reason was a finding
by the Court of Appeals that no promotional discrimination
had been shown, 473 F.2d at 1031.
43
was not job related. Attacks by Blacks and
other minorities upon examinations emphasizing
verbal skills and not testing the professional
skills of the vocation applied for, have been
under increasing attack, and the failure here
of the defendants to recognize the increasing
evidence that tests of this type have an innate
cultural bias, cannot be overlooked. 482 F.2d
at 1340.
Examination 34-944 and other recent Sergeant examinations were
also "archaic". They differed scarcely at all from past exam
inations, in spite of sweeping recent changes in what is
expected of Sergeants (See pp. 13, 23, 28, supra). Not only
should these defendants have been aware that they were using
a hopelessly outmoded and discriminatory promotional procedure;
they actually were. A. 1458-60.
Second, the Court of Appeals relied on the defendants'
failure to undertake any affirmative steps to recruit minority
personnel, 482 F.2d at 1340. Here, the record is utterly
barren of any affirmative efforts of any nature to overcome
discrimination.
Third and more important, the Court noted that the
District Court had provided that the quota would be filled
by "qualified Blacks and Puerto Ricans and not merely token
personnel selected because of race and not qualification."
482 F.2d at 1341. This comment is also reflected in the
Carter opinion, 452 F.2d at 331.
44
As in those cases, the lower court here has assured that
persons who ultimately benefit from preferential promotional
provisions are qualified by ordering the development of
validated selection procedures.
Finally, the Court in Bridgeport noted with emphasis
that
This is not a private employer and not
simply an exercise in providing minorities
with equal opportunity in employment. This
is a police department and the visibility of
the Black patrolman in the community is a
decided advantage for all; segments of the
public at a time when racial divisiveness is
plaguing law enforcement. 482 F.2d at 1341.
The same comment is equally forceful in the correctional
field, which is of course a crucial aspect of the law enforce
ment system. The point is made more telling by the fact that
in most of New York State's correctional facilities the inmate
pupulat ion ranges upward from 5 0% to over 80% Black and Hispanic
(A. 1279). And we have become sadly aware of the dangers of a
largely minority-group, urban inmate population controlled by
almost exclusively white, rural corrections personnel. See
generally, Attica: The Official Report Of The New York State
Special Commission on Attica (Bantam, 1972).
In sum, plaintiffs submit that on the facts of the
present case, the record fully justifies the affirmative relief
granted by Judge Lasker.
45
IV. THE DISTRICT COURT DID NOT ERR IN GRANTING
PLAINTIFFS THEIR COSTS INCLUDING ATTORNEYS'
FEES AGAINST DEFENDANTS.
Plaintiffs prevailed below on virtually every issue raised
in this class action, which involves a question of great public
importance. Finding that plaintiffs' victory had vindicated
the public interest, the district court awarded them costs,
including reasonable attorneys' fees, to be paid by the State
defendants (A.190-A.196). The court below found such an award
within its power and remedial discretion, although this action
was not brought pursuant to a statute which expressly provides
18/for such an award.
Defendants attack this award as both constitutionally
impermissible and an abuse of equitable discretion. Their
challenge must be rejected on both grounds.
A . The Eleventh Amendment Does Not Bar the Award of
Attorneys' Fees Against the State Defendants.
Defendants base their constitutional argument on the assump
tion that any award of costs which would be paid out of state
funds violates the Eleventh Amendment. This Court has already
rejected that assumption and the argument must therefore fall.
Defendants note that the named defendants, Oswald, Poston,
Scelsi, and Stockmeister, were not, in their purely private
capacities, brought within the court's jurisdiction (Br. 132).
18/ The court retained jurisdiction to receive evidence and
determine the amount of the costs and reasonable attorneys' fees
due plaintiffs, c_f. City of Detroit v. Grinnell Corp. , 495 F.2d
448 (2nd Cir. 1974).
-46-
Defendants concede, however, that those individuals were
properly before the court in their representative capacities,
19/
as co-defendants of the two state agencies (Br. 144). Defen
dants argue that since an award against them individually in
their official capacities will be paid out of state funds within
2 0/
their control, it is barred as against a sovereign (Br. 144).
In the past two years — particularly since Edelman v.
Jordan, 39 L.Ed. 662 (1974) — the courts have frequently been
19/ Defendants have never contested the court's in personam
jurisdiction over them in their official capacities. Shortly
after suit was filed, the Attorney General accepted service for
defendants on this basis, while declining to accept such service
"to the extent they are sued individually11 (A.82). In defendants'
Answer filed July 10, 1973, they alleged, "[t]his Court lacks
jurisdiction over defendants Poston, Scelsi, and Stockmeister
insofar as they are named as defendants in other than their offi
cial capacity" (A.96). In an affidavit filed June 24, 1974, the
Assistant Attorney General in charge of this case affirmed that,
at the hearing of the motion in chambers [May
24, 1973] your deponent advised the Court that
she was authorized to waive service on behalf
of the public agencies and the named defendants
in their capacities as public officials but that
she had no authority to waive service upon the
natural defendants in their private capacities.
(p • 2)
* * * *
...[A]ny participation of Mrs. Poston and
Messrs. Preiser, Scelsi, and Stockmeister in
the conduct of the lawsuit must be viewed as in
defense of their official positions since that
was the only capacity in which they could have
been held liable. (p.6)
20/ The natural defendants are the highest officials of the two
state agencies involved in this litigation. The court below
assumed that the award would, in fact, be paid by state agencies
(A.194-A.195). See also, Class v. Norton, __ F.2d __ (2nd Cir.
No. 74-1702, October 10, 1974), slip op. at 90-91; Stolberg v.
Members of the Board of Trustees for the State Colleges of
Connecticut, 474 F.2d 485, 490 n.3 (2nd Cir. 1973); Gates v.
Collier, 489 F.2d 298, 302 (5th Cir. 1973), reh. en banc granted.
-47-
asked to interpose the Eleventh Amendment as a jurisdictional
bar to monetary awards against state defendants. Edelman and
other authorities may cast substantial doubt on the constitu
tionality of awards of monetary damages or "retroactive benefits"
against state defendants in some statutory contexts, see Class
v. Norton, __ F.2d __ (2nd Cir. No. 74-1702, October 10, 1974),
slip op. at 88-92. But this Court, like others, has refused to
bar an award of costs including attorneys' fees even where they
will be paid from state funds.
In Jordan v. Fusari, 496 F.2d 646 (2nd Cir. 1974), an
unemployment benefits action under 42 U.S.C. § 1983, this Court
rejected a post-Edelman Eleventh Amendment challenge by state
defendants to an attorneys' fee award. The Court held the
Eleventh Amendment inapplicable to such a case because the award
had only an "ancillary effect on the state treasury" which flowed
from the necessary corrective injunctive relief, 496 F.2d at 651.
This Court reaffirmed its position in Class v. Norton, supra, a
welfare case, stating specifically that the "ancillary effects"
doctrine exempts an award of costs including attorneys' fees
from Edelman's proscription, slip op. at 90-91. Prior to the
Edelman decision, this Court had reversed a district court's
denial of attorneys' fees against state officials in a teacher's
employment case under 42 U.S.C. § 1983, Stolberg v. Members of
Board of Trustees for the State Colleges of Connecticut, 474
F.2d 485 (2nd Cir. 1973).
This Court's decision are firmly supported by Supreme Court
authorities. Edelman v. Jordan, supra, teaches that an award
-48-
which has an "ancillary effect on the state treasury" is "a
permissible and often inevitable consequence of the principle
announced in Ex Parte Young, 209 u.S. 123 (1908)," 39 L.Ed.2d
at 675. And the Court has held that a losing state defendant
is liable for the costs of litigation, Fairmont Creamery Co. v.
21/
Minnesota, 275 U.S. 70, 77 (1927). Other courts, like this
Circuit, have taken the Supreme Court authorities to permit
22/
attorneys' fee awards against state defendants, although the
23/
question is not without difficulty.
The courts have not been deterred by the fact that an award
made nominally against a state official in his official capacity
will as a practical matter be paid with state funds. On the
contrary several, including this Court, have recognized that the
real issue is not a mere game of semantics, but whether law
breaking state agencies will be required to bear some of the
— ' Plaintiff s were awarded attorneys' fees as part of the costs
in this case (A.196), as is customary in discrimination cases,
cf. 42 U.S.C. § 2000e-5 (k) (employment discrimination, Title VII
of Civil Rights Act of 1964); 42 U.S.C. § 2000a-3(b) (public
accommodations, Title II, Civil Rights Act of 1964); 42 U.S.C.
§ 3612(c) (housing discrimination, Fair Housing Act of 1968)y 20
U.S.C. § 1617 (discrimination in education, Emergency School Aid
Act of 1972).
22/ Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972) (3 judge court),
aff'd 409 U.S. 942 (1972) (legislative reapportionment); Branden-
burqer v. Thompson, 494 F.2d 885 (9th Cir. 1974) (welfare rights);
Gates v. Collier, supra (prison conditions); Fairley v. Patterson,
493 F.2d 598 (5th Cir. 1974) (voting rights); Milburn v. Huecker,
500 F.2d 1279 (6th Cir. 1974) (welfare rights); cf. Hoitt v.
Vitek, 495 F.2d 219 (1st Cir. 1974) (prisoner rights).
23/ See, e. q., Skehan v. Board of Trustees of Bloomsburg State
College, 501 F.2d 31 (3rd Cir. 1974), cert, filed 43 L.W. 3296;
Named Individual Members of San Antonio Conservation Society v.
Texas Highway Dept., 496 F.2d 1017 (5th Cir. 1974), rehearing
en banc granted; Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974),
cert, filed 43 L.W. 3240; Taylor v. Perini, 503 F.2d 899 (6th
Cir. 1974), cert, filed 43 L.W. 3281.
-49-
ancillary costs incurred in prospectively rectifying their
policies. See cases cited at pp. 48-49, supra, and cf. Incar
cerated Men of Allen County v. Fair, __ F.2d __ (6th Cir. No.
74-1052, November 13', 1974).
There is good reason for this Court to adhere to its "ancil
lary effects" doctrine here. Perhaps the most significant aspect
of this case is plaintiffs' successful effort to require defen
dants to develop and utilize a non-discriminatory, job-related
selection procedure for Correction Sergeants. This forward-
looking remedy will doubtless entail significant expenditures
from the state treasury and further tax the time and resources
of plaintiffs and their counsel. The costs they incur in this
effort are properly taxable as one part of the costs that must
ultimately be borne by the state defendants in order to bring
t
their practices into compliance with federal law.
B. The Award of Attorneys' Fees Was a Proper Exercise
of the Court's Equitable Discretion.
The court below granted attorneys' fees as an exercise of
its remedial discretion, in keeping with a growing line of
authority approving such awards. The court relied on the
"private attorney general" function fulfilled by plaintiffs to
support the award in the absence of a specific statutory provi—
24/
sion for allocation of costs.
^ - 7 This case was not brought under Title VII of the Civil Rights
Act of 1964, which has an attorneys' fee provision, 42 U.S.C.
§ 2000e-5(k), for obvious reasons. Plaintiffs learned the
results of examination 34-944 only on March 15, 1973 (A.17-A.18)
and the appointments to Correction Sergeants were announced on
or about April 4, 1973 (A.41). Suit was filed and a temporary
-50-
The Supreme Court has long recognized the power, as "part
of the historic equity jurisdiction of the federal courts," to
allow attorneys ' fees where necessary "to do equity in a particu
lar situation." Sprague v. Ticonic National Bank, 307 U.S. 161,
165-166 (1939). Thus, a court may award attorneys' fees not
specifically authorized by statute or contractual agreement
where "overriding considerations indicate the need for such a
recovery," Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-
392 (1970), or when "the interests of justice so require," Hall
v. Cole, 412 U.S. 1, 4-5 (1973). Such situations have long been
recognized where the defendant unreasonably opposes or obstructs
corrective litigation, and where the plaintiff confers a sub
stantial benefit on class members and the costs can be spread
among such beneficiaries. Hall v. Cole, supra, 412 U.S. at 5.
Equitable awards are particularly appropriate where private
litigants effectuate a Congressional purpose, see _id. at 13-14,
24/ (cont'd)
restraining order necessary to preserve plaintiffs' rights
obtained on April 10, 1973; the case was tried 103 days later
(A.3-A.4). Under Title VII, at least 180 days (and in New York,
ordinarily 300 days) would have to pass after initial filing of
charges before plaintiffs could have brought suit. See 42 U.S.C.
§ 2000e-5(f)(1). Moreover, this Court has held that the Title
VII administrative requirements need not be exhausted before
suit is filed under 42 U.S.C. §§ 1981, 1983, Gresham v. Chambers,
501 F.2d 687 (2nd Cir. 1974).
In Bridgeport Guardians, Inc, v. Members of the Bridgeport
Civil Service Commission, 497 F.2d 1113, 1115 (2nd Cir. 1973),
cert, filed 43 L.W. 3282, this Court found some negative signifi
cance in the omission of an attorneys' fee provision from §§ 1981,
1983, in contrast to 42 U.S.C. § 2000e-5 (k). Contra, Lee v.
Southern Home Sites Corp., 444 F.2d 143, 145-147 (5th Cir. 1971);
Fowler v. Schwartzwalder, 498 F.2d 145, 145-146 (8th Cir. 1974);
cf. Fleischmann v. Maier Brewing Co., 386 U.S. 714, 719-721
(1967). But Bridgeport Guardians does not rule out attorneys'
fees in the absence of specific statutory authorization; it only
notes that absence in refusing to disturb a district court's
exercise of discretion, see p. 53 , infra.
-51-
Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 396. One
such area of paramount national concern in which attorneys' fees
should be available to effectuate policy is the campaign to
eradicate racial discrimination from our national life, Bradley
v. School Board of the City of Richmond, 40 L.Ed.2d 476, 493
n.27 (1974).
The "private -attorney general" rationale for fee awards,
while more recently articulated than the "obdurate and obstinate"
defendant doctrine or the "common benefit" theory, has found
widespread acceptance. It holds that when a private litigant
enforces a public law or policy at a cost to himself and brings
about benefits to the public as a whole, he should recover his
attorneys' fees. Such recovery is available regardless of the
good or bad faith of the defense or the existence of a monetary
fund created for the class. Recovery is designed to encourage
and make financially possible such public-oriented litigation
by private persons. See Newman v. Piggie Park Enterprises, Inc.,
25/
390 U.S. 400 (1968).
This Court has never reversed a district judge's award of
attorneys' fees based on the "private attorney general" rationale.
27 “ In this public accommodations discrimination case, the Court
noted,
If successful plaintiffs were routinely forced
to bear their own attorneys' fees, few aggrieved
parties would be in a position to advance the
public interest by invoking the injunctive power
of the federal courts.
Id. at 402. Although Title II carries an attorneys' fee provi
sion, 42 U.S.C. § 2000a-3 (b), the same reasoning applies to the
instant action under §§ 1981, 1983.
-52-
In Bridgeport Guardians, Inc, v. Members of the Bridgeport Civil
Service Commission, 497 F.2d 1113 (2nd Cir. 1974), cert, filed
43 L.W. 3282, the Court affirmed a discretionary denial of
attorneys' fees. It held, however, that:
While we do not rule out the possibility that
counsel fees might be appropriate in some
§ 1983 cases, even absent statutory authority,
we see no reason to reverse the determination
below denying them.
497 F.2d at 1115. In Stolberg v. Members of Board of Trustees
for the State Colleges of Connecticut, supra, 474 F.2d at 490,
this Court in dictum adopted the reasoning behind the "private
attorney general" standard. And in Jordan v. Fusari, supra, 496
F.2d at 650, the Court in remanding noted that the "private
attorney general" standard "may well justify a judgment imposing
reasonable attorneys' fees on defendant."
The Courts of Appeals for the First, Fifth, Sixth, Seventh,
Eighth, Ninth, and District of Columbia Circuits have squarely
adopted the "private attorney general" standard for public-
26./
interest cases in a wide variety of statutory and factual settings.
--/ See, e.g., Knight v. Auciello, 453 F.2d 852, 853 (1st Cir.
1972) (housing discrimination, 42 U.S.C. § 1982); Natural Resources
Defense Council v. Environmental Protection Agency, 484 F.2d 1331,
1333-1334 (1st Cir. 1973) (environmental protection, 42 U.S.C.
§ 1857); Hoitt v. Vitek. 495 F.2d 219, 221 (1st Cir. 1974)
(prisoner rights, 42 U.S.C. § 1983); Cooper v. Allen, 467 F.2d
836, 841 (5th Cir. 1972) (employment discrimination, 42 U.S.C.
§ 1981); Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971)
(housing discrimination, 42 U.S.C. § 1982); Fairley v. Patterson,
supra (voting rights, 42 U.S.C. § 1973); Taylor v. Perini, supra,
503 F.2d at 905 (prisoner rights, 42 U.S.C. § 1983); Incarcerated
Men of Allen County v. Fair, supra, slip op. at 5-6 (prison
conditions, 42 U.S.C. § 1983); Milburn v. Huecker, supra, 500
F.2d at 1282 (welfare rights, 42 U.S.C. § 1983); Donahue v.
Staunton, 471 F.2d 475, 483 (7th Cir. 1972), cert, denied 410 U.S.
955 (1973) (employment rights, 42 U.S.C. § 1983); Fowler v.
-53-
This case falls within the "private attorney general" rule.
Plaintiffs have vindicated a public policy of the highest priority
in eliminating unconstitutional and non-job-related barriers to
minority employment by New York State. This achievement will
immediately benefit several hundred Black and Hispanic Correction
Officers, who may now fairly compete with their white colleagues
for promotion. But plaintiffs have also conferred a benefit on
the public at large, beyond the achievement of fair employment
opportunities as an end in itself. The District Court noted
...the public's stake in establishing and main
taining a system of prison administration which
is both competent and representative of the
population. As members of the public, we include,
of course, the inmates of the prison system who,
more than anyone else in the community, are
directly affected by the quality of correctional
supervision.... (A.154).
Defendants are unable to cite a single appellate decision
holding the award of attorneys' fees improper in such a case
pursuant to the "private attorney general" standard. instead,
they urge the Court to blink at the reality of the entrenched
discrimination they have practiced, and would continue to practice,
until plaintiffs force them into compliance with law. Defendants'
26/ (cont'd)
Schwartzwalder, 498 F.2d 143, 145 (8th Cir. 1974) (employment
discrimination, 42 U.S.C. §§ 1981, 1983); Brandenburger v.
Thompson, 494 F.2d 885, 888-889 (9th Cir. 1974) (welfare rights,
42 U.S.C. § 1983); LaRaza Unida v. Volpe, 57 F.R.D. 94, 101-102
(N.D. Cal. 1972), aff'd 488 F.2d 559 (9th Cir. 1973) (relocation
housing, 49 U.S.C. § 1653(f)); Wilderness Society v. Morton, 495
F.2d 1026, 1029-1031 (D.C. Cir. en banc 1974), cert, granted 43
L.W. 3208 (environmental protection, 42 U.S.C. § 4321). See also,
Sims v. Amos, supra, 340 F. Supp. at 694 (legislative reapportion
ment, 42 U.S.C. § 1983).
In addition to the appellate decisions cited supra, see also
the district court decisions cited by the court below at A.193-
A.194.
-54-
arguments are inadequate on their face.
The fact that plaintiffs are represented without fee by-
lawyers associated with a non-profit civil rights organization
whose awards are channeled into further public-interest litiga
tion is entirely irrelevant. This Court has dismissed such a
contention as "singularly unimpressive," Jordan v. Fusari,
supra, 496 F.2d at 649. All other Circuits that have ruled on
the question are in accord. See, e.g., Natural Resources
Defense Council v. Environmental Protection Agency, supra, 484
F.2d at 1338 n.7; Miller v. Amusement Enterprises, Inc., 426
F.2d 534, 538-539 (5th Cir. 1970); Clark v. American Marine Corp.,
437 F.2d 959 (5th Cir. 1971), aff'g 320 F. Supp. 709, 711 (E.D.
La. 1970); Fairley v. Patterson, 493 F.2d 598, 606-607 (5th Cir.
1974); Incarcerated Men of Allen County v. Fair, supra, slip
op. at 7; Brandenburger v. Thompson, supra at 889.
27/
Defendants rely o n (1)the "philosophy" of the New York State
merit system (the implementation of which the Court held uncon
stitutional) (Br. 156-160); (2) the extraordinary assertion that
plaintiffs' action did not vindicate any broad public interest
(Br. 160-162); (3) the equally extraordinary presumption that
private enforcement was unnecessary to secure compliance here
(Br. 163-165); and (4) the absurd suggestion that the relatively
tiny amount otherwise payable as costs would, if left with the
State's other billions, more effectively catalyze amelioration
of unlawful practices than if used to compensate plaintiffs for
their costs (Br. 165-166).
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V. THE INTERVENORS' ABSENCE FROM THIS CASE
UNTIL AFTER ISSUANCE OF THE DECISION
BELOW DOES NOT REQUIRE DISMISSAL.
The intervenors urge this Court, somewhat surprisingly,
to dismiss this action because they did not become parties
28,until after the entry of decision on the merits (Int. Br. 17-18).
A statement of the case as it involves intervenors, which is
omitted from their brief, must preface a discussion of their
arguments.
A. The intervention Proceedings Below.
Intervenors first sought leave to intervene as defendants
in this action on April 22, 1974 (A.201), over one year after
this case was commenced, nine months after trial, and three
weeks after entry of the decision below. Intervenors had, of
course, known about the pendency and nature of the action since
29/
shortly after plaintiffs filed it. Intervenors characterized
themselves as defendants and filed an "Interveners Answer" [sic]
(A.210—20). The Answer included somewhat anomalously a "Prayer
for Relief" seeking from the court affirmative injunctive
Intervenors also, somewhat inconsistently, argue that the
district court's remedy was an abuse of discretion and suggest
their own preferred solutions (int. Br. 27-48). To the extent
that this argument raises substantive issues, they are dealt with
in part III of this brief, pp. 35-45, supra.
29/ Both intervenors affirmed that the Department of Correctional
Services told them of the case immediately after April 12, 1973
(A.202-03, A.205-06). Such was the notoriety of this "widely
publicized" action among affected employees that Judge Lasker
"took judicial notice that its contents have been well known
to those who knew the facts" (A.234). Cf. Int. Br. 24.
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remedies to intervenors1 benefit (A.219-20).
The district court might properly have denied the interven
tion on timeliness grounds, NAACP v. New York, 413 U.S. 345,
365-368 (1973). Out of an abundance of fairness, the court
permitted the intervention on July 15, 1974 (A.230, 237). It
30/
specified several conditions to the grant of intervention. It
precluded intervenors from relitigating issues which they might
previously have raised but which had by then been decided,
including whether examination 34-944 had any job-relatedness or
predictive value as a measure of ability, and whether ratio pro
motions are a proper lawful remedy (A.23 1, 237). At the same
time it rejected intervenors' request to represent a class of
persons said to be "similarly situated" (A.231-32, 237). In
denying intervenors class representative status, the court held
the defendant class motion untimely and unnecessary (A.232-33).
The court also denied intervenors' motion to add approximately
400 other persons who passed examination 34-944 as parties
defendant (A.233-34, 238).
Throughout the proceedings from April 23, 1974 to the entry
of judgment the district court accorded intervenors a careful
21/hearing on all their arguments and assertions. Indeed that
2 2 / The imposition of conditions was well within the court's dis
cretion, Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d
186, 191-192 (2nd Cir. 1970); Advisory Committee's Note to Rule
24, 39 F.R.D. 69, 111 (1966).
31/ Prior to the July 15, 1974 hearing at which the district
judge announced his rulings, another court hearing and several
conferences in chambers were held with counsel for intervenors.
At all times counsel urged, and the court weighed, broad arguments
based on the interests of all persons affected by the court's
actions (A.232).
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consideration was evidently present even before intervenors
formally joined the suit (A.153-54).
Intervenors in this Court seek to argue, as parties, several
issues which the court below specifically precluded them from
32/
raising in this case. The Court should disregard those arguments.
It should also reject the intervenors' presumption that they
may speak for others "similarly situated," despite the district
court's denial of class action status and refusal to join 400
33/
additional defendants on intervenors' request. The elimination
of those issues beyond the scope of the intervention reduces
intervenors to a single position demanding scrutiny here: their
argument that the entire case should be dismissed.
B. Intervenors' Absence From Pre—Decision Proceedings
Is No Reason to Dismiss This Action.
Intervenors urge that Rule 19(b), F.R.C.P., requires dismis
sal of this case in its entirety. That rule provides,
If a person described in subdivision (a)(1)-
(2) hereof cannot be made a party, the court
shall determine whether in equity and good
32/
/ See, e.g., int. Br. 27—28, arguing that no past discrimination
was shown here, cf. A.180-183 and pp. 41-42, supra; int. Br. 28,
asserting that the court's decree will cause promotion of "lower
qualified minority members ... over better qualified whites," cf.
A.183-186 and pp. 44-45, supra; int. Br. 32, 34-35, claiming that
examination 34-944 does measure job performance, cf. A.168-187 and
pp. 20—34, supra; Int. Br. 29, stating remedial quotas violate
Equal Protection, cf. A.41 and pp. 36-37, supra.
j33/ The court below may have been troubled by the divergent interests
within the purported class (e,g., those provisionally appointed
based on 34-944 vs. those who passed but remained too far down
the eligible list to be appointed). it doubted intervenors'
"standing" to speak for others (A.233-34).
-58-
conscience the action should proceed among the
parties before it, the absent person being
thus regarded as indispensable.... 34/
Rule 19(b) then specifies the four factors which will bear on
the court's decision "in equity and good conscience." This rule
is the product of a 1966 Amendment designed to eliminate the
talismanic significance previously attributed to the status of
absent parties deemed "indispensable," see Advisory Committee
35/
Note, 39 F.R.D. 69, 90-91 (1966).
The Supreme Court has exhaustively elucidated the meaning
of Rule 19(b) as amended in Provident Bank & Trust Co. v. Patter
son, 390 U.S. 102 (1968). The keys to that decision are its
common-sense focus on the "equity and good conscience" test and
its rejection of hard-and-fast semantically determined rules.
Provident Bank requires a pragmatic approach to claims that
absent "indispensable" parties require dismissal of actions.
— f Rule 19(a) provides, in pertinent part,
A person who is subject to service of process
and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action
shall be joined as a party in the action if ...
(2) he claims an interest relating to the subject
of the action and is so situated that the dispo
sition of the action in his absence may ... (i) as
a practical matter impair or impede his ability
to protect that interest....
3 5 / The Supreme Court has recently expressed the opinion that,
in the leading case of this former school of thought, Shields
v. Barrow, 17 How. 130 (1855), it acted "perhaps unfortunately"
in stating "general definitions of those persons without whom
litigation could or could not proceed," Provident Bank & Trust
Co. v. Patterson. 390 U.S. 102, 123-124 (1968).
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The decision whether to dismiss (i.e., the decision
whether the missing person is "indispensable") must
be based on factors varying with the different
cases, some such factors being substantive, some
procedural, some compelling by themselves, and some
subject to balancing against opposing interests....
To say that a court "must" dismiss in the absence of
an indispensable party and that it "cannot proceed"
without him puts the matter in the wrong way around:
the court does not know whether a particular person
is "indispensable" until it has examined the situation
to determine whether it can proceed without him.
390 U.S. at 119.
See also, Schutten v. Shell Oil Co., 421 F.2d 869, 873-874 (5th
Cir. 1969).
Under the approach dictated by Provident Bank, the Court
must refuse to dismiss this case. All four factors cited in
the rule and discussed in Provident Bank oppose dismissal. First,
36/
the judgment rendered in the absence of intervenors is not
prejudicial, in that it deprives them of no rights lawfully
theirs, see pp. 61-62, infra. Second, the district court can
shape the ultimate remedy— the Order and Decree of July 31, 1974
is merely an interim judgment which envisions further remedial
steps— to accommodate intervenors' legitimate interests. Third,
the judgment can be fully adequate without the joinder of 40011/additional defendants. Finally, if this action is dismissed
plaintiffs and over 100 members of their class will be deprived
It is not strictly correct to speak of intervenors as "absent"
from the proceedings leading to judgment. They participated fully
in all the steps after issuance of the memorandum decision leading
to the court's formulation of the Order and Decree filed July 31,
1974, and were at that time full parties on their own motion.
37/ No other result is possible in light of the Supreme Court's
explanation that this factor involves "the interest of the courts
and the public in complete, consistent, and efficient settlement
of controversies" and considerations of the time and expense
already invested in trial proceedings, Provident Bank, supra, 390
U.S. at 111.
-60-
of an adequate remedy. Dismissal would deprive all present
minority provisional sergeants of their jobs and deprive all
class members of an opportunity to compete on a non-discrimina-
tory basis for the over 100 vacancies whose provisional occupants,
chosen by test scores, would then receive permanent appointments.
"Equity and good conscience" will not permit this result.
Intervenors' long delay in asserting their position must
also weigh in the court's equitable determination. Intervenors
chose to remain outside the litigation until an adverse decision
was entered; then they tardily intervened only to seek to influ
ence the remedial judgment. At no time before the appeal did
they suggest dismissal; on the contrary, they seized on this
action below as a vehicle for asserting their own cause of action
against the original defendants (A.211-220). Courts of equity
have not looked with favor on similar tactics in other interven
tion cases. See, e.g., Benger Laboratories Ltd, v. R. K. Laros
Co., 24 F.R.D. 450, 453 (E.D. Pa. 1959), aff'd 317 F.2d 455 (3rd
Cir. 1963), cert, denied 375 U.S. 833 (1963); Parker Rust-Proof
Co. v. Western Union Tel. Co., 105 F.2d 976, 979 (2nd Cir. 1939),
cert, denied 308 U.S. 597 (1939); Rios v. Enterprise Association
Steamfitters, Local 638, 8 EPD f9558 (S.D. N.Y. 1974); Patterson
v. Newspaper and Mail Deliverers' Union, 8 EPD f9736 (S.D. N.Y.
1974). Intervenors' tactics are particularly inequitable in
that the burden on them to protect their interests would not
have been overwhelming, cf. Natural Resources Defense Council v.
Tennessee Valley Authority, 340 F. Supp. 400 (S.D. N.Y. 1971),
rev'd on other grounds 459 F.2d 255 (2nd Cir. 1971); Advisory
-61-
Committee1s Note to Rule 19, 39 F.R.D. 69, 92 (1966).
The "rights" asserted by intervenors are not indefeasible
property rights, as they repeatedly contend, but only expect
ancies. Neither intervenors nor any member of their purported
class has ever held a permanent Correction Sergeant position;
all their appointments were made provisional by order of the
court below (A.61-65). The New York Civil Service Law specifi
cally provides that the job rights of provisional appointees
terminate as soon as regular permanent appointments are made,
McKinney's New York Civil Service Law § 65 (1973). See Russell
v. Hodges, 470 F.2d 212, 216-217 (2nd Cir. 1972) (provisional
38/
appointees have no "property" interest in continued employment).
Cf. United States v. Bethlehem Steel Corp., 446 F.2d 652, 663
(2nd Cir. 1971), ("[ajssuming arguendo that the expectations of
some employees will not be met, their hopes arise from an illegal
system"); accord, Robinson v. Lorillard Corp., 444 F.2d 791, 800
(4th Cir. 1971), cert, dismissed 404 U.S. 1006 (1971). The same
logic precludes this Court from honoring the expectations derived
by intervenors from an unconstitutional examination.
The court below could have properly proceeded without inter
venors, particularly since this is a proceeding to enforce public
rights. National Licorice Co. v. N.L.R.B., 309 U.S. 350, 365-
366 (1940) (employees not indispensable parties to action to
enjoin employer from enforcement of their contract rights as
Russell specifically rejects the intervenors' lengthy argu
ment (Int. Br. 17-26) that their termination would violate due
process by depriving them of liberty or property without a prior
hearing.
-62-
illegal). It chose instead to let them participate before
entering its judgment. This Court should require no more. The
effect of the dismissal urged by intervenors would be to rein
state a racially discriminatory selection procedure and to
require defendants, under state law, to appoint a generation of
39/
Correction Sergeants under federally unlawful standards. Instead,
this Court should, by affirming, advance the day when defendants
will adopt non-discriminatory selection procedures.
CONCLUSION
For the reasons stated above, the judgment of the court
below should be affirmed.
Respectfully submitted,
JACK GREENBERG
MORRIS J. BALLER
DEBORAH M. GREENBERG ^
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiffs-
Appellees
— / Such a result would bring about the immediate or eventual
appointment of approximately 157 white Correction Sergeants and
just two minority persons (see p. 10, supra).
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CERTIFICATE OF SERVICE
This is to certify that on this 23rd day of December,
1974, I served two copies of the Brief for Plaintiffs-Appellees
upon the following counsel by United States Mail, postage pre
paid :
Hon. Louis J. Lefkowitz
Attorney General of the State
of New York
Judith A. Gordon, Esq.
Assistant Attorney General of
the State of New York
Two World Trade Center
New York, New York 10047
Richard R. Rowley, Esq.
Sneeringer & Rowley, p.C.
90 State Street
Albany, New York 12207
Attorney for plaintiffs-/
Appellees, Edward L./Clrkland
and Nathaniel Hayes
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