Althiser v. New York State Department of Correctional Services Petition for a Writ of Certiorari
Public Court Documents
October 21, 1983

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Brief Collection, LDF Court Filings. Althiser v. New York State Department of Correctional Services Petition for a Writ of Certiorari, 1983. 05059eaa-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/336cf702-4df2-41e8-b34e-8309065b00ef/althiser-v-new-york-state-department-of-correctional-services-petition-for-a-writ-of-certiorari. Accessed April 29, 2025.
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No. I n the §ktpnm ©Hurt uf % MnxUb States October Term , 1983 F R E D E R IC K E. A L T H ISE R , et v. a l, Petitioners, N EW YORK STA TE D EPA R T M E N T OF CORRECTIONAL SER V IC ES, et a l, Respondents. Petition for a Writ o f Certiorari to the United States Court o f Appeals for the Second Circuit R ichard R. R owley (Counsel of Record) R owley, F orrest and O’Donnell, P.C. Mark T. W alsh, J r ., Of Counsel 90 S tate S treet Albany, NY 12207 (518) 434-6187 Counsel for Petitioners D ated: October 21, 1983 Questions Presented. 1) Whether, consistent with the Fourteenth Amendment to the United States Constitution and/or Title VII of the Civil Rights Act of 1964, a State may agree with minority plaintiffs to abrogate a civil service eligible list compiled on the basis of the results of a competitive promotional examination about which there has been neither inquiry, proof nor adjudication of discrimination against minorities and which the State denies discriminated against minorities in any way and instead substitute a promotional scheme which guarantees minorities a percentage of promotions equal to the percentage of minorities in the applicant pool and moves minorities ahead of whites who earned higher test scores over the objections of such whites whose promotions will be delayed for months or years causing loss of collectively bargained and other “ time in title” seniority benefits including further promotional opportunity, and who assert that the examination was a non-discriminatory job- related “ professionally developed ability test.” 2) Whether, consistent with the Fourteenth Amendment to the United States Constitution and/or Title VII of the Civil Rights Act of 1964, a Federal Court may approve and enforce the agreement above without inquiry, proof or adjudication of unlawful discrimination against minorities. 3) Whether the passing white candidates have an interest pro tectable by the due process clause of the United States Constitu tion in their earned positions on the eligible list. 4) Whether the white civil service employees have a right to full intervention to protect their earned rank on the eligible list so as to allow such intervenors the right to defend the examina tion by which they achieved their rank on such list. 11. Page Parties. In addition to Frederick E. Althiser whose name appears in the caption, petitioners include those listed below.* ♦Paul W. Annetts William C. Badger Arlo G. Baker Philip Barbarello John A. Battista Edward J. Beauchemin Robert L. Bennett James E. Berg Roland D. Besimer John F. Bickford Allen F. Blades Howard Block John O. Block Ronald E. Bodge Wilbert Boileau Charles William Bowes Harmon Boyd Marilyn J. Bradt Robert Butchino Carl C. Caldwell Alexander D. Campbell Thomas E. Canning Winifred V. Carron Richard A. Cherry Norman W. Christian Lois B. Coffey Ismael C. Colon Clarence William Colwell Dennis M. Conroy James T. Conway William L. Corlew Fred R. Coutant Wayne L. Cuer Joseph DeCaterina Andrew J. DeGaust Richard Delany Daniel L. Denkenberger Thomas P. Devlin, Jr. (Continued on following Edward T. DeVoe Elwyn M. Dickson Anthony J. DiDonna Edward R. Donnelly Richard P. Donohue Donald J. Dunn William Eddy Carl Edwards Kenneth Eissing Paul E. Ellsworth William H. Eull Ludrick E. Fabian John Festa Thomas R. Fish Peter J. Fitzgerald Thomas R. Fitzgerald Henry L. George John F. Gilsenan Orville J. Gload Kenneth J. Goewey Richard W. Gordon Alan A. Gratto Daniel B. Green Melvin R. Greenfield James C. Haight Charles J. Hamel James H. Handlin, Jr. Neil Harris Ronald D. Haseltine Thomas Heffernan Roy W. Henneberg Hugh P. Hicks Dennis E. Hoff Bruce A. Kessler Robert J. Kirby Frank Kisch Harry E. Klages Charles A. Kline Robert G. Knapp Lewis J. Kordyl, Jr. Marvin Kushner Edward R. LaDuke Gary J. LaVarnway David Lavigne Morton D. Lawliss James H. Layhee George Liberty Joseph Michael Liffland Aelred F. Lippold Elendo J. Lombardi Robert E. Mahoney Richard P. Malark Francis R. Maloney Howard Maneely George W. Manor John McCabe Robert J. McClellan Russell J. McClellan Patrick B. McGee Gordon C. Melville John T. Miner Gary L. Mitchetti James H. Morgan Ferenc Morvai Ronald W. Moscicki H. J. Mulhall Carl A. Nico Gary C. Nolan Ronald R. Norton Louis Padilla Max A. Palmer Wilfred V. Parotte Melvin A. Pavquette, Jr, Daniel M. Pelton Keith D. Perkins Walter F. Pitt page) 111. Page In addition to those named in the caption, respondents in clude, Thomas A. Coughlin III, individually and in Ms capacity as Commissioner of the New York State Department of Correc tional Services; The New York State Civil Service Commission; Joseph Valenti, individually and as President thereof and as a Civil Service Commissioner; Josephine Gambino and James McFarland, individually and in their capacity as Civil Service Commissioner; Edward L. Kirkland, Joseph P. Bates, Sr., Ar thur E. Suggs, each individually and on behalf of all others similarly situtated; Robert McClay, Ray Smith, Charles Mutz, Gary Bartlett, Bob Pressel, L. Kinney, Gene Vanover, Herbert Jones, Larry George, Raymond Peters, Gordon Wells, Donald Carey, R. Vissmer, P. Bufalo, S. Delsanto, J. O’Rourke, R. Weed, D. Butterton, T. Brooks, James Bonnell, Jr., Ronald Krom, Wayne Elberth, Paul Borko, Ken Curry, John Higgins, Ronald Kurz, George Ribas, Mark Reeves, Joseph Mitchell, A1 Luning, Ronald Kelly, Arthur Shuts, E. Hanscom, R. Wilson, V. Su>tt V. Dunn, C. Harvey. (Footnote continued) Brian Pleace Allyn D. Plowe Richard S. Pochintesta James L. Pollack William D. Poole Douglas W. Powers Robert E. Racette John R. Rafferty Leonard C. Rathbun Fred Rayce Walter Redgate Walter J. Rivers Stanley M. Rushford Charles T. Ryan Dennis Ryan George R. Schirndt Patsy .1. Sciarra William G. Scott Robert M. Semski John Senchack David A. Sharp Arthur P. Sheets Joseph H. Sheldon John M. Sherlock Harvey Jay Singer James C. Sipe Ronald C. Skinner Francis J. Sluka Larry D. Smith Warren Smith Norman Steinhilber Arthur J. Steinhofer William J. Stiles Harold L. Streigold Paul F. Stringham John M. Sullivan Gary Tauurmins Neil A. Terwilliger Francis W. Tessier Dennis Thompson James Tompkins Robert J. Tyrell Augustine E. VanOrden Roger N. Walker David W. Walsh Conrad K. Walter Jack Weiman Betty J. Welch Milo Williams Ralph J. Wolcott Donald R. Wolff Arthur Wood Norman M. Zelinsky IV. Table o f C ontents. Page Questions Presented.....................- ................................ 1 P a rtie s ........ .....................................................- ...................... 11 Table of Contents................ ...........................- • • • .............. 'v Table of Authorities............................... .................... ............ vi Opinions Below ....................... .............................................. * Jurisdiction ................................... ............................ 2 Constitutional Provisions, Acts, Statutes and Rules and and Regulations Involved ............................. .. 2 Statement of the Case .......... .. 2 Introduction ........................................................... • •• 2 Facts ................ ............................................................... 2 Reasons for Granting the Writ: I. This case is important as it allowed a State to estab lish a racial classification depriving innocent and objecting career employees of promotional op portunity upon a mere claim of discrimination . . . 8 II. The issues in this case are similar to those in a case now pending before this Court, and the case at bar should be heard as w e ll .......... .......................... 19 III. In determining the nature and scope of petitioners’ rights, the Court of Appeals’ decision is in con flict with the decisions of the New York Appellate Courts on matters of State Law ............................... 20 V. Page IV. The questions concerning the scope and nature of intervention are intertwined with the questions going to the merits of the litigation and are ex ceedingly important ........................... ...................... 24 C onclusion.......... .................................................... .............. 25 Appendix A—Decision in the United States Court of Ap peals, June 8, 1982 ................................. .. la Appendix B—Order of the United States Court of Ap peals Denying Rehearing .................... lb Appendix C—Decision of the United States District Court, December 1, 1982 ...................... .................. 1c Appendix D—Order of United States District Court, Dated November 9, 1982 ..................................... Id Appendix E—Ruling of the United States District Court, September 29, 1982................................................. le Appendix F—Settlement Agreement................................... If Appendix G—Constitution, Acts, Statutes, Rules and Regulations.............................................. ig VI. TABLE OF AUTHORITIES. Page CASES: United States Supreme Court: Aikens v. United States Postal Service,____U S ____ , 51 USLW 4354 (1983)........ ................. 10 Board of Regents v. Roth, 408 US 564 (1972)............. 23 Brown v. Board of Education, 347 US 483 (1954) . . . . . . . 21 Connecticut v. Teal, 457 US 440 (1982)............................... 9 EEOC v. Ford Motor Co., ____ US ____, 73 L. Ed. 2d 721 (1982)....................................... 19 Fuililove v. Klutznick, 448 US 448 (1980).................. 11, 17, 24 Furnco Construction Corp. v. Waters, 438 US 567 (1978)......................................................... 8, 15, 16, 17, 19 General Building Contractors v. Pennsylvania,____US ____, 73 L. Ed. 2d 835 (1982) . . . . . . . . . . . . . . . . . 14 Griggs v. Duke Power Co., 401 US 424 (1971) . . . . . . . 4 ,15,16 Hampton v. Mow Sun Wong, 426 US 88 (1976)................ 11 Hills v. Gatreaux, 425 US 284 (1976) ................................... 11 Hurd v. Hodge, 334 US 24 (1948) 12 vn. Page International Brotherhood of Teamsters v. United States, 431 US 324 (1977)............ .......................... .. 24 Los Angeles Department of Water & Power v. Manhart, 435 US 702 (1978).......... 16 Loving v. Virgina, 388 US 1 (1967) ..................................... 17 McDonald v. Sante Fe Trail Transportation Co., 427 US 273 (1976)............................ 15 McDonnell Douglas Corp. v. Green, 411 US 792(1973) .. 15 Milliken v. Bradley, 418 US 717 (1974) ............................... 14 Milliken v. Bradley, 433 US 267 (1977) ........................... 9 Personnel Administrator of Massachusetts v. Feeney, 442 US 256 (1979)........ ........................ ...................... .. 17 Pullman-Standard v. Swint, 456 US 273 (1982)................ 12, 15 Regents of the University of California v. Bakke, 438 US 265 (1978).................... .. 8, 9, 10, 11, 12, 14, 15, 16, 17 Reiter v. Sonotone Corp., 442 US 330 (1979) ............... 11 Shelley v. Kraemer, 334 US 1 (1948) . . . . . . . . . . . . . . . . . . 12 Swann v. Charlotte-Mecklenburg Board of Education, 402 US 1(1971)............ ............................................ 14 System Federation No. 91 v. Wright, 364 US 642 (1961).. 11 Texas Department of Community Affairs v. Burdine, 450 US 248 (1981)....................................................... 13 United States Steelworkers v. Weber, 443 US 193 (1979)................ .................................................... 10, 11, 12 W. R. Grace & Co. v. Local 759 ------U S --------, 76 L. Ed. 2d 298 (1983) ..................................... 9> 14 United States Courts o f Appeals: Guardians Association of New York City Police Depart ment, Inc. v. Civil Service Commission, 630 F 2d 79 (2nd Cir., 1980) cert. den. 452 US 940 (198!) .. 13 Kirkland v. New York State Department of Correctional Services, 520 F 2d 420 (2nd Cir., 1975) cert. den. 429 US 823 (1976)............................................... • • • 23 Memphis Fire Department v. Stotts, 679 F 2d 541 (6th Cir., 1982) cert, granted____U S -------, 77 L. Ed. 2d 1331 (1983).......................................................... 14, 19 United States v. City of Miami, 614 F 2d 1322 (5th Cir. 1980) a ff’d in part and rev’d in part 664 F 2d 435 (1981) (en banc)............................................. .. • • • 9, 23, 24 United States District Court: Bushey v. New York State Civil Service Commission, 82 CIV 1219 (Slip Op., NDNY, October 4, 1983)............ .. 10, 16, 18 New York State Courts: Barlow v. Berry, 245 NY 500 (1927)........ .................... 23 Barlow v. Craig, 210 App. Div. 716 (1st Dept., 1924) . . . . 23 IX. Page Broidrick v. Lindsay, 39 NY 2d 641 (1976)........................ 21 Burke v. Sugarman, 35 NY 2d 39 (1974) . . . . . . . . . . . . . . . 21 Cassidy v. Municipal Civil Service Commission, 37NY 2d 526(1975)..................................................... 21 Frick v. Bahou, 56 NY 2d 777 (1982).......... .................... 20, 23 Fullilove v. Beame, 48 NY 2d 376 (1979) ........ 21 Katz v. Hoberman, 28 NY 2d 530 (1971)........ ................ 21 Petrocelli v. McGoldrick, 288 NY 25 (1942) ................... 20 Metzger v. Nassau County Civil Service Commission, 54 AD 2d 565 (2nd Dept., 1976).................... .............. 21 Ruddy v. Connelie, 61 AD 2d 372 (3rd Dept., 1978).......... 21 Schuyler v. Department of Personnel, 39 NY 2d 851 (1976) a ff’g 47 AD 2d 948 (2nd Dept., 1975)........ 21, 23 Subcontractors Trade Ass’n v. K och ,____AD 2 d ____ (1st Dept., 1983).............. ........................................ 21 STATUTES: U nited States C onstitution: Fifth A m endm ent ................ ................. .. 2 Fourteenth A m en d m en t......... ........................ 2 X. Page 42 U .S .C . §2000-e-2(h), 2]OOe-4, 5 . . . . . . . . . 2, 11, 16, 19 Federal Rules o f Civil P rocedure 24 .............. ............... 2 New Y ork State C onstitu tion, Article Y, Section 6 . . 2, 20 New Y ork Civil Service Law: § 5 0 . ............................................................... .............2, 20 §51. ....................... .......................................... ...........2, 20 §52................................................................... .. 2, 20 §56................................... 2 § 6 0 . .................................................. ................. .. 2, 20 §61 .................................... ...................................... 2 , 20 §95 ................................................... 2 ,2 1 ,2 2 ,2 3 New Y ork Civil Service Rules and Regulations 4 NYCRR: §3.6 .............................................................................2, 20 §4.2 (a ).................................... ................... ...............2, 20 SUPREME COURT OF THE UNITED STATES O ctober T e r m , 1983. ------- ---------- • ------------------ F red erick E. A l th iser , et al., Petitioners, V N ew York Sta te D epa r tm en t o f C o rrectio n a l Serv ices , et al., Respondents. ----------------------------- -— ® _ --------------------------------- Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit. Opinions Below. The June 8, 1983 opinion of the Court of Appeals is reported at 711 F 2d 1117 and is appended hereto as Appendix “ A .” The July 27, 1983 order of the Court of Appeals denying the petition for rehearing is appended hereto as Appendix “ B .” The December 1, 1982 opinion of the District Court is reported at 552 F. Supp. 667 and is appended hereto as Appen dix “ C .” The November 9, 1982 order of the District Court is append ed hereto as Appendix “ D .” The September 29, 1982 oral ruling by the District Court granting limited intervention is not officially reported. The transcript is appended hereto as Appendix “ E .” 2 Jurisdiction. The Court of Appeals entered judgment on June 8, 1983 and denied petitioners’ application for rehearing on July 27, 1983. Jurisdiction is conferred on this Court by 28 USC §1254(1). Constitutional Provisions, Acts, Statutes and Mules and Regulations Involved. United States Constitution, Fifth and Fourteenth Amend ments; 42 U.S.C. §§20Q0e-2(h); 2QQ0e-4, 5 (1976 and Supp. IV 1980); Fed. R. Civ. P. 24; New York State Constitution Article V, §6; New York Civil Service Law §§50, 51, 52, 56, 60, 61, 95; New York Civil Service Rules and Regulations 4 NYCRR §§3.6 and 4.2(a). These are set out seriatim in Appendix G. Statement of the Case. Introduction. Petitioners, white civil service employees averaging 16 years of service, file this petition because the State has agreed with minorities to grant minorities a racial preference by lowering petitioners’ test-based standing on and order of appointment from a civil service eligible list so as to guarantee minorities a preference and numerical equality of results as contrasted to equality of opportunity. The sole basis for the State action was statistically disparate results at some of the grading levels of the test. The State traded away what it did not own, petitioners’ constitutional rights and earned promotional opportunity. The Courts below, without seeing the test, approved the scheme and denied petitioners prejudiced thereby the right to defend their earned places on the list. Facts. Respondent State Civil Service Commission administered a civil service test for promotion to Correction Lieutenant on Oc- 3 tober 3, 1981. The test consisted of 60 questions. The number of questions answered correctly constituted a candidate’s “ raw score,” to which 31 points were added. The total constituted the “ adjusted test score.” Seniority and veterans credits were then added and the result was the final “ rating,” with a potential maximum of 100. Final ratings were broken down to the nearest half-point. On December 23, 1981 and pursuant to state law, a rank- order eligible list of 672 persons was established based on each person’s final “ rating.” “ Rank” on the eligible list was deter mined by the final rating with ties at each half-point level broken pursuant to a neutral scramble system. Minorities con stituted 22% of the eligible list, approximately the same as the minority representation in the original pool of all candidates tested. No disproportionate racial impact existed at the pass/fail barrier. The percentage of minorities in the candidate pool (22%) was not equally reflected at each grading level of the test, as shown by the following table: Raw Score Grading Level Percent Minority On January 15, 1982, plaintiffs sued alleging that defendants discriminated against them in preparing and administering the test and in promulgating the eligible list in violation of inter alia 42 USC §§2000e to 2000e-17 (1976 and Supp. IV 1980). At that time they moved to enjoin use of the list pendente life. 1 The mo tion was denied. In February, 1982, plaintiffs again unsuc cessfully sought a preliminary injunction. In opposition, the State submitted extensive evidence in defense of the test detail- Tht factual inquiry herein is limited to a challenge to one promo tional examination. Allegations of past discrimination raised by the complaint were not pursued, were not the basis of the settlement agreement and are not involved. 50-54 48-49 45-47 43-44 39-42 7.9% 10. 1% 20.8% 26.0% 33.8% 4 ing the steps taken to insure that it was job-related. The proof shows that the examining authorities were fully cognizant of their duty under the Federal Civil Rights statutes to prepare a job-related “ professionally developed ability test” and had made extensive efforts to fulfill that duty so as to withstand any legal challenge to the test. The record is replete with proof that the test was prepared by testing experts who utilized reports from and meetings with minority and white subject matter ex perts in developing the test.2 The State, throughout, denied all of plaintiffs’ allegations of discrimination, and their counsel certified that the test was a properly validated job-related test. On August 20, 1982 respondents submitted for Court ap proval a settlement agreement in which the State denies that it had prepared or administered a discriminatory test or in any way discriminated against minorities.3 The agreement specific ally provided that both the plaintiffs and the State agreed that the settlement did not constitute an admission, either express or implied, of discrimination (5f, 112).* In addition, by using the test results as a basis for their appointment scheme, both 2The test has never been seen by the courts; however, the respondents have never suggested that the test was a mere general in telligence test such as those invalidated in Griggs v. Duke Power Co., 401 US 424 (1971). Petitioners submitted their own uncontradicted af fidavits showing the contrary. ’Respondents assert that the settlement agreement was the pro duct of arms length negotiations. However, it was revealed for the first time during proceedings before the Court of Appeals that the respondents began settlement talks immediately after the action was commenced, and, in fact, had committed the substantive provisions of the settlement agreement to writing and had exchanged the same be tween themselves within ten days of the filing of the action, before the answer and before the State’s successful opposition to the plaintiffs’ motion for a preliminary injunction. Such facts raise serious questions about the motivations of the State. Nowhere in the record does the State assert that the test cannot be successfully defended. The record shows only that some State officials decided not to defend the test. The procedure of the courts below has effectively denied petitioners, the parties negatively impacted, all review of that decision and all op portunity to defend the test and their rights. See also, n. 7, 14 and ac companying test infra. ♦Numbers and letters in parentheses refer to page numbers of a par ticular appendix appended thereto. 5 acknowledged that the test was a valid measure of differen tiating between the qualifications of candidates. The agreement provides that all who passed the test, in cluding those already appointed, would be grouped into three “ zones” based upon test performance as follows: Zone Final Rating Score Range Rank Range All candidates scoring within a single zone are “ deemed” to be of equal fitness and will be ranked within their zone by random selection. Appointments will be made first to all candidates in the highest unexhausted zone. Minorities in the zone will be appointed first until the total number of minority appointees to that date equals 21%. Thereafter appointments will be made on a 4-to-l ratio in each zone.4 “The agreement grants immediate preference to 32 minorities {Kid institutes a 4-to-l hiring ratio thereafter. The courts below were made aware of the dramatic practical impact of this scheme by the example of some white candidates, with a final rating of 82 who, under the original method, would stand between 248 and 283 on the eligible list but under the new scheme would rank between 500 and 525 with a consequent delay of two or more years in their time of appointment. The events since Court approval of the agreement bear this out. The District Court order became effective on November 9,1982. All 32 im mediately preferred minorities were appointed as positions became available, the last on July 7, 1983. At the very least, the agreement ap proved by the court below cost certain petitioners eight months of seniority benefits and eight months of the greater salary and emoluments that accompany employment at the higher rank. That loss especially the irretrievable, relative time in title seniority loss, im pacts petitioners careers greatly; yet that is the minimum cost of the agreement to the petitioners. For those who, pursuant to the Court order, stood to be reranked from between 248 and 283 to between 500 and 520 the effect can be devastating to their careers as the delay in ap pointment can be years; the loss of seniority, salary and further pro motional opportunity caused by such delay is immeasurable. Further illustrating the effect of the agreement is the fact that as of October 18. 1983 no white eligible below the rank of 311 had been (Continued on following page) 1 2 3 82.5 + 78.0-82.0 73.5-77.5 248-525 526-672 1-247 6 Notice of settlement was sent to each unappointed eligible. Each of the 170 petitioners, many of whom had served as provi sional Lieutenants, submitted affidavits stating that they were familiar with the knowledge, skills and abilities required of and used in the position of Correction Lieutenants and that they found all the test questions to be related to and a measure of such duties, requirements, knowledge, skills and abilities. They (Footnote continued) appointed whereas minorities as low as 497 had received appointment. Many of the petitioners who would be enjoying the benefits of the promotion but for the racial preference must wait for the agreement to run its course. As of October 18, 1983 approximately 70% of the peti tioners remain unappointed. The respondents agreement assures that these career civil servants will suffer injury to their careers for years to come. Along these lines it is important to point out that the language of the agreement is vague as to the order of appointments of whites vis-a- vis whites and minorities vis-a-vis minorities within each zone. One of the respondents’ criticisms of the eligible list and the theoretical basis for the institution of “ zone” scoring was that the test could not distinguish between candidates with half point precision. The Courts below stated that there would be random selection within each zone and a re-ranking of all candidates within the zones to remedy what the respondents claimed to be the discriminatory effects of the rank order system. However, both respondents indicated to the District Court that the original rank order system would be used within each race within each zone so that there would be no re-ranking of whites vis-a-vis whites or minorities vis-a-vis minorities. The State submitted af fidavits explaining that the old rank order would be utilized within each race within each zone. It is understood that the state has made the appointments in the original rank order as modified by the minor ity preference. Thus, the Courts below approved a settlement different than that to which the respondents agreed and different than that to which respondents have adhered. Petitioners submit that to re-rank whites vis-a-vis whites and minorities vis-a-vis minorities is unnecessary and even assuming arguendo that there was racial discrimination, no racial justification exists for such re-ranking and the unlawfully excessive intrusion on the rights of whites vis-a-vis whites. The respondents’ persistence in maintaining the rank order system is not without significance.lt is further indication that they believe the test to be a sufficiently valid selection device to differen tiate between candidates at the half point scores. The actual workings of the respondents’ agreement reflect the respondents’ recognition of the validity of the test and rank order eligible list as a selection device as well as the failure of the Court of Appeals to deal with the terms of the agreement actually before it. 7 also stated that the test was an accurate predictor of job perfor mance. At a September 29, 1982 “ hearing” on the objections peti tioners moved for intervention. The District Court ruled from the bench that “ the interveners are permitted to intervene for the sole purpose of objecting to the settlement . . (4e).5 The State advised the Court that it had no interest in which of the qualified eligibles were appointed. Calling them “ fungible” . The expressed position of the State was simply that it “ need not expend public funds for litigation . . .” (3f, 16). The practical effect of the State’s action was a realignment of the parties. Petitioners were in the position of having to assert that the ranks which they earned on the list by virtue of the test were rightfully earned. In the normal course of events if the test were found to be valid, petitioners would retain their rank-ordered position on the list, as had those who were appointed prior to the agreement. If, on the other hand, the test were not valid, some remedy congruent with the extent of the wrong would be called for. Petitioners repeatedly sought judicial review of the State’s racial classification. The Courts below, however, were unwilling to allow the very subject of the lawsuit, the test, to become the subject of inquiry. THE COURTS NEVER SA W THE TEST. The ultimate issue of discrimination vel non was never reached. Rather than con sider whether the test was a valid job-related “ professionally developed ability test” (42 USC §2000e(h)), the Courts limited inquiry to whether the agreement was reasonable in light of the test results and the allegations of the complaint. The Court’s approval of the State’s racial classification and its refusal to allow inquiry into the question of the validity of the test was based solely upon the respondents’ showing that the percentage of minorities in the applicant pool was not equally reflected at each grading level of the test. This, the Courts held, constituted “ an existing condition which can serve as the proper basis for the creation of race-conscious remedies” (21a). ’Additional court sessions were held on October 4 and 14, 1982. Although denominated as hearings, all court sessions were confined to legal agrument. No proof was taken. 8 REASONS FOR GRANTING THE WRIT. I. This case is important as it allowed a State to establish a racial classification depriving innocent and objecting career employees of promotional opportunity upon a mere un substantiated claim of discrimination. The Court of Appeals has decided important questions of federal statutory and constitutional law which have not been, but should be, decided by this Court. The questions concern the standards for compromise by public employers of employment discrimination cases, the rights of the public employees prej udiced thereby and the extent of judicial remedial authority under both Title VII and the Constitution. These questions are important not only because of the frequency with which Courts are being asked to approve such class action settlements and the vast number of public employees whose individual rights are be ing affected thereby, but also because they call for definition of the line between permissible court ordered affirmative relief under Title VII and impermissible State action under the equal protection clause of the United States Constitution and Title VII. The decision below is in conflict with the decisions of this Court; it approves an agreement between a State and the members of one racial group to prefer that group in promotions in the State’s civil service without allowing inquiry into or proof or adjudication in any legislative, administrative or judicial forum of the existence of a constitutional or statutory violation. Instead, the Court’s approval rests upon a finding of “ a prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact” (24a). Ignored was this Court’s holding that a “prima facie showing is not the equivalent of a factual finding of discrimination . . .” , Furnco Construction Corp. v. Waters, 438 US 567, 579 (1978), and that this Court has ‘‘never approved, a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative or administrative findings of con stitutional or statutory violations.” (Citations omitted) Regents 9 o f the University o f California v. Bakke (“ .Bakke” ), 438 US 265, 307 (1978). There has been no finding by an “ appropriate governmental authority . . . that such a violation has occurred.” Fullilove v. Klutznick, 448 US 448, 498 (1980) (Powell, J., con curring). The political judgment of State officials not to “ ex pend public funds for litigation * * *” (3f, 16) does not con stitute such a finding, Bakke, supra, 438 US at 307-310, see also, Fullilove v. Beame, 48 NY 2d 376 (1979), and does not constitute a compelling State interest. Connecticut v. Teal, 457 US 440 (1982); Milliken v. Bradley, 433 US 267 (1977). On the facts herein the State does not have a compelling interest in creating a race-conscious remedy and no proof of discrimina tion of has been offered. To the contrary, the agreement con tains not only the State’s denial of unlawful discrimination (3f. 15) but also agreement by both the plaintiffs and the State that the stipulation does not constitute “ an'admission, express or implied, by said defendants of any violation, adjudication or finding with respect to any federal,, state or local statute, rule, regulation or order or the Fourteenth Amendment” (5f, 112). The agreement which provides the sole basis for the action of the Courts below, on its face, negates the existence of any legal basis for a race-conscious remedy. The Court of Appeals has approved impermissible racial preference, not permissible remedial State action. See generally, Bakke, supra, 438 US at 306-10 (1978).6 Under the decision below, a state may grant a racial preference in promotion to minority test takers, reserve a por tion of available promotions to those minorities and displace ‘The Courts below emphasized the policy favoring voluntary compliance with Title VII implying that such policy somehow lessened or detracted from the substantive rights of the petitioners. In this con nection the remarks of Judge Gee of the Fifth Circuit in which ten other judges of that Court joined are particularly apposite. “And while it is well and very well to extoll the virtues of concluding Title VII litigation by consent, as do our brethren—a sentiment in which we concur—we think it quite another to approve ramming a settlement between two con senting parties down the throat of a third and protesting one, leaving it bound without trial to an agreement to which it did not subscribe. United States v. City o f Miami, 644 F 2d 435, 451-52 (1981) (en banc) (Gee. J., concurring in part and dissenting in part). See also W. R, Grace & Co. v. Local 759 ___ U S____ 76 L.Ed 2d 298 (1983). 10 whites with higher test scores, all in the absence of any showing of unlawful discrimination. The Courts have sheltered the State’s action by prohibiting those prejudiced by the agreement from effectively litigating what this Court has termed the “ ultimate question of discrimination vel non,” Aikens v. United States Postal Serv .,____U S ____ , 51 USLW 4354, 4355 (1983). The ruling portends promotional decisions being made on the basis of class-wide statistics of racial and ethnic composi tion rather than upon individual merit as is required by State Law.7 As a basis for its determination that “ [n]either Title VII nor the Constitution prohibits compromise agreements implement ing race-conscious remedies which are agreed to prior to a judicial determination on the merits” (23a), the Court of Ap peals relied upon United Steelworkers v. Weber (“ Weber”), 443 US 193, 207-08 (1979) (Title VII) and Bakke, supra, 438 US at 301-02 & n.41 (Fourteenth Amendment). These authorities were incorrectly applied and misconstrued. Weber determined only “ whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan.” Weber, supra, 443 US at 200. No constitutional ques tions were presented, and this Court was “ not concerned with ’Contemporaneous events lend justification to this concern. In January, 1982, the State administered a test for Correction Captain, which it later averred was in all respects a valid, job-related “ profes sionally developed ability test.” However, without notice, the State altered the test scores by granting a racial preference and in Sep tember, 1982, promulgated an “ eligibility list” using artificially in flated minority test scores and passing minorities who failed to achieve “ statistical balance,” in other words, equal test results. This secret racial preference in scoring came to light only when white candidates demanded to examine the test results and scoring methods. Regardless of its motiviation, the State voluntarily engaged in an unlawful racial classification elsewhere on the promotion ladder in the Department of Correctional Services. The United States District Court for the North ern District of New York has recently so held, Bushey v. New York State Civil Service Commission, 82 CIV 1219 (Slip Op., NDNY, Oc tober 4, 1983). The concealment of its grant of a racial bonus in Bushey can be likened to the State’s adamant and strenuous objec tions to allowing the challenged examination to be made a part of the record herein. 11 . . . what a court might order to remedy a past proved violation of the act.” Weber, supra, 443 US at 200. Weber simply does not touch upon the questions raised herein.8 The Court’s reliance upon Bakke, supra, 438 US at 302 n.41, for the proposition that a public entity may enter into a settle ment agreement which implements a race-conscious remedy without a finding of unlawful discrimination is misplaced. Foot note 41 is dictum and approves only “ congressionally author ized administrative actions.” Id. (Emphasis supplied). The ac tions to which the note refers are those of a federal agency, the E.E.O.C., which is charged by Congress with the duty of detect ing violations of Title VII and formulating remedies. 42 USC §§2000e-4, 5. That situation presents different questions than here where there is an agreement between state officials and one racial group to provide preference in promotional practices to that group. Bakke, supra, 438 US at 309-10; Hampton v. Mow Sun Wong, 426 US 88, 103 (1976); Fullilove v. Klutznick, supra, 448 US at 497-502 (Powell, J., concurring). Further, the inquiry here is limited to one particular promotional examination, not “ the various indicia of previous constitutional or statutory violations.” Even if the note is in some part applicable, further elaboration thereupon is necessary to provide guidance for the large and increasing number of individual rights affected by consent decrees. "This case also presents important questions going to the scope of judicial remedial authority under Section 706(g) and the Constitution and the authority of a court to approve and enforce the settlement agreement. This cannot be discussed in depth in this petition, but a brief summary of the argument follows. Section 706(g) prohibits Courts from ordering “ promotion of an individual as an employee...for any reason other than discrimination...” . No distinction is made between judgments entered after litigation and consent decrees. System Federation No. 91 v. Wright, 364 US 642 (1961). The language of the statute is the “ starting point” in its interpretation. Reiter v. Sonotone Corp., 442 US 330, 337 (1979) and here the statute proscribes a court order for any pur pose other than to remedy discrimination. The House Judiciary Committee’s original version of Section 706(g) prohibited the courts from ordering affirmative relief for anyone who was refused employment for “cause”. An amendment was introduced by Congressman Celler, Chairman of the Judiciary (Continued on following page) 12 The State has made a political judgment as to how it will pro mote individuals in its civil service. Since that judgment “ touch[es] upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background.” Bakke, supra, 438 US at 299. The Courts below simply repudiated the constitu tional guarantee. Section 703(h) insulates the results of a job-related pro fessionally developed ability test from being adjudged discriminatory because of mere disparate results. Disparate im pact alone is insufficient to establish a violation of Title VII. Bakke, supra, 438 US at 307-09 & n.44. In addressing Section 703(h), the very section at issue herein, this Court recently held that a showing of disparate impact was insufficient to invalidate a seniority system. Pullman-Standard v. Swint, 456 US 273, 277 (1982). Nevertheless, the Court below, without reviewing the test, found that a showing of disparate impact was sufficient to invalidate the eligible list compiled on the basis of a “ profes sionally developed ability test” protected by section 703(h). In so finding, the Court relied upon the statistical showing of a (Footnote continued) Committee, to make explicit the limit upon the Courts’ remedial authority. “ Cause” was replaced by the phrase “any reason other than discrimination on account o f race...” so that only victims of discrimination would be afforded affirmative relief. See, 110 Cong. Rec. 2467 (1964). See, also id. at 1518. For the remarks of Senate whips Humphrey and Kuchel all to the effect that the power of the courts is limited to ordering an end to discrimination that is in fact oc curring. See e.g. id. 6549, 6563. The legislative history and the statute are clear; Title VII relief can only be granted upon a showing of actual discrimination and only victims of the discrimination can benefit from affirmative relief. Only unlawful discrimination can be remedied and it must be proved. The judicial authority to enforce this settlement agreement is fur ther limited by constitutional principles. Racially based promotional agreements cannot be enforced by the federal courts. Hurd v. Hodge, 334 US 24 (1948); Shelley v. Kraemer, 334 US 1 (1948). Weber is not to the contrary. 13 prima facie case,9 the sample pattern of proof recently reiterated in Texas Department o f Community Affairs v. Burdine, 450 US 248 (1981) and its own decision in Guardians Association o f New York City Police Department, Inc. v. Civil Service Com mission, 630 F 2d 79 (2nd Cir., 1980) cert. den. 452 US 940 (1981) for the proposition that a statistical showing of adverse impact creates a “ presumption of Title VII discrimination.” Id. at 88. The Court then held that the State’s “ entrance into a com promise without rebutting an established prima facie case amounts to an admission of unlawful discrimination for pur poses of Title V II.” (25a) The reasoning is contrary to the deci sions of this Court and the language in the agreement that ‘f t] he consent o f the defendants to this Stipulation shall in no way be construed as an admission, express or implied, by said defendants o f any violation, adjudication or finding, with respect to any federal, state or local statute, rule, regulation or order, or the Fourteenth Amendment.” (5f, fl2 ) The Court below was aware that proof of actual discrimination and not statistical disparity alone, was necessary before race-conscious relief could be imposed. Finding no such proof in the record, the Court accorded exagerated weight to the policy favoring set tlement of Title VII cases, in effect, excised the quoted language from the agreement, and created a fiction regarding the terms of the State’s compromise agreement. As a result the State was permitted to trade away what it did not own, petitioners’ con stitutional rights and earned seniority benefits add promotional ’The prima facie finding does not result from any discrepancy at the pass/fail barrier, but consists only of the fact that the percentage of minorities in the applicant pool was not equally reflected at each grading level of the test. Such statistical disparity is entitled to far less weight than that given to a large disparity at the pass/fail barrier. The test did not act as an artificial barrier to employment opportunity. 14 opportunity without setting forth a compelling for such action.10 The Court below was without authority to ignore and distort the agreement presented by both parties for approval. The Court addressed the problem presented by the conflict between its finding of an admission of discrimination and the express disclaimer that the agreement constituted such an admission by simply copying a footnote from Memphis Fire Department v. Stotts, 679 F 2d 541, 553 n.10 (6th Cir., 1982) cert, granted, ------U S-------, 77 L Ed 2d 1331 (1983). The Court stated: “ [W]e construe the disclaimers to be admissions that there is a statistical disparity together with a reservation of the right to ex plain it in the future” (citation omitted) (25a, n.16). The con struction of the disclaimers as anything more than admissions of ‘‘statistical disparity” is baseless and should not be permitted to diminish petitioners’ rights. Other than the fiction created by the Court of Appeals, all that was ever before the Courts below was unexplained statistical disparity.11 10Even in situations where the employer is not a governmental en tity and the equal protection clause does not govern its employment decisions, this Court has held that an employer cannot lawfully trade away the collectively bargained earned seniority rights of its white employees to obtain settlement of a Title VII case with the E.E.O.C. W. R. Grace & Co. v. Local 759,___ U S____ , 76 L. Ed. 2d 298 (1983). The reasoning of this Court should apply with greater force in this case. Here the employer has used as its sole “bargaining chip” not only the white employees employment rights but also, their constitu tional rights under the equal protection clause. |'The relief granted is not only inconsistent with the denials of discrimination, but such denials mean that the relief that is imposed is more than which is necessary to remedy the wrong. This court has always required that in cases such as this the remedy be carefully tailored so that it is congruent with the wrong. Relief that exceeds this purpose is unconstitutional. See generally, General Building Contrac tors v. Pennsylvania,___ US___ 73 L.Ed 2d 835 (1982); Regents o f the University o f California v. Bakke, supra, 438 US at 299; Hills v. Gatreaux, 425 US 284, 293-94 (1976); Milliken v. Bradley, 418 US 717, 738, 744 (1974); Swann v. Charlotte-Mecklenburg Board o f Education, 402 US 1, 16 (1971). 15 The Court of Appeals rejected petitioners’ contention that statistical disparity alone is an insufficient predicate for the im position of a promotional scheme that prefers minorities and trammels the legitimate interests of the petitioners. This is error as decisions of this Court require some proven statutory or con stitutional violation to remedy prior to the imposition of a race- conscious remedy. Otherwise, it is not a remedy at all but rather impermissible racial discrimination. Without the requisite find ing of discrimination “ it cannot be said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compell ing justification for inflicting such harm [upon petitioners].” Bakke, supra, 438 US at 309. There is no basis for a finding of discrimination here. Instead of considering the constitutional and statutory rights of petitioners, the Court of Appeals utilized the “ sample pat tern of proof,” McDonald v. Santa Fe Trail Transportation Co., A ll US 273, 279 n.6 (1976), to abrogate those rights. This was error. The “ sample pattern of proof” was “ never intended to be rigid, mechanized or ritualistic [but] merely a sensible, orderly way to evaluate the evidence in light of common ex perience as it bears on the critical question of discrimination,” Furnco Construction Corp. v. Waters, supra, 438 US at 577 (1978). The “ specification . . . of the prima facie proof required . . . is not necessarily applicable in every respect to differing fac tual situations.” McDonald v. Santa Fe Trail Transportation Co., supra, A ll US at 279, n. 6 (1976); McDonnell Douglas Corp. v. Green, 411 US 792, 802 n. 13 (1973). The pattern of proof applied by the Court below was inappropriate for the facts of this case. Approval of a “ remedy” based upon the State’s failure to come forward in turn pursuant to the “ sample pattern of proof,” resulted in a determination that impact alone could form the basis for the race-conscious “ remedy.” This “ impact alone” analysis has been explicitly rejected, Pullman-Standard v. Swint, supra, Bakke, supra, 438 US at 308, n.44, but the Court of Appeals held that Griggs v. Duke Power Co., 401 US 16 424 (1971) compelled such result.12 (23a). It ignored the rule that “ [e]ven a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply and this Court has never held that discrimination must always be inferred from such consequences.” Los Angeles Department o f Water & Power v. Manhart, supra, 435 IJS at 710 n.20. Likewise, it ignored the rules that a “prima facie showing is not the equivalent of a factual finding of discrimina tion,” Furnco Construction Corp. v. Waters, supra, 438 US at 579, and that an adjudication of discrimination is a constitu tional prerequisite to the imposition of a race-conscious remedy that trammels the interests of innocent third parties. Bakke, supra, 438 US at 307-10.13 More important the Court below ignored that what the State had done was to voluntarily agree to make a racial classification without any proof of justification or any compelling State in terest. Had the State acted unilaterally or by agreement with the plaintiffs before commencement of suit the courts, on the facts in the record, would have set the agreement aside in an action by petitioners Bushey v. New York State Civil Service Commis sion, 82 Civ 1219 (Slip Op., N.D.N.Y. October 4, 1983). The mere fact that plaintiffs and not the petitioners paid the filing fee does not change the substantive rights of the parties or add to the power of the State or the Court. The Court of Appeals’ approval of the racial classification flies in the face of the teachings of this Court that ‘‘[a] racial classification, regardless of purported motivation, is presump- llGriggs did not involve equal protection or the standard of proof to be applied when the employer was a governmental entity refusing to defend its tests, or whether innocent whites who were “ bumped” could defend the test when the State refused or even whether such whites were entitled to judicial review of the State’s action. 1’There is no proof of discrimination except for the Court of Ap peals’ erroneous interpretation of the stipulation. The express provi sion that the settlement was not an admission of discrimination and everything else in the record demonstrates that the test was a valid, job-related “ professionally developed ability test” within the meaning of Section 706(h). As set forth in the facts the State submitted exten sive proof regarding the preparation and administration of the test in opposition to plaintiffs’ applications for preliminary injunctive relief. Plaintiffs’ motions were unsuccessful. 17 lively invalid and can be upheld only upon extraordinary justification.” Personnel Administrator o f Massachusetts v. Feeney, 442 US 256, 272 (1979) No extraordinary justification for the presumptively invalid racial classification has been shown. Contrary to the presumption in the pattern of proof ap plied by the Court below, the constitutionally presumptive in validity of the State’s action requires the State to justify its racial classification.14 The Court below ignored the presumptive invalidity of the racial classification and the requirement that the State set forth “ extraordinary justification” for its unequal treatment of peti tioners and accepted as justification the State’s decision not to defend the test. The construction given to the agreed disclaimers of any admission of unlawful discrimination as constituting “ admissions that there is a statistical disparity together with “ a reservation o f the right to explain it in the future’’ ’ (emphasis supplied) (25a, n. 16) ignores the fact that the State does not “The presumption against racial classifications, Personnel Ad ministrator o f Massachusetts v. Feeney, supra, 442 US at 272, is deeply rooted in our law and reflects predominant and fundamental constitu tional principles. See, e.g., Loving v. Virginia, 388 US 1 (1967). On the other hand, the presumption set forth in the “ sample pattern of proof” is “ merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, supra, 438 US at 577. To the extent that the procedural presumption in the pat tern of proof conflicts with the presumptive invalidity of racial classifications the presumption that racial classifications are invalid controls. The presumption “grounded in a predominant social policy [should be applied]” . McCormick Evidence, §312 at 653 (1954); See, also, Weinstein’s Evidence, 1301 [04] at 301-48-49, n.4. (“ Rule 15 of the Uniform Rules of Evidence provides ‘If two presumptions arise which are conflicting with each other, the judge shall apply the presumption which is founded on the weightier considerations of policy and logic. If there is no such preponderance, both presump tions shall be disregarded.’)...” Id. Here, the sample pattern of proof used to infer discrimination in contested cases should give way to the presumptive illegality of the State’s action thereby requiring the State to come forward with proof to justify its racial classification. This is in line with the teachings of Bakke, supra and Fullilove v. Klutznick, supra, which require an adjudication of discrimination prior to per mitting the imposition of race-conscious remedies. Clearly, the pro cedural presumption allocating the burden of proof cannot govern the substantive rights affected by the settlement agreement. 18, have the power to reserve to itself the right to make racial classifications and justify them only when its political judgment so directs. The State cannot reserve its explanation for the racial classification for the future. All racial classifications must be supported by a showing of extraordinary justification. The Court below should have required the State to make such a showing. The State’s admission of statistical disparity is that and only that and is not an admission of discrimination. It does not constitute the requisite extraordinary justification. The decision below affords the State power, whenever minorities do not fare as well as whites on a competitive promo tion test, and whenever its political views so direct, to determine that minorities will be proportionately represented in its civil service regardless of ascertained merit.15 The decision denies prejudiced third parties judicial review of the test in question, participation in settlement discussions and judicial review of the racial classification. Here, since respondents committed the substantive provisions of the settlement to writing and ex changed the same within ten days of the filing of the complaint in this action, (See n.3, supra), it seems likely that the State’s decision not to defend the test was based on political views rather than careful review by the State of its rebuttal evidence.16 In this sensitive area, resolution of the ultimate issue of discrimination vel non should not be left to the unreviewed discretion of State administrators. The discrimination claimed by plaintiffs was never proven or admitted. To base the displacement of the petitioners’ rights and loss of seniority benefits and promotional opportunity upon a mere claim is con- l!The State, an employer of some 150,000 individuals, has made racially based changes to the results of other promotional examina tions and has relied on the decision herein to assert that the State need not wait to be sued before it can remedy the adverse racial impact of an examination. Although these racially based changes were rejected in Bushey v. New York State Civil Service Commission, 82 CIV 1219 (Slip Op., NDNY, October 4, 1983), the fundamental error of the State’s position and the decision below is that adverse impact is something to be remedied. It is not. Discrimination is the wrong to be remedied. Unless there is some proven discrimination, there is no wrong to remedy and racially based promotional decisions are imper missible racial preference, not permissible remedial actions. “See note 7 supra. 19 trary to EEOC v. Ford M otor C o .,____U S ____ 73 L. Ed. 2d 721, 738 (1982). The State’s choice not to contest the claim is far different than proven discrimination. Furnco Construction Corp. v. Waters, supra, 438 US at 579. Absent adjudication of discrimination, implementation of class-based preferential relief and the imposition of a minority hiring ratio is prohibited. The Courts below erred in approving this “ race conscious remedy” , the entire burden of which will be borne by the petitioners who are prepared to defend it and prove the test’s validity. II. The issues in this case are similar to those in a case now pending before this Court, and the case at bar should be heard as well. This Court has granted Certiorari in Memphis Fire Depart ment v. Stotts, 679 F 2d 541 (6th Cir., 1982) cert, granted------ U S____, 77 L. Ed. 2d 1331 (1983) which present the question of whether a District Court has the authority to modify a consent decree between a public entity and minority plaintiffs by enjoin ing a seniority based layoff system and substituting a system based upon racial considerations absent any adjudication of discrimination by either the public entity or the union. The similarity between Stotts and this case was recognized by the Court below as is shown by its reliance upon and many cita tions to Stotts in its opinion, (See, e.g., 14a, 15a, 20a, n.14, 21a, 24a & 24a n.15, 25a, n.16), and its borrowing of logic from Stotts. No adjudication of discrimination was made in either case. Both Courts of Appeals have placed a premium on insur ing minorities proportionate representation in public employ ment without inquiring into whether or not there is any basis for disturbing the established state law procedure: a seniority system in Stotts and a promotional examination eligibility list herein. Both cases present questions which go to the heart of Ti tle VII and the impact of Section 703(h)’s protection of bona fide seniority and merit systems and job-related professionally developed ability tests. 20 This Court has not yet established standards for initial Court approval of settlements containing race-conscious remedies which trammel the interests of non-minorities. As Stotts evidences, earlier consent decrees are now the subject of further litigation in part because of deficiences in those decrees. The Court is now called upon to review the steps taken to modify those decrees. Standards pronounced by this Court for such set tlement agreements and judicial approval thereof are urgently needed by the lower courts, public employers and the millions of public employees affected thereby. III. In determining the nature and scope o f petitioners’ rights, the C ourt o f A ppeals’ decision is in conflict with the decisions of the New Y ork A ppellate C ourts on matters of State Law. The Court below rejected the argument that the bumping of the petitioners from their positions on the eligible list without an opportunity to be heard constituted a deprivation of a property interest without due process of law. This determination is con trary to New York Law. Under Article V, Section 6 of the State Constitution merit and fitness ascertained by competitive ex amination is the required basis for civil service promotions. Implementing this mandate are State Statutes and the Rules and Regulations having the same force and effect. Petrocelli v. McGoldrick, 288 NY 25 (1942). The statutes provide for civil service tests, N.Y. Civ. Serv. L. §§50-52, certification of eligible lists, Id. §60, and appointments therefrom, Id. §61. The appointing authority’s discretion in making appoint ments is limited to choosing among the top three “ ranked” in dividuals on the eligible list. N.Y. Civ. Serv. L. §61(1). When two or more candidates receive identical final examination “ ratings,” the tie is broken by a “ uniform, impartial pro cedure.” 4 N.Y.C.R.R. §3.6 (formerly Section 3.5) and a numerical “ ranking,” 4 N.Y.C.R.R. §4.2, is obtained. The State is bound by its own rules and regulations regarding ex aminations and the scoring thereof, Frick v. Bahou, 56 NY 2d 21 111 (1982), and enjoys no power to appoint any person except according to said law, rules and regulations. N.Y. Civ. Serv. L. §95. While, under the rule of three, no one individual has a vested right to promotion by virtue of the promotional examination- list procedure, Cassidy v. Municipal Civil Service Commission, 37 NY 2d 526 (1975), “ each competitive civil servant does have the right to be promoted in accordance with his placement on the promotional list resulting from such an examination.” Schuyler v. Department o f Personnel, 39 NY 2d 851 (1976) a ff’g 47 AD 2d 948 (2nd Dept., 1975). The Court below relied upon Katz v. Hoberman, 28 NY 2d 530 (1971) and Metzger v. Nassau County Civil Service Com mission, 54 AD 2d 565 (2nd Dept., 1976) for the proposition that the State has discretion to choose and modify the pro cedures to determine merit and fitness (18-19a). Those cases in volve discretion in special circumstances and very limited areas having nothing to do with the area of minority preferences. The extent of the State’s discretion in the area of minority preference was clearly defined in Ruddy v. Connelie, 61 AD 2d 372 (3rd Dept., 1978). In Ruddy, the Court made clear that without a finding that the civil service test was invalid or that the minority preference was designed to correct past errors, the State has no power to adjust established appointment pro cedures and whites have standing to challenge the same. See also, Burke v. Sugarman, 35 NY 2d 39 (1974). Similar attempts by public entities in New York State to modify existing regulatory procedures have met with judicial disapproval. See Fullilove v. Beame, 48 NY 2d 376 (1979); Broidrick v. Lindsay, 39 NY 2d 641 (1976); Subcontractors Trade A ss’n v. K och,____ AD 2 d ____(1st Dept., 1983). Under New York Law the State has no right to modify the State Law promotional procedures.17 '’The appointing authority is required to appoint one of the top three candidates on the eligible list. N.Y. Civ. Serv. L. §61(1). Thus, while no one particular person has the right to promotion, the State is without authority to deny the promotion to more than two of the peti tioners. The practical effect is that the petitioners as a group have a legitimate expectation of appointment. 22 In addition, petitioners are third-party beneficiaries of the collective bargaining agreement between their union and the State which in Article 24 defines seniority as “ length of an employee’s uninterrupted service in title” (emphasis supplied) and provides that seniority is the basis for certain contract benefits. Article 24 also provides for announcement of all Lieutenant job vacancies and for job assignment on the basis of seniority when ability is equal. Since there are a limited number of Lieutenant posts, and those are at over 30 job locations scat tered across the state, even a few days difference in date of ap pointment can mean the difference between working at a desired location or moving hundreds of miles. Furthermore, seniority is critical for career advancement since a Lieutenant’s eligibility to sit for the test for Correction Captain and for pro motion to that job requires certain minimum periods of service as a Lieutenant. While promotional procedures are governed by rules, regula tions and statutes, Article 27 of the contract provides: “ With respect to matters not covered by this Agree ment, the Employer will not seek to diminish or impair during the term of this Agreement any benefit or privilege provided by law, rule or regulation for employees without prior notice to the Union and when appropriate, without negotiations with the Union pro vided, however, that this agreement be construed consis tent with the free exercise of rights reserved to the Employer by Article 6 of this Agreement.” No such notice was given to the union and no such negotiations were had. Article 31.1 of that contract provides inter alia “ Neither party will, during the term of this agreement seek to unilaterally modify its terms through legislation or other means which are available to them .” The State Law already discussed prohibits promotion of any person . . . except in accordance with the Civil Service Law and the rules and regulations established thereunder. N.Y. Civ. Serv. L. §95. 23 The Court below, ignoring the rule that all contract provi sions be given effect and harmonized, interpreted Article 6 and the last clause of Article 27.1 as emasculating and virtually repealing all of the rest of Article 27.1 and the above quoted portions of Article 31. It also ignored the interaction between the contract and the Civil Service Law and erroneously con cluded that the contract leaves “ unimpaired” the authority of the Civil Service Commission to choose and modify promotion procedures. As set forth above, however, the State does not have the right to make the adjustments made herein. N.Y. Civ. Serv. L. §95. The collective bargaining agreement therefore pro hibits the State from compromising of litigation without follow ing the procedures set forth therein or without some overriding constitutional or statutory basis therefor. No such showing has been made. The decision below is in conflict with firmly established State Law which forms a basis for determining the nature and extent of petitioners’ rights.18 Board o f Regents v. Roth, 408 US 564, 577-78 (1972). "The Court of Appeals’ decision is also in conflict with its own earlier decision interpreting the nature of white intervenors’ interest in similar litigation: “ The Courts of New York hold that one whose efforts secure him a position upon a civil service promotion list, ‘is entitled to consideration and protection in such position.’ (citing Barlow v. Craig, 210 App. Div. 716, 719 (1st Dept., 1924); Barlow v. Berry, 245 NY 500, 503 (1927).) Whether this be termed a right or a privilege is of no significance; con stitutional rights do not turn on such issues. “ So long as civil service remains the constitutionally mandated route to public employment in the State of New York, no one should be ‘bumped’ from a preferred position on the eligibility list solely because of his race.” Kirkland v. New York State Department o f Correctional Services, 520 F 2d 420, 429 (2nd Cir., 1975) cert. den. 429 US 823 (1976) {Kirkland I) The Court below then recognized that under New York Law a position on the eligible list was a protectable interest. Here, it points to no in tervening change in New York Law, but reverses of its earlier inter pretation thereof. The most significant decisions since Kirkland / in this area, Schuyler v. Department o f Personnel, supra, and Frick v. Bahou, supra, reinforce earlier cases and do not signify any change in state law. The principles announced in Kirkland /were adopted by the Fifth Circuit. See United States v. City o f Miami, 664 F2d 435, 447 (5th Cir., 1981) (en banc) 24 Based on its incorrect interpretation of New York Law, the Court below distinguished United States v. City o f Miami, 614 F 2d 1322 (5th Cir., 1980) a ff’d in part and rev’d in part 664 F 2d 435 (1981) (en banc). Had the Court below correctly applied State Law regarding petitioners’ protectable interests, it would have been obliged to follow City o f Miami, supra, or create an obvious irreconcilable conflict between the circuits. The Court below has erred in its interpretation of State Law. The underly ing conflict between the circuits exists and cannot be hidden by the strained interpretation of New York Law herein. Review is required. IV. The questions concerning the scope and nature of in tervention are intertwined with the questions going to the merits of the litigation and are exceedingly im portant. The Court of Appeals recognized that “ [(Questions relating to the scope and nature of intervention are attaining increasing importance in cases involving the approval of consent decrees or stipulations which, in settling employment discrimination suits, create race or sex-conscious hiring or promotional remedies that affect non-complaining employees. (Citations omitted).” (13a) The Court below affirming the mere limited intervention, held that petitioners did not have sufficient interest to permit them to offer proof to rebut the prima facie case. It failed to give ade quate consideration to the impairment of petitioners’ interests and the failure of the State to represent adequately those in terests in reaching its decision to settle. This Court has stated that whites enjoy legitimate ‘‘expecta tions of promotions and seniority that must be balanced against the interests of the minorities.” International Brotherhood o f Teamsters v. United States, 431 US 324, 375-76 (1977) and has rejected suggestions that whites have no legally relevant interest in an action challenging a racial preference. Fulliiove v. Klut- zick, supra, 448 US at 514-517 and n.13 (Powell, J., concurring). Assuming arguendo that petitioners do not have a state law based property interest, they nevertheless have a pro- 25 tectable constitutional right not to be discriminated against by their public employer. If the State has the right to disregard and alter the eligible list, such alteration cannot be upon unconstitu tional considerations. Id. Here, the eligible list was altered on the basis of a presumptively invalid racial classification. Petitioners’ interests were not protected by the parties to the litigation. Once the settlement agreement was signed, the in terest of the State respondents immediately became antagonistic to that of the petitioners. After this realignment of interests, petitioners are in the position of plaintiffs challenging State ac tion which classifies on the basis of race. They have a right to be heard and to require the respondents to prove the validity of the presumptively invalid classification. Conclusion. The Courts are being asked with increasing frequency to ap prove settlement agreements in public employment discrimina tion cases. Millions of citizens work as public employees and are vitally concerned with their rights under civil service laws, col lective bargaining agreements, Title VII, the Constitution, the interaction of these authorities and the impact thereof on their careers. It is important for this Court to set uniform standards for the Courts to follow in the voluntary settlement of public employment discrimination cases and to define the nature and extent of the rights of all interested parties including those prej udiced by such settlements. The case is important and should be heard. Respectfully submitted, RICHARD R. ROWLEY (Counsel of Record) ROWLEY, FORREST and O ’DONNELL, P.C. MARK T. WALSH, Jr., Of Counsel 90 State Street Albany, NY 12207 (518) 434-6187 Counsel for Petitioners la APPENDIX A —Decision in the United States Court of Appeals, June 8, 1982. U N IT ED STATES C O U R T O F A P P E A L S For the Second Circuit — _ — — . Nos. 828, 909—August Term, 1982 (Argued February 3, 1983 Decided June 8, 1983) Docket Nos. 82-7830, 82-7874 ----- ——-63-------- -—— Edward L. Kirkland, Joseph P. Bates, Sr., Arthur E. Suggs, each individually and on behalf o f all others similarly situated, Plain tiffs-Appellees, — against—■ The New York State Department of Correctional Services; Thomas A. Coughlin, III, individually and in his capacity as Commissioner o f the New York State D epartm ent o f Correctional Services; The New York State Civil Service Commission; Joseph Valenti, individually and in his capacity as President of the New York State Civil Service Commission and Civil Service Commissioner; Josephine Gambino and James McFarland, each individually and in h is /her capacity as Civil Service Commissioner, D efendants-A ppellees, Frederick E. Althiser, et al., Intervenors-Appe/lants-Appellees, 2a Robert J. McClay, et al., Intervenors-Appellees-Appellants. -------------- — — _ _ _ _ _ _ B e f o r e : Feinberg, C hief Judge, Lumbard and Kearse, Circuit Judges. Appeal by intervenors in action under Title VII o f the Civil Rights Act o f 1964, 42 U .S .C . §§ 2000e to 2000e-17, from two orders o f Judge Griesa o f the Southern District o f New York. The first order allowed intervenors to intervene on the condition that their intervention would be limited to the purpose o f objecting to a proposed settlement between plaintiffs-appellees and defendants- appellees, and the second order approved the settlement. A ffirmed. O. Peter Sherwood, Esq., New York, N.Y. (Jack Greenberg, Esq., Penda D. Hair, Esq., New York, N.Y., o f counsel), for Plaintiffs-Appellees. Barbara B. . Butler, A ssistant A tto rney General, State of New York, New York, N.Y. (Robert A bram s, A ttorney General o f the State o f New York, Dennis H. 3a Allee, First Assistant A tto rney General, George D. Zuckerman, A ssistant Solici tor General, Ann H orow itz , Assistant A ttorney General, New York, N.Y., o f counsel), for Defendants-Appellees. Richard R. Rowley, Esq., Albany, N.Y. (Rowley, Forrest and O ’Donnell, P.C., Albany, N.Y., Ronald G. D unn, Esq., M ark T. Walsh, Jr., Esq., of counsel), for Althiser, et al., Intervenors-Appellants- Appellees. Herbert B. Halberg, Esq., New York, N.Y. (Beck, Halberg & W illiamson, New York, N.Y., Rom an Beck, Esq., o f counsel), for M cClay et a l., In te rvenors-A ppellees- Appellants. * Lumbard, Circuit Judge: Edward Kirkland and other minority Correction Ser geants in the New York State D epartm ent of Correctional Services (“ D O C S”) brought this class action on January 15, 1982 alleging that Prom otional Examination No. 36-808 (“ Exam 36-808” ), given on October 3, 1981 for the position o f Correction Lieutenant by DOCS and the New York Civil Service Commission (“ C SC ” ), and Exam 36- 808’s resulting eligibility list are racially discriminatory against blacks and hispanics in violation of, inter alia, Title VII o f the Civil Rights Act of 1964, 42 U .S .C . 4a §'§ 2000e to 2000e-17 (1976 and Supp. IV 1980).’ On August 20, 1982, pursuant to Fed. R. Civ. R 23(e), the parties submitted proposals o f settlement to Judge Griesa of the Southern District o f New York. A fter due notice, Judge Griesa held hearings on September 29 and October 4 and 14, 1982 during which he heard objections from two groups of non-class members (“ in terveners” ), i.e., non-minority correctional officers, who, at the September 29, 1982 hearing, had been permitted to intervene on the condition that their intervention would be solely for the purpose of objecting to the proposed settlement. On November 9, 1982, Judge Griesa approved the settlement and filed an opinion on December 1, 1982. 552 F. Supp. 667. In their appeal, intervenors challenge Judge G riesa’s grant of conditional intervention as well as his approval o f the settlement. On November 16, 1982, on intervenors’ m otion, we stayed Judge Griesa’s order o f approval and expedited argument o f the appeal. We affirm . I. BAC KG RO U N D A. Exam 36-808 and its Resulting Eligibility List. Exam 36-808, a written test consisting o f sixty multiple choice items, was administered by CSC on O ctober 3, 1981 to 739 candidates, o f whom 169 (22.9%) were This is the second class action filed by Edward Kirkland and other minority correctional officers challenging as racially discriminatory the promotional selection procedures employed by DOCS. The first law suit, K ir k la n d v. N e w York S ta te D e p a r tm e n t o f C o r r e c tio n a l S e rv ic es , 374 F. Supp. 1361 (S.D.N.Y. 1974), a f f ’d in p a r t a n d r e v 'd in p a r t , 520 F.2d 420 (2d Cir. 1975), cert, d e n ie d , 429 U.S. 823 (1976), o n r e m a n d , 482 F. Supp. 1179 (S.D.N.Y.), a f f d , 628 F.2d 796 (2d Cir. 1980), cert, d e n ie d , 450 U.S. 980 (1981) (“K ir k la n d S e r g e a n ts " ) , involved a successful challenge to the selection procedures used to promote correctional officers to the rank of Correction Sergeant. 5a minority. O f the 625 candidates who passed the test, 148 (22.0%) were minority. Thus, minority candidates had an overall pass rate of 88% (148 out of 169 minority cand i dates passed), only slightly below the 92% pass rate o f non-minorities (527 non-minority candidates passed). On December 23, 1981, CSC certified an eligibility list ranking the passing candidates according to their final scores, which were calculated by adding seniority and veterans’ credits to the candidates’ adjusted scores.2 Al though the overall minority representation on the eligibil ity list (22.0%) was approxim ately the same as the minority representation in the total candidates pool (22.9%), minority representation within the eligibility list’s rank-ordering system was disproportionately low at the list’s top and high at the list’s b o tto m .3 A racia l/ ethnic breakdow n o f the candidates’ raw scores, which reflect only the number of correct answers given, shows that the awarding o f seniority and veterans’ credits to qualifying cand ida tes 'd id not play a significant role in 2 A candidate’s adjusted score was determined by adding 31 points to the number o f items answered correctly. S e e 4 N.Y.C.R.R. § 67.1(h). Seniority credits were added on the basis of 1.0 point for each five years of service. S e e id . § 67.2. Veterans were entitled to have 2.5 points, or 5.0 points if they were disabled, added to their scores, but this credit could be claimed only once in an officer’s career. N.Y. Civ. , Serv. Law § 85 (McKinney 1983). 3 The racial/ethnic breakdown of the eligibility list is as follows: Position Percent N um ber N um ber Rank Nos. M in o r ity M in o r ity N o n -M in o rity 1-107 5.6 % 6 101 108-229 9.8% 12 110 230-298 16.0% 11 58 299-416 19.5% 23 95 417-525 29.4% 32 77 526-619 33.0% 31 63 620-672 47.2% 26 28 6a causing the uneven distribution o f minorities on the eligibility list.4 A ppointm ents according to rank-order on the eligibility list began in early January, 1982. O f 171 initial appo in t ments, 17 (9.9%) were minority. By July 28, 1982, 222 candidates had been prom oted to Correction Lieutenant, of whom only 20 (9.0%) were minority. As o f September 29, 1982, 225 appointm ents had been made, o f which 21 (9.3%) went to minority candidates. B. The Settlement Agreement. On January 15, 1982, immediately after the first ap p o in tm e n ts from the eligibility list, plaintiffs b rought this class action. They alleged tha t DOCS, CSC,- and their high officers had engaged in unlawful discrimination against blacks and hispanics in the development and administration o f Exam 36-808 and in the use o f the resulting eligibility list to make perm anent prom otional appointments to the position o f Correction Lieutenant. Plaintiffs contended that Exam 36-808 was discriminatory because (1) it resulted in a disproportionately low num ber o f minority appointm ents and (2) it was not job-related. The complaint sought an injunction against the continued use by defendants of all racially discriminatory practices, damages in the form of back pay for alleged past dis- ; crimination, and other relief, including the development The raw scores showed the following racial/ethnic breakdown: Score P ercen t N u m b e r N u m b e r R ange M in o r ity M in o r ity N o n -M in o r ity 50-54 7.9% 7 82 48-49 10.1% 12 107 45-47 20.8% 42 160 43-44 26.0% 27 77 39-42 33.8% 53 104 7a of non-discriminatory selection procedures for p rom otion and the im plem entation o f steps to redress the d iscrim ina tory effects o f Exam 36-808 and its resulting eligibility list. In August 1982, following seven months of discovery proceedings and extensive settlement negotiations, the parties entered into a settlement agreement which con tains two basic elements “ to assure that minorities by reason o f their race are not disadvantaged by the employ ment policies, procedures and practices within . . . [DOCS], and tha t any disadvantage to minorities which may have resulted from the use o f Exam ination No. 36-808 is remedied as provided herein so that equal opportunity will be provided for all.” Settlement A gree ment art. 1(7). First, it provides measures to adjust the current eligibility list to eradicate all d isproportionate racial impact. Second, it provides for the development and adm inistration o f new selection procedures for p ro motion to Correction Lieutenant and Correction Captain which will be employed after the current eligibility list for Exam 36-808 has been exhausted.5 1. A djustm ent o f the Current Eligibility List. The agreement provides that all candidates who have received appointm ents from the eligibility list will retain their appointm ents and that appointm ents will continue until the list is fully exhausted, i.e., “ until every eligible In their complaint, plaintiffs had also alleged that because appoint ments made from Exam 36-808’s eligibility list determined who would be eligible to sit for the examination for promotion to Correction Captain, that examination was necessarily tainted by unlawful dis crimination. The Correction Captain’s examination was administered on January 30, 1982, but as of August 20, 1982, the date on which the settlement agreement was submitted to Judge Griesa, no eligibility list resulting from that test had yet been certified. 8a on the 36-808 List has been offered an appoin tm ent and has been afforded a reasonable opportunity to either accept or decline.” Settlement Agreement art. VI(5)(c). The agreement seeks to eliminate the eligibility list’s adverse impact on minorities by modifying its rank-order ing system. All candidates who passed Exam 36-808, including those candidates who have already been ap pointed, are to be placed into three zones based on their final test scores which, as discussed above, include senior ity and veterans’ credits.6 O f the 225 appointm ents which had been made by September 29, 1982, most were offered to candidates who would place in the highest zone.7 The agreement contains the following procedures to govern future promotions from the eligibility list.8 All candidates falling within a single zone are to be deemed to be o f equal fitness and will be ranked within their zone by random selection. A ppointm ents will then be offered by rank order to those candidates in the highest unexhausted zone. However, these appointm ents will first be offered to minority candidates in this zone until m inority appo in t ments am ount to 21% of all appointm ents made, a num ber approxim ate ly reflecting the percen tage o f The breakdown of the zones is detailed in the following table: Score R a n k N u m b e r o f Z o n e R a n g e R a n g e E lig ib les 1 82.5 + 1-247 233 2 78.0-82.0 248-525 286 3 73.0-77.5 526-672 153 There are circumstances, such as when a candidate declines to accept an appointment at a particular facility, which result in appointments being made other than in strict rank order. Although the basic features are contained in the settlement agree ment, further details were provided by counsel at the hearing of September 29, 1982 and are contained in the minutes. 9a minorities on the eligibility list.9 Thereafter, appoin tm ents will be made in a ratio of 4 to 1, non-m inority to minority, until the eligibility list is exhausted. In any event, no minority applicant in a lower zone will be eligible for appoin tm ent until appointm ents have been offered to all candidates, regardless o f race, in the highest unexhausted zone. Finally, candidates will only be offered appointments to facilities or locations at which they have expressed a willingness to serve. If no minority candidate has designated the facility or location at which a vacancy occurs, the appoin tm ent will be offered to non-minority candidates notwithstanding the fact that the 23% ratio has not been achieved. 2. Future P rom otional Procedures fo r Correction Lieutenant and Correction Captain. The agreement also requires the parties to work toward the development o f new selection procedures for p rom o tion to Correction Lieutenant and Correction Captain which do not have an adverse racial impact and which are job-related. These procedures are to be employed after the current eligibility list is exhausted. The agreement requires defendants to “ consider the possibility o f al ternatives or supplements to written examinations, includ ing use o f ora l exam ina tion or assessment center techniques,” Settlement Agreement art. VI(7)(c), but it does not m andate adoption o f any specific approach. In short, the agreement suggests various procedures that Judge Griesa noted that since 225 appointments had been made as of September 29, 1982, of which 21 were minority appointments, the number of minority appointments needed to reach the 21% ratio is small: “ If 32 minority appointments are made, the total appointments would be 257 of which 53 (or 21%) would be minority.” 552 F. Supp. at 671. 10a have been used successfully in other situations to insure that future selection processes are not racially discrimina tory. C. The Proceedings in the District Court. The settlement agreement was submitted to Judge Griesa on August 20, 1982 for approval pursuant to Fed. R. Civ. P. 23(e). Pursuant to an order o f Judge Griesa, due notice was given to members of the pla in tiff class and to each candidate on the eligibility list who had not yet been appointed that objections would be heard on Sep- 'b e r 29, 1982. The notice included a sum m ary o f the 'W riem en t’s terms and a statement that any DOCS em ployee could file objections to the settlement with the district court. Two groups of non-class m em ber/non-m inority correc tional officers appeared at the September 29, 1982 hearing and sought intervention. A fter hearing the p ro posed interveners’ objections to the settlement and their application for intervention, Judge Griesa, considering in tervenors’ application to be a request for permissive intervention under Fed. R. Civ. P. 24(b), ruled from the bench that “ the intervenors are permitted to intervene for the sole purpose o f objecting to the settlement . . . Judge Griesa stated tha t he was limiting the intervention ^ ^ n a r i ly because the application was untimely. He found tha t intervenors had known o f the action since its incep tion, and that although they were present at a July 14, 1982 conference at which the terms o f the settlement were fully discussed, they did not then press for intervention and in fact appeared to favor the concepts and general terms of the settlement. Accordingly, Judge Griesa be lieved that it would be unfair to grant unlimited interven tion because the parties “ through hard work, careful 11a thought and extensive negotiation” had decided “ that there was no need for a triai and that there could be a settlement,” while interveners had taken no formal steps to intervene until after a settlement had been reached. He also noted that there was a “ serious question” whether intervenors, even if granted unconditional intervention, would have sufficient standing beyond that enabling them to object to the settlement to require a full blown trial at which they would be permitted to defend the validity o f Exam 36-808. Additional hearings were held on O ctober 4 and 14, and the parties and intervenors thereafter subm itted briefs. On November 9, 1982, Judge Griesa issued an order approving the settlement on the grounds tha t it was “ fair, reasonable and lawful in all respects” and tha t the intervenors’ objections were “ without m erit.” In his sub sequent opinion of December 1, 1982, 552 F. Supp. 667, Judge Griesa wrote: The present settlement agreement is not only ju s t i fied by legal precedent, bu t is inherently reasonable and sound as a m atter o f policy. The benefits to plaintiff class o f minority applicants inevitably result in some detriment to non-minority correctional off i cers competing for prom otion to the rank o f Lieuten ant. However, the benefits to plaintiff class are modest and are carefully tailored to the precise problem raised by them in litigation. By the same token, the detriment to the non-minority applicants is also modest and is in fact considerably less than what might have occurred if plaintiffs had pressed their litigation to the end and not agreed to a settle ment [i.e., those appointm ents already made could have been declared null and void]. Id. at 671. 12a Specifically, Judge Griesa found that the statistical dem onstration o f the eligibility list’s d isproportionate racial impact established a prim a facie case o f Title VII discrimination under Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977), and held that a reasonable basis there fore existed for entering into a settlement creating race conscious remedies. 552 F. Supp. at 670, 672-75. Next, he determined that the remedies provided by the settlement were neither unreasonable nor unlawful on the grounds tha t the adjustment o f the eligibility list into zones did not violate either state law or intervenors’ federal constitu t i o n a l rights and that the settlem ent’s racial preference procedures did no t constitute an unconstitutional quota . Id. at 675-77. Intervenors challenge Judge Griesa’s September 29, 1982 grant of conditional intervention and his subsequent approval of the settlement. On November 16, 1982, we granted intervenors’ m otion for a stay o f Judge G riesa’s order and expedited argum ent o f the appea l.10 Thereafter, a third group o f correctional officers, consisting o f Cor rection Sergeants not on the current eligibility list but eligible to take the next examination for p rom otion to 10 Our November 16, 1982 order granting the stay incorporated a provision of the appellees’ proposed order, contained in their opposi tion papers, which provided: [T]hat if provisional appointments are made, that they be made in accordance with the terms of the settlement, that if the settlement agreement is upheld, minority officers be given retroactive seniority credits. On March 4, 1983, we granted the request of the parties, including the intervenors, to modify the stay to read as follows: [I]f the settlement agreement is upheld, all provisional Lieutenants appointed pursuant to the stay granted by this Court, minority and non-minority, shall be given permanent status in the title of Correc tion Lieutenant as of the date of their provisional appointment pursuant to the stay for all purposes, including probation. 13a Correction Lieutenant, sought leave to intervene for, inter alia, the limited purpose o f urging that a four year maximum life be imposed on the current eligibility list. We denied the m otion and instead granted these proposed interveners leave to file briefs as amici curiae. II. TH E Q U ESTIO N OF C O N D ITIO N AL IN TE R VENT-ION Questions relating to the scope and nature o f interven tion are attaining increasing im portance in cases involving the approval o f consent decrees or stipulations which, in settling em ployment discrimination suits, create race or sex-conscious hiring or prom otional remedies that affect non-complaining employees. See, e.g., S totts v. M em phis Fire Department, 679 F.2d 579 (6th Cir.), cert, denied, 103 S. Ct. 297 (1982) (“ Stotts IP'); Culbreath v. D ukakis, 630 F.2d 15 (1st Cir., 1980); Airline Stewards & Steward esses Association, Local 550 v. American Airlines, Inc., 573 F.2d 960 (7th Cir. 1978) (per curiam), cert, denied, 439 U.S. 876 (1979); Equal Em ploym ent Opportunity Commission v. Am erican Telephone & Telegraph Co., 556 F.2d 167 (3d Cir. 1977), cert, denied, 438 U.S. 915 (1978). Judge Griesa permitted the non-class m em ber/ non-minority intervenors to intervene, limiting their inter vention to objecting to the proposed settlement, as he held their application was untimely. For different reasons we agree that intervention should have been so limited. Intervenors’ reason for challenging Judge Griesa s grant o f conditional intervention is their belief tha t, if afforded full intervention, they would have equal s tand ing with the original parties; thus, their consent to the agreement would be required, and, in the event that they were dissatisfied with the agreement, they could then 14a force a trial at which they would be permitted to defend the.validity o f Exam 36-808. W e disagree. As Judge Griesa suggested at the September 29, 1982 hearing, the sum of rights possessed by an intervenor, even if granted unconditional intervention, is no t neces sarily equivalent to that of a party in a case and depends upon the nature of the in tervenor’s interest. See Boston Tow Boat Co.- v. United States, 321 U.S. 632 (1944); Airline Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra, 573 F.2d at 964; Equal Em ploym ent Opportunity Commission v. American Tele phone & Telegraph Co., supra, 556 F.2d at 173; see also ^ S h a p i r o , Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 727 (1968) [hereinafter Shapiro]. Non-minorities do not have a legally protected interest in the mere expectation o f appointments which could only be made pursuant to presumptively discriminatory employment practices. See Franks v. Bowman Transportation Co., 424 U.S. 747, 775-78. (1976); Stotts II, supra, 679 F.2d at 583-84 & n.3; Equal Em ploym ent Opportunity Commission v. A m eri can Telephone & Telegraph Co., supra, 556 F .2d at 173. Accordingly, the legal rights o f non-minorities generally are not adversely affected by reasonable and lawful race conscious hiring or prom otional remedies, whether such remedies are imposed by court order following litigation ■"''on the merits or are created by voluntary agreement between the parties. See Stotts II, supra, 679 F.2d at 583; Stotts v. M emphis Fire Department, 679 F.2d 541, 554, 556, 558 (6th Cir. 1982), cert, granted, 51 U .S .L .W .____ (U.S. June 6, 1983) (No. 82-229) (“ Stotts / ” ); Setser v. Novack Investm ent Co., 657 F.2d 962, 970 (8th Cir. 1981) (en banc); Prate v. Freedman, 583 F.2d 42, 47 (2d Cir. 1978); Equal Em ploym ent Opportunity Commission v. 15a American Telephone & Telegraph Co., supra, 556 F.2d at 173. It follows, therefore, that although non-minority third parties allowed to intervene in cases which involve consent decrees or settlement agreements implementing race-conscious hiring or prom otional remedies do have a sufficient interest to argue that the decree or agreement is unreasonable or unlawful, their interest in the expectation of appoin tm ent does not require their consent as a condi tion to any voluntary com prom ise o f the litigation. See Airline Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., supra, 573 F.2d at 964; Equal Em ploym ent Opportunity Commission v. Am erican Tele phone & Telegraph Co., supra, 556 F.2d at 173 (interests of a third party in a consent decree limited to app rop ri ateness o f the remedy); see also Stotts II, supra, 679 F.2d at 584 n.3 (dictum); Stotts I, supra, 679 F.2d at 554; In re Fine Paper Litigation State o f Washington, 632 F.2d 1081, 1087 (3d Cir. 1980); Kirkland Sergeants, 520 F.2d 420, 424 (2d Cir. 1975), cert, denied, 429 U.S. 823 (1976); Shapiro, supra, at 756 n.157 (“ It might . . . be possible to hold that persons allowed to intervene in a consent decree proceeding could argue . . . that the decree was inadequate but could not veto the entrance o f the decree . . . .” ). Indeed, a rule indiscriminately enabling all interveners in these cases to veto proposed compromises would seriously ham per efforts to settle Title VII cases, see Airline Stewards & Stewardesses Association, Local 550 v. Am erican Airlines, Inc., supra, 573 F.2d at 963, thereby frustrating Congress’s expressed preference for ' achieving Title VII compliance by voluntary means. See, e.g., Alexander v. Gardner-Denver Co'., 415 U.S. 36, 44 (1974); Berkman v. City o f New York, No. 82-7654, slip op. at 2726 (2d Cir. M arch 29, 1983). 16a United States v. City o f Miami, 664 F.2d 435 (5th Cir. 1981) (en banc), is not to the contrary. Reviewing the approval o f a Title VII consent decree between the gov ernm ent and the defendant-city, the panel decision in that case, 614 F.2d 1322 (5th Cir. 1980), a f f ’d in part and rev ’d in part, 664 F.2d 435 (1981) (en banc), held: Unless the F O P [the named defendant-union] can dem onstrate that it has been ordered to take some action by the [consent] decree, or ordered not to take some action, or that its rights or legitimate interests have otherwise been affected, it has no right to prevent the other parties and the C ourt from signing the decree. Id. at 1329 (footnotes omitted) (emphasis supplied). None o f the separate opinions in the en banc decision expressly disputed this rule. See 664 F.2d at 447 (plurality opinion); id. at 452-53 (Gee, J., concurring in part and dissenting in part); id. at 453 (Tjoflat, J., dissenting); id. at 462 (Johnson, J., concurring in part and dissenting in part). Instead, contrary to the panel’s determination, a m ajority o f the en banc court held that the consent decree did in fact adversely affect the defendant-union’s legally p ro tected interests “ insofar as it deprive[d] the FO P and its members of the benefit o f the prom otion procedure that was in effect a part of the FO P contract [i.e., collective b a r g a i n in g agreement] with the [defendant] C ity .’’ Id. at 447 (plurality opinion); see id. at 452-53 (Gee, J., concur ring in part and dissenting in part). Thus, the defendant- un io n ’s consent was required before the decree could be approved not because o f its mere status as a full defen dan t in the case, but because the decree bound the 17a defendant-union to a compromise which altered its con tractual rights." Intervenors contend, however, that like the defendant- union in the City o f Miami, they possessed specific contractual rights under their un ion ’s collective barga in ing agreement with the state which would be impaired by the settlement agreement. W e disagree. In City o f M iami, the relevant contract provision, entitled “ Prevailing Bene fits,” provided in pertinent part: All job benefits in effect at the time o f the execution of this [A greem ent heretofore authorized . . . [by ordinance], not specifically provided for or abridged by this [Ajgreement, shall remain in fu l l fo rce and effect fo r the duration o f this Agreement. The City and the Employee Organization will . . . negotiate any proposed changes in those rights and benefits not specifically covered by this Agreement, provided however no changes shall be made except by m utual consent and any impasse shall not be subject to the Impasse Resolution as provided for in [the Agreement]. 664 F.2d at 446 (emphasis supplied). Holding that this provision prevented the defendant-city from altering all relevant, existing ordinances without the defendant- union’s consent, the court ruled that the defendant-union The plurality opinion in C ity o f M ia m i concluded as follows: A party potentially p r e ju d ic e d by a decree has a right to a judicial determination of the merits of its objection. T h e p a r ty is p r e ju d ic e d i f th e d e cree w o u ld a lte r i ts c o n tr a c tu a l r ig h ts and depart from the governmental neutrality to racial and sexual differences that is the fundament of the fourteenth amendment in order to redress past discrimination. 664 F.2d at 447 (emphasis supplied). 18a had a clear contractual right in the existing Miami Civil Service Ordinance, which provided for prom otion proce dures, and that the existence o f this right prevented the approval o f a consent decree altering the prom otion procedures without the defendan t-un ion’s concurrence. Id. at 446-47; id. at 452 (Gee, J., concurring in part and dissenting in part). The collective bargaining agreement in the present case between intervenors’ union and the state contains only one provision that could possibly encom pass prom otion procedures. Entitled “ Preservations of Benefits,” article 27 o f the agreement provides: With respect to matters not covered by this Agree ment, the Employer will not seek to diminish or impair during the term o f this Agreement any benefit or privilege provided by law, rule or regulation for employees without prior notice to the Union and when appropriate, without negotiations with the Union provided, however, that this Agreem ent shall be construed consistent with the free exercise o f rights reserved to the Employer by Article 6 o f this Agreement. (Emphasis supplied). Article 6, in turn , provides that “ [e]xcept as expressly limited by other provisions o f this Agreement, all o f the authority, rights and responsibilities ^p o ssessed by the Em ployer are retained by it.” (Emphasis supplied). The difference between these provisions and the City o f M iam i provision is clear. Unlike the City o f M iami provision, the plain language o f articles 6 and 27 leaves unimpaired the New York State C SC ’s authority over examinations and eligibility lists, which affords it wide discretion to choose and modify the procedures it sees fit to determine merit and fitness. See, e.g., Katz v. Hoberman, 28 N.Y.2d 530 (1971); M etzger v. Nassau County Civil Service Commission, 54 A .D .2d 565, 386 N.Y.S.2cI 890 (2d D ep’t 1976). Accordingly, it cannot be said that these provisions give intervenors a specific contractual right in the preservation o f their positions on the Exam 36-808’s eligibility list.12 The only interest, therefore, that intervenors possess is their mere expectation o f prom otion pursuant to possibly discriminatory selection procedures. This interest alone, though it entitles intervenors to be heard on the reason ableness and legality o f the agreement, is not so strong as to require their consent to the agreement. Thus, Judge Griesa granted intervenors the intervention rights to which their interest entitled them when he permitted them to intervene solely to object to the settlement. See Airline Stewards & Stewardesses, Local 550 v. American A ir lines, Inc., supra, 573 F.2d at 964; Equal Em ploym ent Opportunity Commission v. American Telephone & Tele graph Co., s u p r a , '556 F.2d at 173. Thus, we reject intervenors’ challenge to Judge G riesa’s grant o f cond i tional intervention without reaching the question o f tim e liness.12 We note, however, that if in tervenor’s application was in fact untimely, it would have been within Judge Even if the collective bargaining agreement’s provisions gave inter venors a legal right in the existing promotional procedures, such a right would not allow intervenors to veto the settlement unless it also was shown that New York law permitted the authority of the CSC to be circumscribed by private agreement. S e e U n ite d S ta te s v. C ity o f M ia m i, su p ra , 664 F.2d at 447. The nature and effect of intervenors’ interest would also be impor tant to a timeliness analysis, since the prejudice that intervenors would suffer from a limitation of intervention is an element to be considered in determining whether an application was timely under the circum stances. S ee, e .g ., C a r r ity v. C a lle n , 697 F.2d 452, 455 (1st Cir. 1983); S ta llw o r th v. M o n s a n to , 558 F.2d 257, 264-66 (5th Cir. 1977); se e a lso N A A C P v. N e w York, 413 U.S. 345, 364 (1973); U n ite d S ta te s P o s ta l S e rv ic e v. B re n n a n , 579 F.2d 188, 191 (2d Cir. 1978). G riesa’s discretion to deny them any form o f interven tion. See, e.g., S totts II, supra, 679 F.2d at 582-86; Culbreath v. Dukakis, supra, 630 F.2d at 20-25. III. TH E P R O P R IE T Y OF A P PR O V IN G TH E SE T T L E M E N T A G R E E M E N T It is settled tha t voluntary compliance is a preferred means of achieving Title V II’s goal o f eliminating em ployment discrimination. See, e.g., Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981); Alexander v. Gardner-Denver Co., supra, 415 U.S. at 44; Berktnan v. City o f New York, supra, No. 82-7654, slip op. at 2726; Williams v. City o f N ew Orleans, 694 F,2d 987, 991 (5th Cir. 1982), reh’g granted, No. 82-3435 (Feb. 14, 1983); Patterson v. Newspaper & M ail Deliverers’ Union, 514 F.2d 767, 771 (2d Cir. 1975), cert, denied, 427 U.S. 911 (1976). Accordingly, voluntary compromises o f Title VII actions enjoy a presum ption of validity,14 see, e.g., United States v. City o f Alexandria, 614 F.2d 1358, 1359, 1362 (5th Cir. 1980); Vulcan Society o f New York City Fire Department, Inc. v. City o f New York, 96 F.R.D. 626, 629 (S.D.N.Y. 1983), and should therefore be approved “ unless . . . [they] contain]] provisions that are unrea sonable, unlawful, or against public policy.” Berkman v. Specifically, Title Vll settlements are afforded a presumption of validity because they “may produce more favorable results for pro-’ tected groups than would more sweeping judicial orders that could engender opposition and resistance,” Vulcan S o c ie ty o f W e s tch e s te r C o u n ty , In c . v. F ire D e p a r tm e n t o f C ity o f W h ite P la in s , 505 F. Supp. 955, 961 (S.D.N.Y. 1981); se e a lso Vulcan S o c ie ty o f N e w Y ork C ity F ire D e p a r tm e n t, In c . v. C ity o f N e w Y ork, 96 F.R.D. 626, 629 (S.D.N.Y. 1983), and because they also reduce the cost of litigation, promote judicial economy, and vindicate an important societal interest by promoting equal opportunity. S to t t s /, su p ra , 679 F.2d at 555. 21a City o f New York, supra, No. 82-7654, slip op. at 2726: see also United States v. City o f Miami, supra, 664 F.2c at 441 (voluntary compromise affecting third partie: should be approved only if the court is “ satisfied that the effect on them is neither unreasonable nor proscribed” (plurality opinion). We have recently held that “ the dis trict co u r t’s approval o f a [Title VII] settlement should b< upheld unless it constituted an abuse o f discretion.’ Berkman v. City o f New York, supra, No. 82-7654, sli} op. at 2726-27; see also Patterson v. Newspaper & Mai Deliverers’ Union, supra, 514 F.2d at 771. The probability o f plaintiffs’ success on the merits am the range o f possible relief are factors that courts hav< considered im portan t in determining whether a Title VI class action settlement agreement should be approved See, e.g., Reed v. General M otors Corporation, 703 F.2< 170, 172 (5th Cir. 1983); Plummer v. Chemical Bank, 66 F.2d 654, 660 (2d Cir. 1982); 5<?e also Carson v. Am erica, Brands, Inc., supra, 450 U.S. at 88 n.14; City o f Detroi v. Grinnell Corporation, 495 F.2d 448, 455 (2d Cir. 1974) See generally 7A C. Wright & A. Miller, Federal Practic and Procedure § 1797, at 230-31 (1972). We believe the when such a settlement implements race-conscious remc dies, these factors can be encompassed by two cen tn inquiries: (1) whether there is an existing condition whic can serve as a proper basis for the creation o f race-cor scious remedies; and (2) whether the specific remedies c the compromise agreement are neither unreasonable nc unlawful. See Stotts I, supra, 679 F.2d at 552-53; Setser i Novack Investm ent Co., supra, 657 F.2d at 967 & n.^ Intervenors’ objections follow these two questions an can be summarized as follows: (1) that before any race conscious relief can be granted to plaintiff class, the: must be a judicial determination that Exam 36-808 and ii 22a resulting eligibility list are not job-related and are there fore racially discriminatory, i.e., a mere statistical show ing o f disproportionate impact does not am oun t to a proper basis for settlement; and (2) that in any event, the terms o f th e ; settlement agreement are unreasonable and unlawful. A. The Proper Basis fo r Settlement. Judge Griesa, finding that the statistical dem onstration of the ^eligibility list’s d isproportionate racial impact es tablished a jarima facie case o f Title VII discrimination, F. Supp. at 670, determined tha t this case alone scfved as a “ sufficient showing o f serious questions o f racial discrimination under Title V II” to justify a settle ment containing race-conscious remedies. Id. at 675. Intervenors, however, argue that because the district court did not consider the validity o f Exam 36-808, its approval rested on an inadequate foundation and thus should be reversed. Intervenors also assert that, in any event, Judge Griesa erred in finding a prim a facie case o f discrimina tion. We find no merit in these contentions. 1. The Prima Facie Case as the Proper Basis. The gist of intervenors’ first contention is that because § '’03(h) of Title VII, 42 U .S .C . § 2000e-2(h) (1976), ^wvides that a “ professionally developed ability test” is not unlawful even though it results in a disparate impact, a judicial determination that Exam 36-808 was not job -re lated, and thus not a “ professionally developed ability test,” see Griggs v. D uke Power Co., 401 U.S. 424, 436 (1971), was required before a proper basis for settlement could exist. Intervenors’ argum ent, however, would turn Title VII law on its head since, as intervenors themselves 23a concede, job-relatedness is never presumed and only becomes an issue after it is affirmatively raised by the defendant. See Texas Department o f Com m unity A ffa irs v. Bur dine, 450 U.S. 248, 254 (1981); Griggs v. D uke Power Co., supra, 401 U.S. at 432. Moreover, if inter veners’ , position were adopted, no Title VII testing case could be settled by agreement until a judicial determ ina tion on the test’s job-validity was made. Such a result would seriously undermine Title V II’s preference for voluntary compliance and is not warranted. See Regents o f University o f California v. Bakke, 438 U.S. 265, 364 (Brennan, J., concurring in part and dissenting in part); Equal Em ploym ent Opportunity Commission v. Safeway Stores, Inc., 611 F.2d 795, 801 (10th Cir. 1979), cert, denied, 446 U.S. 952 (1980). Neither Title VII nor the Constitution prohibits com promise agreements implementing race-conscious rem e dies which are agreed to prior to a judicial determination on the merits. See United Steelworkers o f America v. Weber, 443 U.S. 193, 207-08 (1979) (Title VII); Regents o f University o f California v. Bakke, supra, 438 U.S. at 265, 301-02 & n.41 (Powell, J., announcing the judgm ent o f the Court) (fourteenth amendment); see also Prate v. Freedman, supra, 583 F.2d at 47 n.4 (“Our decision in United States v. Wood, Wire & Metal Lathers Interna tional Union, Local 46, [471 F.2d 408 (2d Cir.), cert, denied, 412 U.S. 939 (1973)] . . . foreclosed the a rgu ment that preferential hiring relief may only be based on formal finding o f past discrimination made after an evidentiary hearing.” ) In class actions the principal re quirement for such a settlement is that there be a reason able basis for the comprofnise, i.e., some showing of probability o f success on the merits. See, e,g., Reed v. General M otors Corporation, supra, 703 F.2d at 172; 24a Plum m er v. Chemical Bank, supra, 668 F.2d at 659-60; Setser v. N ovack Investment Co., supra, 657 F.2d at 968. W hen the settlement contains race-conscious relief affect ing third parties, some well substantiated claim o f racial discrimination against the plaintiff class is necessary “ to ensure tha t new forms of invidious discrimination are not approved in the guise of [race-conscious remedies].” Set ser v. N ovack Investm ent Co., supra, 657 F.2d at 968; see also Valentine v. Smith, 654 F.2d 503, 508 (8th Cir.), cert, denied, 454 U.S. 1124 (1981); Vulcan Society o f New York City Fire Department, Inc. v. City o f N ew York, supra, 96 F.R.D. at 629. ^ We agree with Judge Griesa that a showing o f a prim a facie case o f employment discrimination through a statis tical dem onstration of d isproportionate racial impact constitutes a sufficiently serious claim o f discrimination to serve as a predicate for a voluntary compromise containing race-conscious remedies. See S to tts I, supra, 679 F.2d at 552; Setser v. N ovack Investm ent Co., supra, 657 F.2d at 968; Vulcan Society o f Westchester County, Inc. v. Fire Department o f City o f White Plains, 505 F. Supp. 955, 962 (S.D.N.Y. 1981).15 A statistical showing of adverse impact creates a “ presumption of Title VII dis crim ination,” Guardians Association o f New York City Police Department, Inc. v. Civil Service Commission, 630 ~ 2 d 79, 88 (2d Cir. 1980), cert, denied, 452 U.S. 940 SA981), which, if unrebutted by any showing that the contested practice was job-related, requires the court to enter a decree finding unlawful discrimination. Id. at 88; 15 Both the Sixth and Eighth Circuits believe that a statistical imbal ance falling short of a p r im a f a c i e case is sufficient to constitute a proper basis for settlement. S to l l s /, su p ra , 679 F.2d at 555 n.10 (6th Cir.); S e ts e r v. N o v a c k In v e s tm e n t C o ., su p ra , 657 F.2d at 968 (8th Cir.). 25a see Texas Department o f C om m unity A ffa irs v. Burdine, supra, 450 U.S. at 253-54; Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Such a finding, in turn, gives the district court “ broad, although not unlimited, power to fashion the [race-conscious] relief it believes appropriate.” Berkman v. City o f New York, supra, No. 82-7654, slip op. at 2719. Accordingly, because a judicial finding o f unlawful discrimination under Title VII allow ing the imposition o f race-conscious remedies can be made on the showing o f a prima facie case when the defendant fails to rebut the case, we think that an unrebutted prim a facie case is sufficient to serve as a proper basis for a settlement containing race-conscious remedies when the defendant chooses to enter into a compromise. See Prate v. Freedman, supra, 583 F.2d at 47. Simply stated, a defendan t’s entrance into a com pro mise without rebutting an established prima facie case amounts to an admission o f unlawful discrimination for purposes o f Title V II .16 Id. at 47; see also United States v. City o f M iami, supra, 664 F.2d at 442. 2. The Prima Facie Case. Intervenors’ next assert that, in any event, there existed no basis for the settlement since Judge Griesa erred in finding a prim a facie case o f discrimination. We disagree. ,6 Although the settlement agreement contains disclaimers of any admission of unlawful discrimination, Settlement Agreement arts. 1(5) & (12), the defendants do not dispute the facts showing an adverse impact. Because such disclaimers are used in many compromises of this nature to protect defendants from making themselves vulnerable to large backpay awards, se e U n ite d S ta te s v. C ity o f A le x a n d r ia , su p ra , 614 F.2d at 1365 n.15, we construe the disclaimers to be admissions that there is a statistical disparity together with a reserva tion of the right to explain it in the future. Id .; see a lso S to t t s /, su p ra , 679 F.2d at 553 n.10. 26a Judge Griesa determined that a prim a facie case of em ployment discrimination had been established after reviewing the statistics relevant to Exam 36-808 and its eligibility list. 552 F. Supp. at 670. Finding tha t the difference between the percentage o f minorities actually appointed as o f July 28, 1982 (9.0%) and the percentage which would be expected to be appointed from a random selection am ounted to the level o f 5.86 standard devia t ions ,17 Judge Griesa ruled that the statistics made out a prim e facie case of Title VII discrimination under Cas taneda v. Partida, 430 U.S. 482 (1977). Castaneda stated, x 'th a t in cases involving significant statistical samples, “ if the difference between the expected value [from a random selection] and the observed num ber is greater than two or three standard deviations,” a prim a facie case is es tablished since the deviation then could only be regarded as caused by some factor other than chance. Id. at 496 n. 17. Intervenors do not challenge Judge G riesa’s use o f the Castaneda test, but rather, for the first time on appeal, they assert that he did not apply the law to the appropri ate set of facts. They contend that Judge G riesa’s use of u In G u a r d ia n s A s s o c ia tio n o f N e w Y ork C ity P o lic e D e p a r tm e n t , In c . v. C iv il S e rv ic e C o m m is s io n , su p ra , 630 F.2d at 86 n.4, we defined the concept of standard deviation as follows: The standard deviation for a particular set of data provides a measure of how much the particular results of that data differ from the expected results. In essence, the standard deviation is a measure of the average variance of the sample, that is, the amount by which each item differs from the mean. The number of standard devia tions by which the actual results differ from the expected results can be compared to the normal distribution curve, yielding the likeli hood that this difference would have been the result of chance. The likelihood that the actual results will fall more than one standard deviation beyond the expected results is about 32%. For more than two standard deviations, it is about 4.6% and for more than three standard deviations, it is about .03%. 27a the final test scores as a statistically significant sample was im proper because these scores reflected the addition of seniority and veterans’ credits which may have caused the uneven distribution o f minorities on the eligibility list. We disagree. A breakdow n of the candidates’ raw scores, see note 4 supra, showsdhat the awarding of seniority and veterans’ credits did not play an appreciable role in creating the uneven distribution. Accordingly, Judge Griesa’s use o f the final scores could not have resulted in error. See Kirkland Sergeants, supra, 520 F,2d at 425 (racially d isproportionate impact need not be proven with complete mathematical certainty); Vulcan Society o f New York City Fire Department, Inc. v. Civil Service C om m is sion, 490 F.2d 387, 393 (2d Cir. 1973) (same). Intervenors next contend that the number o f actual minority appointm ents does not show disproportionate impact because this num ber does not account for the number of minorities who refused offers of appointm ent. Again, if it was im proper for Judge Griesa not to con sider this factor, such a measure was harmless since, based on the figures offered by intervenors themselves, the refusal rate for minorities was approximately equal to the refusal rate o f non-minorities. Intervenors’ final contention is that the d isproportion ate distribution on the eligibility list was caused by the fact that a large num ber o f the minority candidates had recently been transferred to DOCS from the S tate’s O f fice o f Drug A buse and thus took Exam 36-808 with minimal D O C S experience. This contention is also without merit. A lthough lack of experience may be rele vant to the question of a test’s job-validity, it does not affect the question whether a prima facie case has been properly established. See Albemarle Paper Co. v. M oody, supra, 422 U.S. at 425; Griggs v. Duke Power Co., supra, 28a 401 U.S. at 433-36. M oreover, differences in responsibil ity between Office o f Drug Abuse officers and officers working at minimum and medium security DOCS facili ties has been held to be negligible'. Stokes v. New York State Department o f Correctional Services, No. 80 Civ. 1364 (8 .D .N .Y . Sept. 27, 1982). Accordingly, we agree with Judge Griesa that a suffi cient basis existed for the parties to enter into the settle ment agreement. B. The Reasonableness and Legality o f the Settlement Agreement. Because the settlement agreement was submitted for approval w ithout any judicial de term ina tion on the merits, the reasonableness and legality o f the agreement under federal law must be measured against the allega tions o f the complaint and the relief which might have been granted had the case gone to t r ia l .18 United States v. City o f Alexandria, supra, 614 F.2d at 1364. Simply stated, the remedies provided by a Title VII settlement, especially those containing race-conscious relief, must be substantially related to the objective o f eliminating the alleged instance of discrimination, see Stotts J, supra, 679 F.2d at 553; Valentine v. Smith, supra, 654 F.2d at 510; United States v. City o f Alexandria, supra, 614 F.2d at 1366; Detroit Police O fficers’ Association v. Young, 608 F.2d 671, 696 (6th Cir. 1979), cert, denied, 452 U.S. 938 (1981), and must not unnecessarily tram m el the interests 18 Because state law must yield to federal law in Title VII cases, see G u a rd ia n s A s s o c ia tio n o f N e w Y ork C ity P o lic e D e p a r tm e n t , In c . v. C iv il S e rv ic e C o m m is s io n , su p ra , 630 F.2d at 105; 42 U.S.C. § 2000e-7 (1976), we need not consider whether the settlement agreement violates state law. 29a of affected th ird parties. See United Steelworkers o f America v. Weber, supra, 443 U .S. at 208; United States v. City o f Alexandria, supra, 614 F.2d at 1366. The alleged discrim ination was the adm in istration of Exam 36-808 and the use o f its resulting eligibility list. As previously discussed, the entrance o f defendants into the settlement in the face o f p la in tiffs’ unrebutted prima facie case o f discrim ination am ounts to an adm ission tha t the practice giving rise to the prima facie case, i.e., Exam 36-808 and its eligibility list are reasonable and legal since they substantially relate to the objective o f eradicating the discrim inatory im pact caused by Exam 36-808 and its eligibility list and are no t overly oppressive to the interests of non-m inorities. 1. Future Selection Procedures. The settlem ent agreem ent requires the parties to coop erate in the develppm ent o f new selection procedures for prom otion to C orrection L ieutenant and C orrection C ap tain, which are to be used after the exhaustion o f the current eligibility list. T he agreem ent encourages ab an donm ent o f the w ritten test as the sole indicator o f m erit and urges the creation o f racially neutral selection proce dures better designed to assess the candidates’ abilities. This part o f the settlem ent, which intervenors do not challenge, operates solely to eliminate the adverse effect of Exam 36-808 and to assure com pliance with T itle VII in the fu ture. M oreover, it does not tram m el any interests of non-m inorities. T hus, it is a proper remedy under the circumstances. Berkman v. City o f New York, supra, N o. 82-7654, slip op. at 2722-23; Guardians Association oj New York City Police Department, Inc. v. Civil Service Commission, supra, 630 F.2d at 109. 30a T: A djustm ent o f Rank-Ordering into Zones. Intervenors do, however, object to the settlem ent’s provisions adjusting the eligibility list’s rank-ordering system into zones. They contend tha t the m odification o f the list is not a proper Title VII rem edy since it im poses a procedure by which candidates will be appoin ted w ithout regard to m erit or fitness and th a t, in any event, the positions o f candidates on the eligibility list constitu ted vested property rights which could not be altered w ithout due process o f law. We find no m erit in these con ten tions.19 Recognizing the fact tha t small differences between the '^ s to re s o f candidates indicate very little abou t the candi dates’ relative m erit and fitness, we have held th a t as a means o f insuring com pliance with T itle VII “ the em ployer can acknowledge his inability to ju stify rank -o r dering and resort to random selection from w ithin either the entire group tha t achieves a properly determ ined passing score, or some segment o f the passing group shown to be ap p ro p ria te .” Guardians Association o f New York City Police Department, Inc. v. Civil Service Com mission, supra, 630 F .2d at 104; see also Vulcan Society o f Westchester County, Inc. v. Fire Department o f City o f White Plains, supra, 505 F. Supp. at 964. By the term s of the settlem ent, each zone contained an average o f 230 1 ndidates whose final scores d iffered by no m ore than four points out o f a possible final score o f 88, excluding We also find no merit in intervenors’ oblique argument that the adjustment of the eligibility list into zones by itself amounted to an unlawful quota. Because the mere creation of zones in no way requires that a minimum number of appointments be given to minority candi dates, it cannot be said that any race-conscious preference was es tablished. K ir k la n d S e r g e a n ts , 628 F.2d 796, 798 (2d Cir. 1980), c e r t, d e n ie d . 450 U.S. 980 (1981). 31a adjustm ents for seniority and veterans’ credits. See note 6 supra. The size o f the zones was based on a statistical com putation o f the likely error of m easurem ent inherent in Exam 36-808 and was believed by the settling parties to be consistent with our discussion in Guardians, supra, 630 F .2d at 102-03. A ccordingly, the ad justm ent was a proper m eans o f insuring com pliance with Title VII since, by creating a m ore valid m ethod to assess the significance of test scores, it elim inated the central cause o f the adverse im pact, i.e., the rank-ordering system, while assuring appoin tm ents on the basis o f m erit. In fact, the rank-ordering system perm issibly could have been m odi fied to produce a result m ore disadvantageous to inter- venors. See, e.g., Guardians Association o f New York City Police Department, Inc. v. Civil Service Com mis sion, supra, 630 F .2d at 104, 109 (employer may resort to random selection from w ithin entire group that achieves a minimal passing score); Vulcan Society o f Westchester County, Inc. v. Fire Department o f City oj White Plains, supra, 505 F. Supp. at 959, 964 (parties to a settlem ent can change a ranking exam to a general qualifying exam , i.e., everyone who obtained a passing grade would be treated equally for purposes o f next step in hiring process). T hus, the creation o f a tiered zone system which preserves some o f the results o f a discrim inatory test may have the least detrim ental effect on the interests o f n o n minority candidates who obtained high test scores. These provisions are reasonable and legal. Further, the ad justm ent o f the rank-ordering system does not deprive intervenors o f any vested property right which they had under New York law. The New Y ork Court o f A ppeals has stated tha t a person on an eligibility list does not possess “ any m andated right to appointm ent or any other legally protectible in terest.’’ Cassidy v. 32a M unicipal Civil Service Commission, 37 N .Y .2d 526, 529 (1975). The only relevant state right in terveners possess is the right to challenge the settlem ent on the grounds tha t the m anner in which it provides for appoin tm ents is unlaw ful, arb itrary , and capricious, or constitutes an abuse o f discretion. Burke v. Sugarman, 35 N .Y .2d 39, 42 (1974); Adelm an v. Bahou, 85 A .D .2d 582, 863, 446 N .Y .S .2d 500, 502-03 (3d D ep’t 1981). This right in- terevenors exercised in the district court. 3. Race-Conscious Prom otional Appointm ents. The race-conscious appoin tm ent procedures envisaged by the settlem ent are not unreasonable or illegal. Recog n i z i n g tha t full com pliance with T itle VII cannot be realized until all the discrim inatory effects o f a challenged em ploym ent practice are erased—in this case until the adverse im pact resulting from the d isp roportionate num ber o f non-m inority appointm ents already m ade is rem e died—we have held th a t interim race-conscious selection procedures tha t do not have a d isparate im pact on any group protected by Title VII are appropria te to bring a defendan t into com pliance with T itle V II. Berkman v. City o f N ew York, supra, N o. 82-7654, slip op. at 2722-23; Association Against Discrimination in Em ploy m ent, Inc. v. City o f Bridgeport, 647 F .2d 256, 278 (2d C ir. 1981), cert, denied, 455 U .S . 988 (1982); Guardians s^sso c ia tio n o f New York City Police Department, Inc. v. Civil Service Commission, supra, 630 F.2d at 108-09; see also Regents o f University o f California v. Bakke, supra, 438 U .S . at 362 (Brennan, J., concurring in part and dissenting in part). Interim race-conscious selection p ro cedures do not have a disparate im pact on any protected group when (1) they m andate the appoin tm ent o f mem- 33a bers o f the plaintiff-class who are victims o f the defen dan t’s discrim ination, and (2) they calculate the num ber of victims to be appo in ted—in relation to the to ta l num ber of interim appointees— by reference to the percentage of the victims within the to ta l applicant pool. Berkman v. City o f New York, supra, No. 82-7654, slip op. at 2722-23; Guardians Association o f New York City Police Department, Inc. v. Civil Service Commission, supra, 630 F.2d at 109, 113. Because such interim selection proce dures do not go beyond the simple elim ination o f the challenged practice’s d isparate im pact, they are not u n lawful quotas and are justified whenever a Title VII violation has occurred. Berkman v. City o f New York, supra, No. 82-7654, slip op. at 2723; Association Against Discrimination in Em ploym ent, Inc. v. City o f Bridge port, supra, 647 F .2d at 278. The agreem ent’s race-conscious prom otional proce dures are sim ilar to the lawful remedies described above. They are interim in nature since they will end after corrective m easures are im plem ented and will then be followed by a valid selection procedure. See Guardians Association o f N ew York City Police Department, Inc. v. Civil Service Commission, supra, 630 F.2d at 110. M ore over, they do not have a disparate im pact on any p ro tected group. The agreem ent provides, subject to certain noted exceptions, tha t fu ture prom otions will be offered first to m inority candidates until the ratio o f m inority appointm ents equals 21% , a percentage approxim ately equal to the percentage o f m inority candidates on the eligibility list. Because the appointm ent o f only 32 m inor ity candidates is required to reach the 21% goal, see note 9 supra, the non-m inorities on the list will not be unduly barred from prom otion . The burden on non-m inority candidates is fu rther lessened by the fact th a t, regardless 34a of the 21 °7o goal, no m inority candidate in a lower zone will receive an appoin tm ent until all candidates in the highest zone have been offered appoin tm ents. A fter the 21% goal is reached, m inority candidates will receive appoin tm ents in a ratio o f 1 to 4, reflecting the percent age o f m inorities on the eligibility list. Accordingly, be cause for a period only m em bers o f the p la in tiff class will be offered appoin tm ents, and because the ratio o f m inor ity appoin tm ents will not exceed the m inority representa tion o f the to ta l cand ida tes p oo l, the ag reem en t’s race-conscious remedies are substantially related to and Jo not go beyond the goal o f elim inating Exam 36-808’s adverse im pact. 4. The Duration o f the Eligibility List. We tu rn finally to the contention presented by amici curiae tha t the portion o f the settlem ent which sets no discernible limit on the life o f Exam 36-808’s eligibility list unnecessarily tram m els the interests o f all DOCS em ployees, regardless o f race, not on the curren t eligibil ity list but eligible to take the next exam ination for p rom otion to C orrection L ieutenant. Specifically, the agreem ent calls for the list to continue “ until every eligible on the 36-808 List has been offered an appoint- : aent and has been affo rded a reasonable opportun ity to ''"-'either accept or decline.” Settlem ent A greem ent art. VI(5)(c). Judge G riesa, noting th a t “ [njone o f the parties, has offered any evidence as to w hat length o f tim e will be involved in th is,” 552 F. Supp. at 670, did not reach any conclusion as to the probable life o f the list.20 O n appeal, 20 The issue of the eligibility list’s duration was not argued in the hearings before Judge Griesa as no one representing the rights of employees not on the list participated in the hearings. 35a all the parties have offered speculative and often co n tra dictory estim ates o f the anticipated life o f the list, with 3 or 4 years at the low end o f the range and 16 years at the high end. The argum ent o f those employees represented by amici is grounded on New York Civil Service Law § 56, which limits the duration o f an eligibility list to four years. See N.Y. Civ. Serv. Law § 56 (M cKinney 1983). New York’s purpose in placing a cap on the du ration o f eligibility lists is to insure tha t all appointm ents to the classified civil service be based on m erit and fitness. See N.Y. Const, art. V, § 6. The New York C ourt o f A ppeals has stated: “ As time passes, [the eligibility list’s] value as a test o f m erit and fitness dim inishes. O thers may, then, be better p re pared and m ore fit to fill a position than those who are upon the list.” Hurley v. Board o f Education, 270 N.Y. 275, 280 (1936). A lthough the employees represented by amici are no t currently on any eligibility list, they m ay compete for p rom otion when they achieve the requisite qualification. See Edgerton v. New York State Civil Service Commission, 84 A .D .2d 881, 444 N.Y.S.2d 731 (3d D ep’t 1981).21 Accordingly, they contend that their career interests in seeking a prom otion will be unnecessar ily tram m eled if the eligibility list is in effect m ore than four years. Cf. Vulcan Society o f New York City Fire Department, Inc. v. City o f New York, supra, 96 F.R .D . at 631. While courts m ust be sensitive to the interests o f all affected th ird parties before approving Title VII settle- 21 E d g e r to n v. N e w Y o rk S ta te C iv il S e rv ic e C o m m is s io n , 84 A.D.2d 881, 444 N.Y.S.2d 731 (3d Dep’t 1981), was a state Article 78 applica tion brought by DOCS Correction Sergeants, some of whom are intcrvenors in this action, which successfully compelled CSC to ad minister Exam 36-808 on October 3, 1981. 36a m ents, United Steelworkers o f America v. Weber; supra, 443 U .S. at 208, we see no reason to d isturb Judge G riesa’s approval on this po int since there is now no basis for determ ining w hether it will take m ore than four years for the curren t eligibility list to be exhausted. However, since we trea t court o rdered stipulations im plicating the operations o f state agencies as though they are in junc tions issuing from the district court, see Pena v. New York State Division fo r Youth, No. 82-7876, slip op. at 4065 (2d Cir. M ay 25, 1983); see also Carson v. American Brands, Inc., supra, 450 U .S. at 89 (Title VII class settlem ents are to be treated as in junctions for purposes o f appeal); Plumm er v. Chemical Bank, supra, 668 F.2d at 659 (sam e), employees represented by amici may, after a reasonable tim e and in light o f subsequent develop m ents, m ove for m odification o f the settlem ent agree m ent in the district court. See United States v. Sw ift & Co., 286 U .S. 106, 114-15 (1932); N ew York State A sso ciation fo r Retarded Children, Inc. v. Carey, N os. 82- 7441, 82-7591, slip op. at 2763-64 (2d Cir. M arch 31, 1983). Because New York law allows the state to extend eligibility lists to a m axim um of 4 years, Roske v. Keyes, 46 A .D .2d 366, 363 N.Y.S.2d 21 (2d D ep’t 1974); N.Y. Civ. Serv. Law § 56 (M cKinney 1983), and because the s ta tu to ry period does not begin to run until a challenged list is approved by the court, M ena v. D ‘Am brose, 44 N.Y.2d 428 (1978), a reasonable tim e for the considera tion o f any m odifica tion 'app lica tion will only com mence four years from the date o f the district c o u rt’s order. A ffirm ed. lb Appendix B—O rder o f the U nited States C ourt o f Appeals Denying Rehearing. U N ITED STATES C O U RT O F A PPE A LS, Se c o n d C ir c u it . A t a stated term o f the U nited States C ourt o f A ppeals, in and for the Second Circuit, held at the U nited States C ourthouse, in the City o f New Y ork, on the twenty-seventh day o f July, one thousand nine hundred and eighty-three. -------------------« ------------- E d w a r d L. K ir k l a n d , et al., Plaintiffs-Appellees, , v. Th e N ew Yo r k St a t e D e p a r t m e n t o f C o r r e c t io n a l Se r v ic e s , et al., Defendants-Appellees, F r e d e r ic k E . A l t h is e r , et al., In tervenors-A ppellan ts-A ppel lees, ROBERT J. M c C l a y , et al., In terven ors-A ppellees-Appellan ts. N os. 82-7830 82-7874 ------------------ • --------------- 2b A petition for rehearing containing a suggestion tha t the action be reheard in banc having been filed herein by counsel for the intervenors-appellants-appeliees, Frederick E. A lthiser, et a i , U pon consideration by the panel tha t heard the appeal, it is O rdered tha t said petition for rehearing is DENIED. It is fu rther noted th a t the suggestion for rehearing in banc has been transm itted to the judges o f the court in regular active service and to any other judge on the panel th a t heard the appeal and that no such judge has requested tha t a vote be taken thereon. A . D A N IEL FU SA RO , Clerk V ic t o r ia C. D a l t o n by D eputy Clerk lc A PPE N D IX C —Decision o f the U nited States D istrict C ourt, D ecem ber 1, 1982. Edward L. KIRKLAND, Joseph P. Bates, Sr., A rthu r E. Suggs, each individually and on b ehalf o f all o th e rs sim ilarly situated , P lain tiffs, v. T he NEW YORK STATE DEPART M ENT OF CORRECTIONAL SERVICES; Thom as A. Coughlin, III, individually and in his capacity as Comm issioner of the New York S ta te D epartm ent o f Correc tional Services; The New Y ork S tate Civil Service Commission; Joseph Valenti, individually and in his ca pacity as P residen t of th e New York S ta te Civil Service Commission and Civil Service Commissioner; Josephine Gambino and Jam es M cFarland, each individually and in h is /h e r capacity as Civil Service Commissioner, Defend an ts . No. 82 Civ. 0295. United S tates D istrict Court, S.D. New York. Dec. 1, 1982. 2c Motion was made to approve class ac tion settlem ent in employment discrimina tion action. The District Court, Griesa, J„, approved settlem ent which contained agree m ent to ad just present eligibility list to correct for disproportionate racial impact and provision for development of new selec tion procedures for promotion to correction lieutenant and correction eaptain a fte r cur ren t lieutenant eligibility list had been ex hausted by the New York S ta te D epart m ent of Correctional Services. Ordered accordingly. L Federal Civil Procedure ©=>1699 In suit brought on behalf of black and Hispanic correction officers challenging le gality of promotional exam ination given for position of correction lieutenant, approval was given to class action settlem ent which adjusted eligibility list to correct for dispro portionate racial impact and contained a provision for development of new selection procedures for promotion to correction lieu ten an t and correction captain a f te r current lieutenant eligibility list had been exhaust ed since proponents of settlem ent made suf ficient showing of serious questions of ra cial discrimination to justify remedy and settlem ent did not violate New York Con stitu tion or sta te Civil Service Law since reorganization of the rank-order eligibility list into zones was reasonable. N.Y.Const Art. 5, § 6; N.Y. McKinney’s Civil Service Law §§ 50-52, 6L 3c 2. Civil Rights ©=*43 Statistical showing of disproportionate racial impact creates presumption of Title VII discrimination. Civil Rights Act of 1964, § 701 e t seq., as amended, 42 U.S.C.A. § 2000e e t seq. 3. Civil Rights <£=>43 In Title VII action relating to employ m ent testing, where statistical showing cre ates presumption of Title VII discrimina tion, defendants m ust come forward with proof th a t te st is job related or otherwise court is obligated to render a decree in favor of plaintiffs. Civil Rights Act of 1964, § 701 e t seq., as amended, 42 U.S.C.A. § 2000e e t seq. 4. Federal Courts ©=*411 S tate law must yield to federal law in Title VII case. Civil Rights Act of 1964, § 701 e t seq., as amended, 42 U.S.CLA § 2Q00e e t seq. 5. C onstitu tional Law ©=>277(2) Position on an eligibility list is not a vested property righ t protected by due process. U.S.C.A. Const.Amend. 14. NAACP Legal Defense Fund by 0 . Peter Sherwood, New York City, for plaintiffs. Robert Abrams, A tty. Gen., S tate of N.Y. by B arbara B. Butler, New York City, for defendants. Rowley, Forrest & O’Donnell by Richard R. Rowley, Albany, N.Y., for Altbiser inter-, venors. Beck, H alberg & Williamson by H erbert B. Halberg, New York City, for McClay intervenors. OPINION GRIESA, District Judge. This is a motion under Fed.R.Civ.P. 23(e) to approve a class action settlem ent. The motion is granted. The Action The suit is brought on behalf of black and hispanic Correction Sergeants in the New York State D epartm ent of Correctional Services, challenging the legality of Promo tional Examination No. 36-808, given for the position of Correction L ieutenant (G - 20) on October 3, 1981. The claim is tha t the te st and the resulting eligibility list are racially discriminatory in violation of the Fourteenth Amendment of the United S tates Constitution, 42 U.S.C. §§ 1981 and 1983, and Titles VI and VII of the Civil R ights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. The complaint seeks de claratory and injunctive relief, as well as damages in the form of back pay for al leged past discrimination. D efendants are officials in the New York D epartm ent of Correctional Services and the New York Civil Service Commission. They have answered denying any unlawful discrimination, and asserting the validity of the te st and the resulting eligibility list. 5c The action was commenced on January 15, 1982. A fter discovery, followed by ex tensive negotiations, a settlem ent agree m ent was entered into in A ugust 1982. I t is this agreem ent which is the subject of the present application. Notice of the proposed settlem ent was properly given. A hearing was scheduled for September 29, 1982. By the time of th a t hearing no objections were received from any members of the class. However, over 200 w ritten objections were received from non-class members— i.e., white correc tional officers. In addition, two groups of white correctional officers, each represent ed by counsel, moved to formally intervene in the action. On September 29, 1982 the court g ran ted the motions to intervene, specifying th a t the interventions would be solely for the purpose of objecting to the proposed settlem ent. Additional hearings were held on October 4 and October 14, 1982. Briefs have been received from both the plaintiffs and the original defendants in support of the pro posed settlem ent. The intervenors have subm itted briefs in opposition. On November 9, 1982 the court entered an order approving the se ttlem en t The order s ta ted the court’s conclusion th a t the settlem ent is fair, reasonable and lawful in all respects, and th a t the objections to the settlem ent, including the claims of constitu tional defects, are w ithout merit. The or der stated th a t an appropriate opinion would be issued in due course. 6c Factual Background The present case m ust be considered in the context of a prior action brought by Kirkland e t al., in which they challenged the promotional examination for the posi tion of Correction Sergeant. The action was commenced in 1973 in this court, and was tried before Judge Lasker, who found th a t the examination was racially discrimi natory. Kirkland v. New York State De partment o f Correctional Services, 374 F.Supp. 1361 (S.D.N.Y.1974). Judge Lasker directed th a t the S tate institute a new se lection procedure for Correction Sergeant, and in addition imposed a perm anent hiring ratio for minorities. Pending the institu tion of this procedure, he required an inter im ratio. On appeal, the Second Circuit affirmed the finding of the unconstitutionality of the exam ination, but reversed the imposition of a perm anent minority ratio. I t should be noted, however, tha t the Court of Appeals upheld the interim ratio. “The court directed tha t a t least one out of four persons so promoted must be members of the p lain tiff class. Since this portion of the decree is interim in nature, does not m andate the m aking of any pro motions, does not disregard an existing civil service -eligibility list, and since its benefits are limited to the mem bers of p la in tiffs class, we affirm it as not being 7c an abuse of the D istrict C ourt’s discre tion.” Kirkland v. New York State De partm ent o f Correctional Services, 520 F.2d 420, 429-30 (2d Cir.1975). The Court of Appeals rem anded for the development of a non-discriminatory te s t ing procedure w ithout the use of a perm a nent ratio. [1] Following the rem and, the S ta te de veloped a new testing procedure consisting of tw o parts: first, a w ritten te s t primarily designed to assess verbal skills; second, per formance ratings made by the applicant’s departm ental superiors. The w ritten te s t was adm inistered. The resu lting scores of the m inority applicants were, on the aver age, som ewhat lower than the scores of the white applicants, based on a “criterion-vali dation study.” As a consequence, the Cor rections D epartm ent re-scored the tests by adding 250 points for every m inority appli cant. In fu rth e r proceedings before Judge Lasker, a group of white correctional offi cers was perm itted to in tervene to chal lenge the 250-point ad ju s tm en t Judge Lasker g ran ted sum m ary judgm ent in favor of th e original parties to the action and against the intervenors. The Court of Ap peals a ffirm ed Kirkland v. N ew York State Department o f Correctional Services, 628 F.2d 796 (2d Cir.), c e r t denied, 450 U.S. 980, 101 S .C t 1515, 67 L.Ed.2d 815 (1981). The Court held th a t the 250-point adjust m ent was not illegal as creating a “quota” 8c since it did not “require th a t a minimum num ber of sergeant appointm ents be given to any members of a minority group.” 628 F.2d a t 798. In the previous Court of Appeals opinion, there was a dictum criticizing w hat was referred to as “bumping” from a preferred position on an eligibility list because of ra cial considerations. 520 F_2d a t 429. In the second Court of Appeals opinion, the Court explained th a t this earlier discussion related solely to stric t racial quotas. The Court sta ted th a t the steps taken by the D epart m ent of Corrections in connection with the revised selection procedure " . . . do not constitute de ju re or de facto quotas. This program does not bump white candidates because of their race bu t ra ther reranks their predicted per formance as -estimated by the combined te s t score and job perform ance ratings.” 628 F.2d a t 798. Finally, the Court gave its overall approval to all phases of relief as finally arrived a t a f te r the remand, “ including quotas in in terim appointm ents.” Id The promotional exam ination for Correc tion Lieutenant, which is a t issue in the present case, was adm inistered in October 1981. The S tate relied strictly on a w ritten test, and did not establish any procedure for performance ratings, as had been done in the reformed selection for sergeants. The results of the te st for minority and non-mi nority applicants were as follows: 9c Minority Non-Minority Took Teat 169 (22.9%) 570 Passed Test 148 (22.0%) 527 Plaintiffs in the present case do not contend th a t the exam ination involves racial dis crimination on the basis of pass rate. The problem raised by plaintiffs relates to the rank-ordering based upon the relative scores of the applicants who passed the t e s t Plaintiffs have provided the following list, which shows the racial m akeup of various groups on the eligibility l is t Position No. %Min. No. Min. No. Non-Min. 1-107 5.6 6 1Q1 108-229 9.8 12 110 230-298 16.0 11 58 299-416 19.5 23 95 417-525 29.4 32 77 526-619 33.0 31 63 620-672 ' 47.2 25 28 Appointments from the eligibility list commenced in early January 1982. As of Ju ly 28, 1982, 202 non-minority applicants had been promoted to L ieutenant from the list, and only 20 minority applicants (9.0%). Plaintiffs contend th a t the total 222 ap plicants promoted as of Ju ly 28, 1982 is a statistically significant sample to indicate w hether or not the rank-order list improp erly discriminates on a racial basis. Plain tiffs ’ expert calculates the discrepancy be tw een minority and non-minority appoint m ents as of July 28, 1982 to be statistically significant to level of 5.86 standard devia tions (exceeding the .001 level oL,, confi dence). In Castaneda v. Partida, 430 U.S. 10c 482, 496, n. 17, 97 S.Ct. 1272, 1281, n. 17, 51 L.Ed.2d 498 (1977), the Supreme Court com mented on the use of statistics in determ in ing w hether a plaintiff, complaining- about racial discrimination under Title VII, has made out a prima fa d e case. The Court sta ted that, “if the difference between the expected value [from a random selection] and the observed num ber is g rea te r than two or three standard deviations,” a prima fa d e case is established. The same trend continued a fte r July 28, 1982. Counsel for intervenors represented th a t, as of September 2), 1982, 225 appoint ments to Lieutenant had been made, of which 21 (about 9%) were minority appli cants. The Settlement Agreement The settlem ent agreem ent contains two basic elements: first, measures to adjust the present eligibility list to correct for disproportionate racial impact; second, pro vision for the development of new selection procedures for promotion to Correction Lieutenant and Correction Captain a fte r the current L ieutenant eligibility list has been exhausted. Current Eligibility List I t is agreed th a t the curren t eligibility list will be used to fill vacancies in the position of Lieutenant until the list is ex hausted. None of the parties has offered any evidence as to w hat length of time will be involved in this. It is fu rther agreed 11c th a t all applicants who have already been appointed from the list will retain these appointments. The system of rank-order for fu rth e r ap pointm ents will be changed under the agreem ent. The persons who passed the te s t are to be grouped in three “zones” according to their scores (adjusted for the usual veterans and longevity credits). This grouping includes all those who have passed the test, including those who have already received appointm ents. The following ta ble shows the makeup of the zones: Score Rank No. in Zone Range Range Zone 1 82.5 + 1-247 233 2 78.0-82.0 248-525 2S6 3 73.0-77.5 528-672 153 The 225 i appointments which had been made as of September 29, 1982 were- mostly from Zone L For reasons th a t wilt appear from the discussion below, there are circum stances which result in promotions going to applicants in other than strict rank order. For fu tu re promotions from the revised eligibility list, the procedure will be as fol lows.1 All candidates within a particular zone will be trea ted as equally qualified, and a rank-order list will be m ade up based I. The basic features are contained in the settle ment agreement. However, certain further de tails described herein were provided by counsel at the hearing of September 29, 1982 and are contained in the minutes thereof. 12c upon a random assignment. O ffers of pro motion will be made first to those in the higher ranking zone. Such offers will be m ade first to minority applicants until the to tal percentage of minority appointees to all appointees reaches 21%, with the qualifi cation tha t, notw ithstanding the 21% ta rge t ratio, no m inority applicant in a lower rank ing zone will receive an offer until all appli cants, both minority and non-minority, in the higher ranking zone or zones have re ceived offers. Once the 21% has been a t tained, the offers will be made in a ratio of 4 to 1, non-minority to minority. When a vacancy occurs a t a given facili ty, it will be offered only to those appli cants who have designated a willingness to accept appointm ent a t that facility, or in the same general location. I f a vacancy occurs a t a facility or location which no minority applicant has designated, the posi tion will be offered to non-minority appli cants. Thus, depending on where a particu lar vacancy occurs, non-minority applicants may be chosen despite the fac t th a t the 21% ta rg e t ratio has not been achieved. An indication of the num ber of minority promotions th a t may be necessary to achieve the 21% targe t ra tio can be obtain ed by s ta rting with the 225 appointments made as of September 29, 1982 (204 non-mi nority and 21 minority). I f 32 minority appointments are made, the total appoint ments would be 257 of which 53 (or 21%) would be minority. 13c New Selection Procedures Following Ex haustion o f Current Eligibility List The settlem ent agreem ent requires the parties to cooperate in the development of new selection procedures for promotion to Lieutenant and Captain, to be used afte r the current eligibility list is exhausted. The objective is to avoid unfavorable racial im pact and ensure equal opportunity of ad vancement fo r both m inority and non-mi nority personnel The settlem ent agree m ent contains an express undertaking to a ttem pt the development of devices other than w ritten tests as components of the new selection procedure. The agreem ent provides fo r a number of detailed steps to ensure the validity of the selection proce dure. Reasonableness and Legality o f Settlement The settlem ent agreem ent in the present case is a logical outcome of the prior Kirk land litigation involving the procedure for promotion to Correction S e rg e a n t The Court of Appeals in tha t case approved an interim ratio for minority appointm ents de signed to deal with the specific problems of racial discrimination arising from the te s t in question. Also, on the rem and following the first Court of Appeals opinion, the State recognized th a t the rank-order list created by the new testing procedure still raised problems of racial discrimination, and the S tate voluntarily adjusted the scores of the minority applicants to improve their posi tion on the l is t In its second opinion, the 14c Court of Appeals upheld this adjustm ent. Another feature of the Sergeants’ litigation was the development of new selection pro cedures departing from sole reliance on a w ritten examination. This was also ap proved by the Court of Appeals. Thus, the basic features of the settlem ent agreem ent in the present case find clear precedent in the Sergeants' litigation—de parture from a stric t rank-order eligibility list based on test results; an interim ratio for minority promotional appointments; and development for the long term of a new selection procedure. The present settlem ent agreem ent is not only justified by legal precedent, bu t is inherently reasonable and sound as a m at te r of policy. The benefits to plaintiff class of minority applicants inevitably result in some detrim ent to non-minority correction al officers competing for promotion to the rank of Lieutenant. However, the benefits to plaintiff class are modest and are care fully tailored to the precise problem raised by them in the litigation. By the same token, the detrim ent to the non-minority applicants is also modest and is in fact considerably less than w hat might have oc curred if plaintiffs had pressed their litiga tion to the end and not agreed to a settle ment. The first point to be made in this regard is th a t the strict rank-order list originally resulting from the Lieutenant test involved differentiations am ong the candidates 15c which were altogether arbitrary . I t is rec ognized as an obvious fact th a t slight dif ferences in the scores achieved mean v irtu ally nothing as fa r as the m erits of the candidates respecting performance of duty. I t is equally obvious th a t ranking according to zones, as will be done under the settle ment agreem ent, will involve a fa r more realistic recognition of w hat the test scores mean regarding the actual m erits of the candidates. I t is, of course, true th a t there is serious doubt about the entire concept of a w ritten test as the criterion for the rank ing of candidates for positions such as the one in question. However, the zone system is a t least a step towards a realistic solution to th a t problem. If the settlem ent agree m ent provided only for the grouping of the applicants in zones, and the ranking within the zones by random selection, the settle m ent agreem ent would involve a tru ly “col or-blind” rank order list. However, if the settlem ent agreem ent w ent no fa rth e r than this, i t would provide no remedy for the disproportionate number of non-minority applicants in the promo tions which have already been made. I t should be noted that, i f the litigation had proceeded to its conclusion and plaintiffs had prevailed, all o f those appointments could well have been declared null and void. The settlem ent agreem ent takes a much more modest approach. All of the appoint ments thus fa r made (225 as of September 29} will remain in effect. W hat is provided in the settlem ent agreem ent to adjust the 16c balance is th a t, subject to certain details previously noted, fu tu re appointm ents will be offered first to m inority applicants until the ratio of minority appointm ents will equal 21% of the whole. This does not deny promotion to any of the rem aining non-mi nority applicants. A t most, it postpones the promotion of such applicants initially until approxim ately 30 minority applicants have received appointments. A fte r the ta rg e t ra tio is accomplished, non-minority appli cants will receive four appointments for every minority appointm ent This is rough ly the racial composition of those who passed the te s t I t is hardly a substantial detrim ent to the non-minorities. W ith regard to the development of new selection procedures following the exhaus tion of the curren t eligibility list, the settle m ent agreem ent is em inently sound. I t envisages departure from the sole use of th e w ritten te st and the development of racially neutral selection procedures better designed to relate to the m erits of candi dates in regard to job performance. The two principal contentions of the ob jectors in opposition to the settlem ent agreem ent are as fellows: First, they contend that, before any affirm ative relief may be granted to plaintiff class, there must be a full trial regarding the issue of the racially dis crim inatory nature of the exam ination in question and the eligibility list. This means, according to the objectors, not 17c merely a statistical showing of racially disproportionate impact, bu t also a trial and judicial determination on the ques tion of the job-related nature of the ex am ination. The objectors urge that, even if the S ta te does not desire to prove the job-relatedness of the examination, the objectors themselves should have the op portunity to do so.2 Second, even if the record would justi fy the g ran ting of some relief to plaintiff class by w ay of settlem ent, the racial preferences granted to the minority ap plicants under the settlem ent agreem ent violate both the Federal Constitution and the state Civil Service Law. Proper Basis fo r Settlement i The objectors’- first contention flies in the face of an age-old judicial policy favoring voluntary settlem ent of litigation. The courts have specifically espoused this policy 2. Objectors also argue in their briefs that in addition to proof of disproportionate impact and a lack of job-relatedness of the test in question, there must be a demonstration of “past egregious racial discrimination” teg., purposeful discrimination) before affirmative relief may be approved in a Title VII context, relying on Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The cita tion of the latter case is misplaced, since it dealt with standards under the Equal Protec tion Clause. The court stated there that the requisite showing under Title Vli involved a lesser standard than that required under the “constitutional rule.” 426 U.S. at 238-39, 96 S.CL at 2047. 18c in connection with Title VII actions. In deed, the Supreme Court made clear in A l exander v. Gardner-Denrer Co., 415 U.S. 36, 44, 94 S .C t 1011, 1017, 39 L.Ed.2d 147 (1974), th a t voluntary settlem ents of Title VII actions are “the preferred means for achieving [the statu tory] goals . „. [of] as- surfing] equality of employment opportuni ties by elim inating those practices and de vices th a t discriminate on the basis of race.” In this regard , the Supreme Court noted recently th a t a refusal to approve a pro posed settlem ent decree under Title V II is an appealable order because such refusal undermines a fundam ental policy underly ing Title V II by denying the parties the opportunity to compromise th e ir claims and to obtain prom pt injunctive relief contained in the settlem ent agreem ent they have ne gotiated. Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S .C t 993, 998, m 14, 67 L.EdJM 59 (1981). The courts have stated th a t the settle m ent of a Title VII action is entitled to a presumption of validity when objections are made to such a se ttlem en t United States v. City o f Miami, 664 F.2d 435, 440 (5th Cir.1981) (en banc); United States v. City o f Alexandria, 614 F.2d 1358, 1362 (5th Cir. 1980). In Title VII class actions, it has been said th a t there is a “strong presum p tion in favor of se ttle m e n t” Guardians Association o f New York City v. Civil Ser vice Commission, 527 F.Supp. 751, 757 (S.D. N.Y.1981).* 3. The litigation by the Guardians Association occurred in several stages. The above opinion will hereafter be referred to as “G uard ians II.” 19c The objectors rely mainly on two authori ties as supporting their f irs t contention. They cite Patterson v. Newspaper and Mail Deliverers’ Union o f New York, 384 F.Supp, 585 (S.D.N.Y.1974).4 This was a Title VII action (although not a testing ease) which was settled a fte r four weeks of t r ia l Judge Pierce handed down an opinion ap proving the settlem ent. The objectors in the p resent case rely on the following sta te m ent from the opinion: “[A lthough the court is of the opinion th a t even a t this late stage public policy is served by an agreem ent ra th e r than an adjudication, a more searching discussion of the m erits is w arranted. In fact, the sta te of law in this circuit may require certain findings of fact to support affirm ative action In a Title VII case even where i t is resolved by settlem ent.” 384 F.Supp. a t 588. There is nothing whatever in this statem ent which indicates tha t a Title V II action can not be settled before trial, or th a t in a Title VII testing case there must be trial and judicial findings on all phases of the m erits of the case before the action can be settled. Judge Pierce was simply making appropri ate findings regarding the reasonableness and legality of the settlem ent before him, since objections were posed to th a t settle ment. Since Judge Pierce had the benefit of a record of four weeks of trial, he natu rally availed himself of th a t record to make detailed findings. 4. Affd 514 F.2d 767 (2d Cir.), cert, denied, 427 U S. 911. 96 S.Ct. 3198. 49 L.Ed.2d 1203 (1976). 20c The other authority cited by the objectors is United States v. City o f Miami, 614 F.2d 1322 (5th Cir.1980), rev ’d in part, 664 F.2d 435 (5th Cir.1981) (en banc). In the panel decision, 614 F.2d 1322, the court of appeals affirm ed the district court’s approval of a consent decree in a T itle VII action brought by the G overnm ent This consent decree purported to bind a labor union, which was named as a defendant in the action and which had not agreed to the consent decree. The case was reheard en banc, resulting in a ruling th a t the union could not be bound by the consent decree insofar as the decree adversely affected the union’s rights under a collective bargaining ag reem en t 664 F.2d a t 442. City o f Miami is of little assistance to the objectors in the present case. City o f Mi ami stands for the obvious proposition th a t a consent decree cannot bind a defendant who does not consent In the present case all the defendants in the action have agreed to the se ttlem en t The objections come from persons who were not named as de fendants, but who claim th a t they will be affected by the relief provided for in the settlem ent agreement. This presents a dif fe ren t problem from w hat was dealt with in the holding in City o f Miami. I t is of in terest to note th a t the plurality opinion in City o f Miami contains a dictum referring to the la tte r problem—the ques tion of the adverse effect of a consent de cree or settlem ent upon persons not parties to the litigation. This dictum recognizes 21c the power of a court to approve such a consent decree or settlem ent as long as the court gives due consideration to such ad verse effect and finds,, on balance, th a t “the effect on them is neither unreasonable nor proscribed.” 664 F.2d a t 441. Although settlem ents of Title VII litiga tion are favored and are accorded a pre sumption of validity against objections, nevertheless it m ust be recognized that, to the ex ten t th a t such settlem ents accord preferences to ■minorities, there will usually be some detrim ent to non-minorities. These non-minorities are often not parties to the litigation. Consequently, a settle m ent of a Title VII class action may well raise issues of a broader nature than are involved in th e usual class action settle m ent, where basically only the immediate parties are affected, and where the main consideration of the court in assessing the settlem ent is adequacy to the members of the class. In the present case, regardless of how m oderate is the preference given to the minority members of p lain tiff class, and how modest is the detrim ent to the non-mi nority correction officers, there is some det rim ent to the la tter. Consequently, it is necessary th a t there be a reasonable basis for imposing such detrim ent. Clearly, if there were no bona fide ques tion of racial discrimination, and if nothing were being done but to provide a gratuitous preference for blacks and hispanics, there 22c would be no basis for court approval of such an arrangem ent under Title VII. Certainly there m ust be a showing in some form th a t there is a t least a serious claim of racial discrimination against the p lain tiff class, before a settlem ent can be approved which adversely affects non-minority persons. [2,3] H ere, p lain tiff class has made such a showing. P laintiffs have established a prima facie case of Title VII employment discrimination through their uncontested statistical dem onstration of disproportion ate racial im pact respecting the eligibility list. Such a statistical showing creates a “presumption of Title VII discrimination.” Guardians Association o f New York City v. Civil Sendee Commission, 630 F.2d 79, 88 (2d Cir.}, cert, denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981) (“Guardi ans I ”).5 In a Title VII action relating to employment testing, where such a showing has been made, the defendants m ust come forw ard w ith proof th a t the te st is job-re lated, or otherw ise the court is obligated to render a decree in favor of the- plaintiffs. Guardians I, supra, a t 88; Texas Depart m ent o f Community A ffairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). In the present case defendants have cho sen not to litigate the job-relatedness of the te s t and the eligibility list, bu t have chosen the path o f voluntary settlem ent. There is ample authority in favor of settlem ent of Title VII class actions under these circum stances. 5. See footnote 3 supra. 23c The action o f the S ta te in se ttlin g the p resen t case is, in principle, a vo lun tary adoption o f an a ffirm ative action plan. T herefore certa in discussion in Regents o f University o f California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), is r e le v a n t T here th e Suprem e C ourt held th a t a p erm an en t racial qu o ta in a s ta te un iversity system should be struck down, b u t also held th a t th e system is not consti tu tionally foreclosed from in s titu tin g cer ta in kinds o f racial considerations and p ref erences in adm issions procedures. 438 U.S. a t 320, 98 S.Ct. a t 2763. In th e ir concurring and d issen ting opinion, Justices B rennan, M arshall, W hite and Blackmun m ade th e follow ing s ta te m e n t (such s ta tem en t being p a r t o f th e ir concurrence): “ Indeed , th e requ irem en t of a judicial de term ina tion o f a constitutional or s ta t u to ry violation as a predicate fo r race conscious rem edial actions would be self- defea ting . Such a requ irem ent would se verely underm ine e ffo rts to achieve vol u n ta ry com pliance w ith th e requ irem ents of law. And, ou r society and ju risp ru dence have alw ays stressed th e value of vo lun tary e ffo rts to fu r th e r the objec tives of th e law. Judicial in terven tion is a la st re so rt to achieve cessation o f illegal conduct or the rem edying o f its e ffec ts ra th e r th a n a prerequisite to action.” 438 U.S. a t 364, 98 S .C t a t 2786u In United States v. City o f Alexandria, 614 F.2d 1358 (5th Cir.1980), the court of appeals approved a consent decree in a T itle 24c VII case, and rejected the argument that, before such a decree could be entered, the employer m ust first be adjudged guilty of discrim inatory employment practices. The court stated: “ We have never heard of any doctrine of law which requires a defendant to pu t on a defense to rebut a prim a facie case . . . . The defendant may simply claim th a t the p la in tiff’s case is insufficient, and choose to present no evidence. I f this had oc curred in the Instant case or if the evi dence presented by the defendants had been insufficient to rebu t the govern m ent’s case, the trial court would have been obligated to en ter a deeree against the defendants.” 614 F.2d a t 1364. In Prate v. Freedman, 583 F.2d 42 (2d Cir.1978), th e Second C ircuit dea lt w ith a collateral a tta c k made upon a Title V II consent ju d g m en t by persons who were no* parties to th e action b u t who were affected by th e judgm en t. These parties argued th a t a plan fo r preferential m inority hiring in the ju d g m e n t was unsupported by a suf fic ien t show ing of unlawful discrimination The cou rt rejected this conic:: ‘ > rn, holding th a t adm ission of “dispropor? .. ie imp? * u n reb u tted by any suggests* c -at the ;■ re te sted practices were 'job-related ' ao ic jn .cu to an adm ission of unlawful discriraina for purposes of Title VII." 583 F.2d a t 47. Moreover, th e court noted: “Our decision in United States v. Wood, 'Wire & A!eUd .alt ers Union [471 F ed 408, 413 (F. CO.}, -r d e n ie d , 412 U.8. 939. 93 S.C’F 27"': 25c L.Ed.2d 398 (1973)] foreclosed th e a rg u m en t th a t p referen tia l h iring re lief m ay only be based on a form al find ing of p as t discrim ination made a f te r an ev identiary hearing .” Id. a t 47, n. 4. In Vulcan Society v. Fire Department o f White Plains, 505 F.Supp. 955 (S.D.N.Y. 1981), Ju d g e Sofaer approved a se ttlem en t of a T itle V II action. A portion of th a t se ttlem en t involved h iring procedures fo r th e N ew Rochelle fire d e p a r tm e n t Ju d g e S ofaer noted th e existence of a prima facie case in favor of p la in tiffs on th e basis of uncontested statistics, and s ta te d th a t th e “ racial im balance . . . is substan tia l enough to ju s tify th e volun tary adoption of a h iring ra tio designed to elim inate the d isparity .” 505 F.Supp. a t 962. Similarly, in Guardians II, 527 F.Supp. 751, 757 (S.D.N.Y.1981), Ju d g e C arte r approved a se ttlem en t of a T itle V II te s tin g action on th e basis th a t p la in tiffs had established a prima facie case and th e re had been bona fide arm s-length bargain ing . The elem ents found in the Vulcan and Guardians cases a re p resen t in th e case a t bar. Thus, on th e basis of both reasoning and precedent, it is c lear th a t the objectors can no t force the defendan ts in th is action to a tr ia l of p la in tiffs’ claims, nor do th e objec to rs have any r ig h t to defend these claims them selves. The proponents of th e se ttle m en t ag reem en t have m ade a suffic ien t show ing of serious questions of racial dis crim ination under T itle V II to ju s tify a rem edy which affords carefully m easured em ploym ent preferences to p la in tiff class. 26c Lawfulness o f Remedy The objectors contend th a t th e proposed se ttlem en t violates both the New York Con s titu tion an d the s ta te Civil Service Law by dep artin g from the principle th a t prom o tions in th e s ta te Civil Service a re to be m ade by com petitive exam ination. Both the N ew York C onstitution and th e Civil Service law require th a t prom otions shall be according to m erit and fitness, to be ascertained , as fa r as practicable, by com petitive exam ination. See New York S ta te C onstitution, A rt. V, § 6; Civil Ser vice Law §§ 50-52, 61. However, neither the constitu tion nor the s ta tu te specifies any particu la r m ethod of exam ination or grad ing . See Matter o f Katz v. Hoberman, 28 N.Y.2d 530, 532, 319 N.Y.S.2d 73, 267 N .E.2d 886, cert, denied, 404 U.S. 881, 92 S .C t 203, 213, 30 L.Ed.2d 163 (1971); Mat ter o f Mitchell v. Poston, 41 A.D.2d 886, 342 N.Y.S.2d 482 (4th Dep’t 1973). The reo rga nization o f th e rank-order eligibility list in th e p resen t case into zones is a reasonable s tep on the p a r t of the Civil Service Com mission to m ake the list accord w ith m erit and to have a rb itra ry and u n fa ir rankings elim inated. See Matter o f Sullivan v. Tay lor, 285 A.D. 638, 639, 140 N.Y.S.2d 58 (1st D ep’t 1955). [4] In so far as the 21% and one-to-four ra tio s are concerned, it is unnecessary to de te rm in e w h e th er they w ould be in accord ance w ith s ta te law. I t is clear th a t s ta te law m ust yield to federal law in a T itle V II case. See Guardians I, 630 F.2d a t 104-5. 27c This b rings us to th e question of w hether th e ratios provided fo r in the se ttlem en t ag reem en t in th e p resen t case are valid u nder federa l law. I t is c lear th a t they are. [5] The objectors contend th a t th e ir po sitions on th e original rank-o rder eligibility list constitu te vested p ro p erty righ ts, which would be tak en aw ay w ithou t due process of law by th e se ttlem en t ag reem ent. This a rg u m e n t is wholly w ithou t m erit. A posi tion on an eligibility list is no t a property r igh t. The N ew York C ourt o f Appeals has held th is to be so under both the New York and F edera l C onstitutions. Cassidy v. Mu nicipal Civil Service, 37 N.Y.2d 526, 529,375 N.Y.S.2d 300, 337 N.E.2d 752 (1975). The objectors fu r th e r contend th a t th e 21% and four-to-one ra tios a re “quotas” fa voring th e m inority applicants, which vio la te the equal protection rig h ts of the non m inority applicants. This a rg u m en t is also w ithou t m erit. A num ber of decisions, som e of them cited by th e objectors, condem n th e use o f racial quotas except under p a rticu la r c ir cum stances. See, e.g., Kirkland v. New York State Department o f Correctional Services, 520 F.2d 420, 427-30 (2d Cir.1975); Guardians I, 630 F.2d a t 108—9. I t is not necessary here to engage in any full discus sion o f w hat it is th a t constitu tes an unlaw ful quota. The essential point, for present purposes, is th a t the se ttlem en t agreem ent in th is case is not such a quota. The au thorities leave no doubt abou t this. 28c A t the ou tse t, It Is of in te re s t th a t the Second C ircuit has specifically recognized th e a rb itra ry n a tu re of a s tric t rank-order eligibility list based on a w ritten test. In the course o f its opinion in Guardians I, the court discussed w hat th e City of N ew York could have law fully done in d ep artin g from such a rank-order list: **[T]he em ployer can acknow ledge his ina bility to ju s tify rank-ordering and resort to random selection from w ith in the en tire group th a t achieves a p roperly deter m ined passing score, or some segm ent of th e passing group shown to be appropri a te . . . . S ince each of the scores be tw een 94 and 97 was achieved by more th a n 2,000 candidates, and since each tra in in g class can accom m odate slightly m ore th an 400 candidates, th e te s t scores provide no basis fo r selecting from am ong candidates a t each of these scoring lev els.” 630 F.2d a t 104. I t seem s obvious th a t, in the p re sen t case, th e S ta te has th e pow er to reorganize the rank -o rder l is t in question by use of the zones as proposed. As described earlier, if th e se ttlem en t ag reem en t w ent no farther, th is would be th e basis for a tru ly color blind selection process. H owever, the se t tlem en t does go fa rth e r, and provides for th e 21% and one-to-four ratios. The cases fu lly support these ratios, and show th a t th ey are no t un law ful quotas. As already noted, th e f irs t court o f appeals 29c opinion in th e Kirkland sergean ts case ap proved in terim m inority ratios, w hile disap prov ing a p e rm an en t quota. Kirkland, su pra, 520 F.2d a t 429-30. In Association Against Discrimination v. City o f Bridgeport, 647 FJ2d 256 (2d Cir. 1981), the cou rt approved, w ith modifica tions, a rem edy in a T itle V II case in which 102 fire f ig h te r positions w ere to be offered to m inority applicants ahead of non-minori ty applicants. The court term ed th is a “h ir ing goal" ra th e r th an a “quota .” For one th ing , the rem edy w as in terim ra th e r than perm anen t in natu re . In Guardians I the cou rt approved a m inority h irin g ratio. The court again dealt w ith the concept of an in terim rem edy versus a perm anen t one and defined “ in terim ” as “ th e tim e period betw een th e d a te of a decree and the subse q u e n t use o f a valid selection procedure.” 630 F.2d a t 110. The court s ta te d th a t it is an ap p rop ria te in terim rem edy under T itle V II to provide fo r a h iring preference “re flec ting th e m inority ra tio o f th e applicant pool or the re lev an t work fo rce.” 630 F.2d a t 109. T he se ttlem en t ag ree m en t in th e p re sen t case provides fo r reasonable h iring goals on an in terim basis w ith in th e m ean ing of these decisions. A nother fe a tu re of a valid ra tio or h iring goal, as defined in this circuit, is th a t i t is tailored to th e specific d iscrim ination claims of m em bers of th e p la in tiff class, and does not establish broader-rang ing benefits to m inority applicants in genera l, and corre sponding de trim en t to non-m inorities. 30c Kirkland, supra, 520 F.2d a t 430. This de scription f its precisely the se ttle m e n t ag ree m en t in th e p resen t case The above analysis is consisten t w ith the Suprem e C o u rt’s decision in United Steel workers v. Weber, 443 U.S. 193, 99 S .C t 2721, 61 L.Ed.2d 480 (1979), in respect to th e legality o f vo lun tary a ffirm ativ e action plans—particu la rly as to th e perm issible e f fec ts on non-m inority em ployees. The C ourt s ta te d th a t the plan in th a t case did not “unnecessarily tram m el th e in te rests of w hite em ployees,” because i t did n o t require th e d ischarge of w hite w orkers; it did no t c rea te an absolu te b ar to th e ir advance m en t; and i t was a tem porary m easure. F u r th e r , it w as not intended to m ain tain racial balance b u t simply to elim inate a racial im balance. 443 U.S. a t 208, 99 S .C t a t 2729. These characteristics are p re sen t in th e case a t bar. Other Contentions o f Objectors V arious contentions have been m ade by the objectors in oral a rg u m en t and in the ir w ritten submissions. The ones th a t have been dealt w ith a t length in th is opinion appear to be the ir principal contentions, although i t m ust be said th a t th e deline ation and a rticu la tion of points by the ob jec to rs was no t crystal clear. All of th e points m ade by th e objectors have been carefu lly considered. None o f th e m has m e r i t 31c Conclusion F or th e foregoing reasons, the se ttlem en t ag reem en t is approved and th e objections th e re to a re overruled. i Id A ppendix D — O rd er of U nited S tates D istric t Court, D ated N ovem ber 9 , 1982. U N IT E D S T A T E S D IS T R IC T C O U R T , Southern District of New York. Edward L. Kirkland, et al., Plaintiffs, v. The New York State Department of Correc tional Services, et al., Defendants. 82 C iv. 0295 Griesa, J. P lain tiffs an d d e fen d an ts have app lied fo r ap p ro v a l o f a Stipulation o f S ettlem ent o f th is class ac tio n , p u rsu an t to Fed. R. C iv. P . 23(e). N o ob jec tions have been received from any m em bers o f th e class. H ow ever, ob jec tions have been received fro m n u m erous o th e r parties claim ing to be affected by the term s o f th e se ttlem ent. In ad d itio n , cer tain parties claim ing to be a ffec ted have fo rm ally in te r vened and have ap p ea red by counsel. 2d The court has considered the various argum ents in favor o f the settlem ent and the objections thereto . The court finds th a t the S tipulation o f Settlem ent is fair, reasonable and lawful in all respects, and finds tha t the objections to the settlem ent, including the claims o f constitutional defects, are w ithout m erit. A n appropria te opinion will be issued by the court in due course. The S tipulation o f Settlem ent is hereby approved. So ordered. D ated: New Y ork, New York N ovem ber 9, 1982 TH O M A S P . G RIESA U .S .D .J. le APPENDIX E—Ruling o f the U nited States District C ourt, Septem ber 29, 1982. The C ourt: All right, the ruling is as follows: The application to intervene by the clients o f Rowley, Forrest & O ’D onnell is granted. I w on’t give the nam es, bu t we will arrange for an orderly and simple form o f docum ent to list the names o f those intervenors. To the extent tha t the clients o f M r. Beck and M r. Halberg are different from the clients o f Rowley, Forrest and O ’D onnell—I ’m sorry. Let me start again. We also have an application to intervene by clients o f Beck, Halberg & W illiam son. T hat application to intervene is granted. Those two firm s are to file with the C ourt a docum ent consisting o f nothing m ore than an affidavit from a p a rt ner o f the law firm in each case, with the caption o f this case, and there will be a list o f the clients tha t are represented and who are intervening. The list should be coordinated, so th a t there is no t duplication. I ’m sure tha t can be arranged. Now, the caption o f the case will be am ended to simply —I d o n ’t think the caption in the case needs to be amended at all. The caption will rem ain the same. The in tervenors will be noted for the record, and that will be abundantly clear. There are the following conditions im posed on the in ter vention: A nd I am considering this as a permissive in tervention under Rule 24(b) o f the Rules o f Civil P ro cedure. 1 am im posing certain conditions on the intervention for the following reasons: 2e T his ac tion has n o t been pend ing an in o rd in a te ly long tim e, since it was com m enced in Ja n u a ry o f 1982. A nd u n d er certa in c ircum stances, th e re w ould really be no p rob lem o f delay o r tim ing , as fa r as an in terven tion in Sep tem ber o f th e year, n ine o r ten m on ths a fte r th e filing o f the ac tion . H ow ever, in th is case, som e very im p o rtan t steps have been ta k en . T he parties to th e ac tio n , as orig inally com m enced , have been ab le , th ro u g h h a rd w ork , care fu l th o u g h t and exten sive n eg o tia tio n , to reach p as t an d get past th e p o in t of find ing any necessity fo r a tria l o f th e issues here. I phrase it th a t w ay, because, obv iously , th e re has been no trial, a n d we know th e re is a se ttlem en t th a t ’s p ro p o sed . But I w an ted to try to express th e concep t th a t the re was a step o f significance ta k en in decid ing , on the basis o f their know ledge o f th e issues a n d th e facts, th a t the re was no need fo r tria l a n d th a t th e re cou ld be a se ttlem ent. N ow , th e in te rveno rs have know n a b o u t th is action since its incep tion . A n d they have know n , in a general w ay, o f th e p rogress o f th e ta lks. M r. R ow ley was p resen t a t a m eeting in c o u rt, an exten sive m eeting w hich I have re fe rred to a lready , on Ju ly 14, 1982. A nd no ac tion was ta k en by these in tervenors to com e in , claim discovery righ ts, claim th e righ t to a trial, and no step was ta k en to in tervene, no fo rm al step , until the settlem ent w as agreed to . Indeed , it is a fac t, m ore im p o rta n t th a n th e tim ing a lm o st, is the fact th a t the in te rvenors s to o d by a t a tim e w hen the re shou ld have been a decision as to w hether th e re h ad to be a tria l o f th is case or n o t, h a d to be extensive d iscovery o r n o t, and they really allow ed th e parties to go a long an d believe th a t the re could be a settlem ent an d achieve a settlem ent. 3e Indeed, M r. R ow ley was in co u rt fo r an extensive meeting on Ju ly 14, as I said . A nd m y notes show u n e quivocally th a t he was very favo rab le to the idea o f a set tlem ent. H e agreed to coo p era te in achieving the se ttle ment, and we all le ft th a t m eeting believing th a t the re was a settlem ent acquiesced in by M r. Row ley, except fo r som e details th a t cou ld be easily w orked o u t. T hat was n o t th e resu lt o f an incom petence in the m en tality o f everyone the re aside from M r. R ow ley. M r. Rowley led us to believe th a t th is w as, indeed , the case. N ow , M r. R ow ley, as is his righ t an d his c lien ts’ righ t, has changed— they have changed the ir m ind . W ell, they weren’t b o u n d by any th ing said on Ju ly 14. B ut th e p o in t is, all the c ircum stances are such th a t it w ould be a deprivation o f ju s tice to the orig inal p la in tiffs an d d e fen d ants in this ac tio n to allow an in terven tion w hich w ould simply s ta rt the ac tio n a fresh an d requ ire discovery, tria l of all the issues, a n d so fo rth . There is also a seribus question as to w hether th e in terveners w ould have stand ing to requ ire th e k ind o f tria l of all the issues w hich M r. R ow ley now suggests. A nd I am not m aking a ru ling . I am ju s t saying there is a serious question. C ertain ly , th e p la in tiffs here allege a m ino rity class. Those p la in tiffs have a righ t to sue the S tate au tho rities and to claim th a t th e S ta te au th o rities have im posed in valid and u n c o n stitu tio n a l testing p rocedures. W hether in this action a g ro u p o f w hite co rrec tion officers can com e in and in tervene to defend the test in a tr ia l ,— m aybe they’ve got th a t rig h t, m aybe they d o n ’t — I really d o n ’t know. I th in k it p resen ts a substan tia l issue. But be th a t as it m ay , it is to o la te to s ta r t th a t k ind o f a procedure. There is a n o th e r p o in t w hich I m en tioned in th e d iscus sion, and th a t is, th e re is, judg ing by th e conduct o f th e in- 4e tervenors an d the ir counsel, th e re is a very serious risk here o f using th e litiga tion process to delay fo r de lay ’s sake. T here has been an o u tlan d ish am o u n t o f p ap erw o rk in connec tion w ith o p p o sitio n to th e se ttlem en t, b o th in this co u rt an d th e F edera l C o u rt o f A ppeals an d in S ta te co u rt. A n d it is enough to w arn anybody w ho observes it o f the danger o f obstruc tive litiga tion tac tics. ___ T im ing is im p o rta n t here. I t ’s im p o rta n t to everyone. T he m echan ism o f th e ap p o in tm en t o f lieu tenan ts in the C o rrec tio n system is now going on . A nd it is this m echanism w hich is ob jec ted to . I f the d isposition o f this litiga tion can be delayed fo r m o n th s o r a year o r m ore, th is, in itse lf, achieves an im p o rta n t goal o f the in- te rveno rs. T hey shou ld n o t, an d will n o t, be p e rm itted to achieve any goal by delay fo r d e lay ’s sake. So all o f these circum stances lead m e to ru le th a t, on the cond itions fo r in te rv en tio n , th e in te rv en ers are perm itted to in tervene fo r th e sole p u rp o se o f ob jec ting to th e settle m en t, an d all p roceed ings, all hearings, all filing o f papers will be solely d irec ted to th e question o f the a p p ro p ria ten ess o f th a t settlem ent and the question o f w hether th e C o u rt shou ld o r shou ld n o t app rove it. M oreover, the re has to be a lim it, an d there will have to be regu la tions a n d som e co n tro l, on th e co n d u ct o f the in te rveno rs in th is in te rv en tio n . A nd I w an t to let everybody know th a t th e C o u rt is availab le on sh o rt notice fo r conference on any an d all po in ts . A n d in view o f th a t, th e in tervenors are d irec ted th a t no papers will be filed in th is c o u rt o f any n a tu re w hatever un til an d unless a con ference has been held w ith the C o u rt in advance o f any p ro p o sa l to file papers . T he exception , o f course, a re the papers I have ju s t d irec ted , listing th e nam es o f the in te rvenors. W e will have a conference early next w eek, a t w hich we will p lan the issues to be d iscussed an d litiga ted in connec tion w ith th e in terven tion . W e will p lan and schedule the 5e filing o f any p ap ers . A nd all o f th is p roceed ing will be taken expeditiously acco rd ing to a schedule estab lished by the C o u rt. A nd all o f th is will be designed to m ake it possi ble fo r the C o u rt to decide a t a very early d a te w hether it does o r does n o t include the settlem ent. T h an k you very m uch. (Recess) T he C o u rt: Is the re any th ing else, briefly? T hen we will suspend. M r. Rowley: Y our H o n o r, I ju s t w an ted to m ove th a t you reconsider your ru ling , an d in stead d irec t an un lim ited in terven tion , an d p lace th is case on a scheduling o rd er. order. W e rep resen ted to the C o u rt an d to th e parties back in July th a t we w ould n o t delay a tria l. W e will n o t— I w ould waive any fu rth e r exam ination o f the tw o indiv iduals th a t have been exam ined . A nd if th e C o u rt w ants to set this case dow n fo r a tria l on th e firs t o f D ecem ber, th e firs t o f January , a llow ing very sh o rt tim e fo r p re lim inaries, th a t, we w ould have no o b jec tio n to — T he C o u rt: M o tio n denied . M r. Row ley: — an d we w ould adhere to . The C o u rt: M o tion denied . M r. S herw ood: Y our H o n o r, will we be, in te rm s o f dates— The C o u rt: C an you w ork o u t the date? M r. S herw ood: All righ t, fine. If A ppendix F —Settlem ent A greem ent. (168) U N ITED STATES D ISTR IC T CO U RT, Southern District of New York. -------------------------------------------• — ---------------------------------- Edward L. Kirkland, et al., Plaintiffs, vs. The New York State department of Correc tional Services, et al., Defendants. i 82 Civ. 295 (T .P .G .) ------------------ • ------------------- Stipulation for settlement and dismissal of CLASS ACTION LITIGATION Counsel for all the parties in the above-captioned ac tion, agree and stipulate as follows: I. BACKGROUND AND JURISDICTION 1. This is an em ploym ent discrim ination civil rights ac tion. P lain tiffs allege violations o f the Fourteenth A m end ment to the U nited States C onstitu tion; 42 U .S .C . §§ 1981 2f an d 1983; T itle V I o f th e C ivil R ights A ct o f 1964, 42 U .S .C . § 2000d, et seq.; a n d T itle V II o f th e Civil R ights A ct o f 1964, 42 U .S .C . § 2000e, et seq. T he U n ited States D istric t C o u rt fo r th e S o u th ern D istric t o f N ew Y ork C o u rt has ju risd ic tio n over th is ac tio n as co n fe rred by 42 U .S .C . § 20Q0e-5(f) an d 28 U .S .C . §§ 1331, 1343. (169) 2. E d w a rd K irk la n d a n d tw o o th e r b lack em ployees o f the N ew Y ork S tate D ep artm en t o f C o rrec tio n a l Services began th is ac tio n on Ja n u a ry 15, 1982, on b e h a lf o f them selves a n d all persons sim ilarly situa ted . T he class is defined in th e co m p la in t as one p u rsu an t to R ule 23(a) an d (b)(2), F .R .C iv .P ., consisting o f “ all black em ployees o f th e N ew Y ork S tate D ep artm en t o f C orrec tio n a l Services w ho sat fo r E x am in a tio n N o . 36-808 on O ctober 3, 1981“ (C o m p la in t 18). P la in tiffs alleged tha t th e d e fen d an ts , th e N ew Y ork S tate D ep artm en t o f C o r rec tiona l Services an d the Civil Service C om m ission and th e ir respective C om m issioners, engaged in unlaw ful racia l d isc rim ina tion in th e developm ent a n d ad m in is tra tio n o f E x am in a tio n N o . 36-808 an d the use o f the resu lting eligible list to m ake p e rm a n en t p ro m o tio n a l ap p o in tm en ts to th e po sitio n o f C o rrec tio n L ieu tenan t. P la in tiffs a lso alleged th a t since the ap p o in tm en ts m ade fro m th e 36-808 eligible list de term ined w ho was eligible to sit fo r E x am in a tio n N o . 37-526, fo r th e position o f C or rec tion C ap ta in , th e C a p ta in ’s exam ina tion was o f neces sity ta in ted by un law fu l racia l d iscrim ination . 3. T he C o m p la in t seeks an in ju n c tio n against the con tin u ed use by d e fen d an ts o f any un law fu l d iscrim inatory em ploym en t p ractices based on race , toge ther w ith a ffir m ative relief, inc lud ing th e developm ent o f selection pro cedures fo r p ro m o tio n w hich do n o t have adverse im pact against b lacks a n d (170) the im p lem en ta tion o f steps to redress the effects o f un law fu l d iscrim ination . 3f 4. T he d efen d an ts hereby acknow ledge, an d w aive any ob jections to , th e p ro p e r service u p o n them o f th e sum m ons an d co m p la in t in th is ac tio n , agree th a t the p ro cedural requ irem en ts o f T itle V II, C ivil R ights A ct o f 1964 have been satisfied an d agree th a t the U n ited States D istrict C o u rt fo r th e S ou thern D istric t o f New Y ork has personal ju risd ic tio n over th e respective parties to this S tipu lation . 5. T he d efen d an ts deny th a t they have engaged in any practice o f un law fu l d isc rim ina tion against m inorities in violation o f any federa l o r s ta te s ta tu tes , ru les, o rd ers , o r regulations o r o f th e F o u rteen th A m endm ent. 6. T he d e fen d an ts believe they have b o th a m o ra l and legal o b liga tion to act a t all tim es in the best in terests o f all citizens and em ployees, a n d , th e re fo re need n o t expend public funds fo r litiga tion w here there is a reasonab le basis for am icable reso lu tion , in a m an n er consisten t w ith lawful a ffirm ativ e ac tion policies. 7. It is a p u rp o se an d th e in ten t o f th is S tipu la tion to assure th a t m inorities by reason o f the ir race are n o t d isad vantaged by th e em ploym en t policies, p rocedures and practices w ith in th e N ew Y ork S ta te D ep artm en t o f C o r rectional Services, (171) an d th a t any d isadvan tage to m inorities w hich m ay have resu lted from th e use o f E x am ination N o . 36-808 is rem edied as p rov ided herein so that equal em ploym en t o p p o rtu n ity will be p rov ided fo r all. 8. O n O ctober 3, 1981, a p ro m o tio n a l exam ination fo r C orrection L ieu ten an t, N o . 36-808, was adm in iste red . T he num ber o f persons w ho app lied fo r, to o k , and passed or failed the exam ina tion are: 4f P erso n s w ho to o k test an d passed (includes those subsequen tly d isqualified) 527 w hite 148 m ino rity Persons who took test and fa iled 43 w hite 21 m ino rity Persons who applied and were qualified hut did not appear 12 w hite 5 m inority Persons who applied but were not qualified 263 w hite 179 m ino rity A n eligible list based on E x am in a tio n N o . 36-808 was certified by the D ep a rtm en t o f Civil Service. T he scores reflected on th e eligible list inc lude po in ts fo r sen iority and v e te ran s’ cred its as p rov ided fo r u n d er the Civil Service Law o f N ew Y ork S tate . (172) T he ra n k o f a person on the eligible list was deter m ined by h is /h e r score an d ra n d o m ran k in g w ithin a score. T he ra c ia l/e th n ic b reak d o w n o f the list in rank o rd er is: Rank White M inority 1-99 94 5 100-214 100 14 215-284 60 9 285-402 93 24 403-512 79 30 513-602 61 28 603-664 31 30 5f 9. A s o f Ju ly 28, 1982, 222 ap p o in tm en ts to the posi tion o f C o rrec tio n L ieu ten an t h ad been m ade fro m the 36-808 eligible list, an d o f the persons so ap p o in ted , 20 are m inority . 10. O n Ja n u a ry 30, 1982, p ro m o tio n a l exam ina tion fo r C orrection C a p ta in , N o . 37-526, was adm in iste red . O nly those persons w ith p e rm a n en t app o in tm en ts as C o rrec tio n L ieu tenan ts o r w ith certa in o th e r p rev ious superv isory ex perience w ere eligible to take th is p ro m o tio n a l exam ina tion. N o elgible list based on th is exam ination has yet been certified. 11. T he parties w ish to use a m ethod o f selecting p e r sons to be a p p o in ted to th e positions o f C o rrec tio n L ieu te nant an d C o rrec tio n C ap ta in w hich is consisten t w ith p ro fessionally accep ted em ploym en t selection m easures and which is d irec ted to w ard s elim inating un law fu l adverse im pact u p o n m inorities w hich m ay resu lt from the use o f selection p rocedures fo r th e positions (173) o f C o rrec tion L ieutenant an d C a p ta in w hile assuring th a t p red ica ted perfo rm ance will be im partia lly m easured . 12. T he consen t o f the d efen d an ts to th is S tipu la tion shall in no w ay con stitu te n o r be construed as an adm is sion, express o r im plied , by said d efendan ts o f any v io la tion, ad ju d ica tio n o r find ing , w ith respect to any federal, state o r local s ta tu te , ru le , regu la tion o r o rd e r, o r the F ourteen th A m en d m en t. N o r m ay th is S tipu la tion o r any action taken in th e im p lem en ta tion h e reo f be adm issib le as evidence o f d isc rim ina tion o r fo r any o th e r pu rpose against said d efen d an ts in any o th e r jud ic ia l o r ad m in istrative p roceed ing o r investigation , except as p rov ided for in A rticle III below . 6f 13, T h is S tip u la tio n revolves in fu ll any a n d all em ploy m en t d isc rim in a tio n claim s, past o r p resen t, up to an d in cluding th e d a te o f signing o f th is S tip u la tio n , which claim s have been o r cou ld have been advanced against d efen d an ts in co nnec tion w ith E x am in a tio n N o . 36-808 by th e nam ed p la in tiffs an d any class m em bers involving alleged d iscrim in a tio n based on race o r co lo r, in v iolation o f th e F o u rteen th A m en d m en t, T itle V II, § 1981 and § 1983, a n d any o th e r app licab le federa l, s ta te o r local equal em ploym en t s ta tu te , ru le , reg u la tion o r o rd e r seeking re lief in co nnec tion therew ith . 14. T o th e ex ten t it m ay be re levan t, the parties to this S tip u la tio n a re o f th e view th a t th e term s o f th is S tipu la tio n a re consisten t w ith th e laws o f th e S ta te o f New Y ork. (174) I I . Class action status and notice 1. I t is a p p ro p ria te fo r th e nam ed p la in tiffs to m aintain th is ac tio n as a class ac tio n on b eh a lf o f all m ino rity per sons w ho to o k an d passed E xam in a tio n N o . 36-808 and have n o t been ap p o in ted p rio r to Ja n u a ry 30, 1982. 2. U p o n subm ission o f th is S tip u la tio n , to the United S tates D istric t C o u rt fo r th e S o u th e rn D istric t o f New Y ork as p rov ided in A rtic le III below , d efendan ts shall give no tice to the m em bers o f th e C lass iden tified herein of th e te rm s o f th is S tip u la tio n by posting the notice set forth in A tta ch m en t 1 in each o f the C o rrec tio n a l Facilities ad m in istered by C o rrec tio n s , w here it m ay easily be observed an d read by said C lass m em bers, an d by m ailing a copy of said no tice to each eligible on th e 36-808 List a t the address w hich ap p ears on th e L ist. III. Approval by the Court T he parties here to shall subm it th is S tipu la tion to the U nited S tates D istric t C o u rt fo r the S ou thern D istrict of 7f New Y ork fo r ap p ro v a l p u rsu a n t to a hearing to be scheduled by the C o u rt. U p o n C o u rt ap p ro v a l an d en try of the F inal S ettlem ent O rd er, the C o u rt shall en ter a F inal Judgm ent dism issing th is ac tion w ith p re jud ice . T he F inal Judgm ent an d F ina l S ettlem ent O rder shall be b ind ing on the parties an d shall be en fo rceab le by any m em ber o f the Class. (175) IV. General covenants 1. Purpose. T he p u rp o se o f th is S tipu la tion is to p ro vide equal em ploym en t o p p o rtu n ity in the New Y ork S tate D epartm ent o f C o rrec tio n a l Services, an d to elim inate racial d isc rim ina tion th a t m ay have existed an d its effects as a resu lt o f E x am in a tio n N o. 36-808. 2. Non-discrimination. T he d efen d an ts , including the ir officers, agen ts, em ployees, successors in office , an d all those acting in concert o r co o p era tio n w ith them o r a t their d irec tion o r u n d er the ir co n tro l (here inafter collec tively re fe rred to as th e “ d e fen d a n ts” ), shall n o t engage in any act, p rac tice , o r policy w hich has th e pu rpose o r effect of un law fu lly d iscrim inating on the basis o f race o r co lo r against any em ployee o r ap p lican t fo r em ploym ent in the New Y ork S ta te D ep a rtm en t o f C o rrec tiona l Services. 3. Retaliation Prohibited. T he d efendan ts shall no t discrim inate o r re ta lia te aga in st any em ployee o r app lican t for em ploym en t in the D ep artm en t o f C o rrec tiona l Serv ices because he o r she has opposed any un law fu l em ploy ment p rac tice o r has m ade a charge , testified , assisted , o r participated in any m an n er in any investigation , p ro ceeding, o r hearing re la ting to th is ac tion . 8f (176) V. Fu tu re appointments based on Examina tion NO. 36-808 T he parties have de te rm ined th a t u n til a new exam ina tio n fo r C o rrec tio n L ieu ten an t is co n stru c ted and ad m in istered p u rsu a n t to A rtic le VI o f th is S tip u la tio n , ap po in tm en ts shou ld be m ade fro m the eligible list based on E x am in a tio n N o . 36-808 in a m a n n e r th a t will achieve the d u a l goals o f substan tia lly preserv ing th e in tegrity o f the exam ina tion resu lts w hile e lim inating the adverse im pact o f th e ex am ina tion o n m ino rity cand ida tes. T he parties have agreed th a t these d u a l ob jectives can be achieved by substitu ting a “ zo n e” scoring system fo r determ ining eligiblity fo r a p p o in tm en t in place o f th e stric t ran k order system in itia lly ad o p ted by C o rrec tio n s an d Civil Service. T he parties believe th a t use o f such a zone system is consis te n t w ith th e d iscussion in Guardians A ss ’n o f New York City v. Civil Service, 630 F .2 d 79 a t pages 102-03 (2d Cir. 1980). Based on co n su lta tio n w ith experts w ho have used s ta n d a rd dev ia tion analysis to estim ate th e likely “ erro r of m easu rem en t” inheren t in E xam in a tio n N o . 36-808 (as sum ing fo r pu rposes o f th is d iscussion only th a t Exam ina tio n N o . 36-808 is a valid , jo b -re la te d exam ination ), the parties have concluded th a t test score zones representing fo u r-p o in t ranges are a p p ro p ria te in ligh t o f th e Guardians analysis. T h ere fo re , fro m th e d a te o f signing o f this S tipu la tion p e rm an en t ap p o in tm en ts to th e position of C o rrec tio n L ieu ten an t shall be m ade in the fo llow ing m an ner: (177) 1. T hose persons w ho passed E xam ina tion No. 36-808 an d w ho have n o t yet been ap p o in ted shall be d iv ided in to th ree zones. Z one 1 shall include all persons w ho received a final score o f 82.5 o r h igher. Z one 2 shall inc lude all persons w ho received final scores betw een and inc lud ing 78.0 and 82.0. Z one 3 shall inc lude all persons 9f who received scores betw een an d including 73.0 and 77.5. Each zone shall be deem ed to be single score fo r purposes of m aking p e rm a n en t ap p o in tm en ts p u rsu an t to th e New York S tate C ivil Service Law . 2. A p p o in tm en ts fro m w ith in a single zone, w hen eligibles w ith in th a t zone are reachab le fo r ap p o in tm en t pursuan t to C ivil Service Law Section 61(1), shall be m ade on the fo llow ing good fa ith basis: a. A p p o in tm en ts fro m w ith in the zone shall firs t be m ade fro m eligible m ino rity cand idates if m inority eligibles w ith in th e zone are availab le an d willing to accept ap p o in tm en t, un til m ino rity appo in tm en ts fro m the 36-808 list reflect the p ro p o rtio n o f the eligible poo! w hich is m ino rity o r un til the m inority a p p o in tm en ts reach a t least 21 percen t o f the to ta l a p p o in tm en ts fro m th a t list. (178) T h ereafte r, a p p o in tm en ts shall be m ade in a p ro p o rtio n o f one m in o rity to fo u r n o n -m ino rity . b. A ny ap p o in tm en t fo r w hich no m inority eligible w ith in th e zone rem ains availab le and w illing to ac cept ap p o in tm en t shall be m ade from non -m ino rity eligibles w ith in th e zone, p u rsu an t to Civil Service Law Section 61(c). 3. A ny ap p o in tm en t fo r w hich no eligibles w ho are available an d w illing to accep t the ap p o in tm en t rem ain in any higher zone, m ay be m ade fro m th e next low er zone pursuant to th e p rov isions o f P a ra g ra p h 2 above. 4. A ny eligible w ho refuses a particu la r ap p o in tm en t will re ta in his o r her p osition w ith in the zone and shall re main availab le fo r subsequen t ap p o in tm en t p u rsu an t to the provisions o f P a ra g ra p h s 2 an d 3 above. lOf VI. F u t u r e s e l e c t io n p r o c e d u r e s f o r Co r r e c t io n L ie u t e n a n t a n d C o r r e c t io n c a p t a in . 1. Civil Service an d C o rrec tio n s shall develop an d ad m in ister new selection p rocedu res fo r the positions o f C or rec tion L ieu ten an t an d C o rrec tio n C ap ta in . (179) 2. Civil Service a n d C orrec tions shall consu lt with an industria l psychologist designated by p la in tiffs on the developm ent o f th e new selection p rocedu res fo r C orrec tio n L ieu ten an t an d C o rrec tio n C ap ta in . P la in tiffs ’ designated ind u stria l psychologist will p rov ide in p u t in the developm en t, review o f th e resu lts, an d im p lem en ta tion of the new selection p rocedures. 3. P la in tif fs ’ designated ind u stria l p sycho log ist’s com m en ts, w hether w ritten o r o ra l, shall be adv isory only and in no w ay b ind ing on de fen d an ts , th e ir successor agencies o r successors in office , and th e o fficers, em ployees and agents o f said d efen d an ts o r the ir successors. D efendants an d p la in tiffs ’ designated ind u stria l psycho log ist shall coo p era te in o rd e r to e ffec tu a te developm ent and im p lem en ta tion o f th e new selection p rocedures in an effi cien t m anner. In no event shall d e fen d an ts be required to delay developm ent o r im p lem en ta tion o f selection pro cedures as a resu lt o f un reaso n ab le delay in receipt o f com m ents fro m p la in tiffs ’ designated ind u stria l psychologist. C orrespond ing ly , defendan ts shall fu rn ish p la in tiffs’ designated industria l psychologist ap p ro p ria te m aterials in a tim ely fash ion and shall p rov ide the industrial psychologist w ith a reasonab le am o u n t o f tim e to provide his in p u t. 4. P la in tif fs ’ designated in d u stria l psychologist shall be paid a t the ra te o f $60.00 per h ou r, plus expenses, but (180) the to ta l am o u n t o f such fees and expenses shall not I l f exceed the sum o f $30,000. Bills fo r such services an d ex penses shall be su bm itted in a fo rm w hich com plies w ith requirem ents o f the co m ptro lle r o f the S tate o f N ew Y ork . 5. T he new selection p ro ced u re fo r C o rrec tion L ieu te nant shall be developed an d adm in iste red in acco rdance with the tim e fram e set fo rth below : a. N o t la ter th a n th e tim e a t w hich C orrec tions , in m ak ing p e rm a n en t ap p o in tm en ts to the position o f C o rrec tio n L ieu ten an t, has reached and o ffe red a p p o in tm en t to can d id a te num ber 572 on the 36-808 E lig ibility L ist, C o rrec tions shall request Civil Serv ice to develop an d adm in iste r the new selection p ro cedure. b. U pon receip t o f such request from C orrec tions, Civil Service shall adm in is te r the new selection p ro cedure w ith in six (6) m on ths. c. Civil Service shall pub lish th e E ligibility L ist based on the new selection p ro ced u re as soon as available and no la ter th an six (6) m on ths a fte r ad m in is tra tion o f such p rocedu re , b u t in no event shall (181) such list be certified fo r use in m aking p erm anen t ap p o in tm en ts un til every eligible on the 36-808 List has been o ffe red an ap p o in tm en t an d has been a f fo rd ed a reaso n ab le o p p o rtu n ity to either accept or decline. W hen every eligible on the list has been o f fered an ap p o in tm en t, C orrec tions shall so advise Civil Service. 6. D efendan ts shall use the ir best e ffo rts to com m ence adm in istra tion o f the new selection p rocedu re fo r p ro m o tion to the ran k o f C o rrec tio n C ap ta in by Septem ber 30, !2 f 1983 b u t in no event shall a d m in is tra tio n o f such selection p ro ced u re com m ence la te r th a n D ecem ber 31, 1983. The E lig ibility L ist based on th e new selection p ro ced u re shall be pub lished w ith in six (6) m o n th s o f com m encem ent of ad m in is tra tio n o f th e p rocedure . 7. T he new selection p rocedu res to be developed pu r su an t to P a ra g ra p h s 1-6 above, shall be designed to obtain quality o fficers a n d to assu re th a t th e selection system does n o t have adverse im pact. T he specific m easures o u tlined below are in tended to achieve th is goal. a. T he selection p rocedu res shall be as co n ten t valid as feasib le. b . T he selection p rocedures shall, consisten t with selection s tan d a rd s such as (182) those o f the A m erican Psycho log ical A ssocia tion an d the U .G .E .S .P ., e lim inate o r m inim ize adverse im pact on m ino rity cand idates. c. In developing th e new selection procedures, d e fen d an ts shall consider the possib ility o f alter natives o r supp lem ents to w ritten exam inations, in cluding use o f o ra l exam ina tion o r assessm ent cen ter techn iques. d . In the event th a t a w ritten exam ina tion is used as p a r t o f one o r b o th o f the new selection procedures, d efen d an ts shall consider app lica tio n o f one or m ore o f the fo llow ing techn iques to m inim ize or elim inate adverse im pact on m inority candidates, shou ld such adverse im pact result: i. S epara te frequency d is trib u tio n fo r m inority a n d n o n -m ino rity cand idates; 13f ii. E lim ina tion o f p a rticu la r item s th a t resu lt in s ta tistically sign ifican t adverse racial im pact am ong cand idates o f substan tia lly equ ivalen t ab ility . (183) iii. A d d ition o f item s to o ff-se t the adverse im pact o f o th e r item s. e. A ny selection p ro ced u re th a t is a d o p ted including the setting o f c u t-o ff scores o r ra n k o rdering fea tu res , shall be used in a m anner, th a t, consisten t w ith valid ity an d u tility , reduces o r elim inates adverse racial im pact. VII. A t t o r n e y s f e e s , c o s t s , a n d e x p e n s e s For pu rposes o f th is A rtic le p la in tiffs are prevailing p a r ties an d are en titled to recover the ir expenses, costs, and reasonable a tto rn ey s fees. Follow ing final app rova l o f this S tipu lation o f Settlem ent the parties shall m eet an d seek to reach ag reem ent on the am o u n t o f a tto rneys fees, costs, and expenses. Such ag reem ent shall be sub ject to the a p proval o f the C o u rt. If the parties a re unab le to agree, p la in tiffs m ay , by a p p ropria te m o tio n , p resen t th e m a tte r to the C o u rt fo r resolution. The C o u rt will re ta in ju risd ic tio n fo r pu rposes o f reso lv ing any d isputes th a t m ay arise un d er th is A rtic le V II. (184) VIII. definitions As used herein: 1. Corrections. “ C o rrec tio n s” shall m ean an d re fe r to the New Y ork S tate D ep artm en t o f C o rrec tions , its C o m missioner an d o fficers, th e ir successors in o ffice , an d all 14f persons in active concert o r p a rtic ip a tio n w ith o r under the co n tro l o r d irec tio n o f any o f them . 2. Civil Service. “ Civil Service” shall m ean an d refer to th e N ew Y ork S ta te D ep artm en t o f Civil Service, its C om m issioners an d o ffice rs, th e ir successors in office , and all persons in active concert o r p a rtic ip a tio n w ith o r u nder the co n tro l o r d irec tion o f any o f them . 3. Black or blacks. “ B lack” o r “ b la ck s” shall m ean an d re fe r to any person o r persons, n o t o f hispanic o rig in , having orig ins in any o f the b lack racial g roups. 4. Hispanic or hispanics. “ H isp an ic” o r “ h ispan ics” shall m ean an d re fe r to any person o r persons o f M exican, P u e rto R ican , C u b an , C en tra l o r S ou th A m erican , or o th e r Span ish cu ltu re o r o rig in , regard less o f race. 5. M inority or minorities. “ M in o rity ” o r “ m ino rities” shall m ean an d refer to b lacks and h ispanics. (185) 6. U.G .E.S.P . T he in itals U .G .E .S .P ., shall mean and re fe r to the U n ifo rm G uidelines on E m ployee Selec tio n P ro ced u res , 29 C F R § 1607. IX. A p p r o v a l T he parties agree to the en try o f th is s tipu la tion subject to th e ap p ro v a l o f the C o u rt. U ndersigned counsel repre sent th a t they a re au th o rized to en ter in to th is S tipulation on b eh a lf o f the ir respective clients and th a t this signed S tipu la tion is b ind ing on th e parties. R O B E R T A B R A M S A tto rn ey G eneral o f the S tate o f New Y ork A tto rn ey fo r all D efendan ts 15f By: A N N H O R O W IT Z A ssistan t A tto rn ey G eneral B A R B A R A B. B U T L E R A ssistan t A tto rn ey G eneral T w o W orld T rad e C en ter N ew Y ork , New Y ork 10047 Tel. N o . (212) 488-3899 P E N D A O . H A IR A tto rn ey fo r all p la in tiffs O . P E T E R S H E R W O O D O f C ounsel A tru e copy R A Y M O N D F. B U R G H A R D T , C lerk By (Illegible) D eputy C lerk Court Approval T his s tip u la tio n is app roved an d the ac tion is hereby s tip u la tio n en tered th is day o f , 1982. U nited States D istric t Judge 16f (186) Attachm ent 1 (187) Notice o f Settlement o f Em ploym ent Discrimination Case and o f Hearing on Objections U N IT E D S T A T E S D ISTR IC T C O U RT, SOUTHERN DISTRICT OF NEW YORK. E d w a r d L. K ir k l a n d , et al., i Plaintiffs, against T h e n e w Yo r k St a t e d e p a r t m e n t o f c o r r e c t io n a l Se r v ic e s , et ah, Defendants. 82 Civ. 295 (T P G ) P l ea se T a k e N o t ic e th a t a s tipu la tion o f settlem ent an d dism issal settling the above-cap tioned em ploym ent d isc rim ina tion ac tio n concern ing C o rrec tio n L ieutenant E xam in a tio n N o. 36-808 has been signed an d subm itted to the C o u rt fo r ap p ro v a l. A hearing the reo n will be held on S eptem ber 29, 1982 a t 9:30 a .m . in th e U nited States C o u rth o u se , Foley S quare , New Y ork , New Y ork in R oom 601. A ny em ployee o f th e D ep artm en t o f C orrec tiona l Services w ho believes his o r her in terests m ay be a f fected by the settlem ent o f th is case and w ho wishes to 17f have his o r her views regard ing th e s tip u la tio n considered by the C o u rt a t th a t tim e m ust file a w ritten sta tem en t o f their views w ith the C lerk o f the C o u rt, S o u th ern D istric t o f New Y ork , U nited S tates C o u rth o u se , Foley S quare , New Y ork , New Y ork 10007 no la ter th an 4 p .m , on (188) Septem ber 24, 1982. T hose sta tem en ts m ust co n ta in the follow ing reference p ro m in en tly d isplayed a t th e to p o f the first page: “Kirkland v. Department o f Correctional Services, 82 C iv. 29 (T .P .G .) .” C opies o f those s ta tem en ts m ust also be served personally o r by m ail on the fo llow ing: 1) H o n o rab le T hom as P . G riesa, U nited S tates D istric t Judge, S ou thern D istric t o f New Y ork , U n ited States C ou rthouse , Foley S quare , New Y ork , New Y ork 10007; 2) N A A C P Legal D efense F u n d , 10 C o lum bus C ircle, New Y ork , New Y ork 10019 (A ttn : O . P e te r Sherw ood); and, 3) New Y ork S tate A tto rn ey G en era l’s O ffice , L itig a tion B ureau , 2 W orld T rad e C en ter, N ew Y ork , New Y ork 10047 (A ttn : A ssistan t A tto rn ey G eneral A nn H orow itz). A b rie f descrip tion o f th is litiga tion an d o f the te rm o f the settlem ent are set fo rth below . Y ou shou ld read the S tipu lation itse lf fo r a full descrip tion o f th e term s o f the settlem ent. C opies o f the S tipu la tion o f Settlem ent have been placed in th e line up ro o m o f each co rrec tiona l facil ity and can be exam ined there , an d are a lso on file w ith and can be exam ined d u ring n o rm al w ork ing h o u rs a t the Office o f the C lerk o f the C o u rt, S o u th ern D istric t o f New York, the O ffice o f the A tto rn ey G eneral (2 W orld T rad e C enter, 49 th floo r), and the offices o f the N A A C P Legal Defense F und (10 C o lum bus C ircle, 20th floo r). 18f (189) P la in tiffs a re em ployees o f th e New Y ork State D ep artm en t o f C o rrec tio n a l Services w ho to o k E xam ina tion N o. 36-808 fo r th e p osition o f C o rrec tio n L ieutenant. T he law suit involves civil righ ts claim s concern ing the developm en t, ad m in is tra tio n , and use o f E x am in a tio n No. 36-808. P rio r to any final decision by th e C o u rt, th is settle m en t was en tered in to . T he p rov isions o f th e settlem ent are sum m arized as follow s: 1. Future Promotions From The 36-308 List T he 36-808 list will co n tinue to be used in m aking per m an en t p ro m o tio n a l ap p o in tm en ts to the position o f C or rec tion L ieu ten an t. T he life o f th e list will be ex tended un til every eligible on the list has been canvassed once. Those eligibles on the list w ho have n o t yet been ap p o in ted will be d iv ided , on th e basis o f the ir final scores, in to three zones, as fo llow s: Z one 1 includes score 82.5 an d up; Zone 2 includes score 78 to score 82; Z one 3 includes score 73 to score 77.5. E ach zone will be deem ed to be a single score fo r pu rposes o f tie -b reak ing u n d er the Civil Service Law. T o th e ex ten t th a t m ino rity cand ida tes are reachab le and willing to accept ap p o in tm en t, ap p o in tm en ts w ith in a zone will be m ade firs t fro m m ino rity eligibles un til m inority ap p o in tm en ts reflect the list m ino rity percen tage o r reach a t least 2 1 % , an d (190) th e re a fte r , in a p ro p o rtio n o f one m ino rity to fo u r n o n -m ino rity . 2. Future Selection Procedures For Captain A n d Lieutenant New selection p rocedures will be developed fo r Captain and L ieu tenan t. T he new selection p rocedures fo r Captain 19f will be adm in iste red betw een S eptem ber 1983 an d D ecem ber 1983. T he new selection p rocedures fo r L ieu ten an t will be adm in iste red w ith in a tim e fram e such th a t the resu lting eligible list will be certified fo r use in m aking p erm an en t ap po in tm en ts once every eligible on the 36-808 list has been canvassed . D efendan ts will consu lt w ith an industria l psychologist designated by p la in tiffs concern ing the developm ent and use o f the new selection p rocedures, an d will consider the possibility o f a lte rnatives o r supplem ents to w ritten ex am inations. T he goals o f the new selection p rocedures are to o b ta in quality o fficers an d avoid adverse racial im pact. 3. Class Certification This ac tio n is p ro p erly m ain ta in ab le as a class ac tion . The class includes all m ino rity (Black an d H ispan ic) p e r sons w ho to o k an d passed E x am ina tion N o. 36-808 and had n o t been p erm anen tly ap p o in ted as L ieu tenan ts p rio r to Ja n u a ry 30, 1982. (191) T his N otice is pub lished p u rsu an t to O rd er o f the C o u rt d a ted , 1982. R A Y M O N D F. B U R G H A R D T C lerk o f th e C ou rt S ou thern D istric t o f New Y ork Appendix G—Constitution, Acts, Statutes, Rules and Regulations. CONSTITUTION of the UNITED STATES OF AMERICA AM ENDM ENTS Criminal actions—Provisions concerning—Due process of law and just compensation clauses. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. . ' • AMENDMENT 14 Section 1. Citizens of the United States. ' All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the-privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ^ '■ ••••> c.'.; 2g 42 U. S. C. §20©0e—2(h). (h) Seniority or merit system; ability tests. Notwithstanding any other pro vision o f this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result o f an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its ad ministration or action upon the results is not designed, intended or used to discriminate because o f race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the am ount of the wages or compensation paid or to be paid to employees of such employer if such dif ferentiation is authorized by the provisions o f section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U. S. C. 206(d)). 42 U. S. C. §2000e—4. Equa l Em p loym ent O portun ity C om m ission (a) Creation; membership; term; chairm an and vice chairm an; appointment of personnel. There is hereby created a Commission to be known as the Equal Employment Opportunity Commission, which shall be composed of five members, not more than three of whom shall be members of the same political party. Members of the Commission shall be appointed by the President by and with the advice and consent of the Senate for a term of five years. Any in dividual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed, and all members of the Commission shall continue to serve until their successors are appointed and qualified, except that no such member of the Commission shall continue to serve (1) for more than sixty days when the Congress is in session unless a nomina tion to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the sine die of the session of the Senate in which such nomination was submitted. The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman. The Chairman shall be responsible on behalf of the Com mission for the administrative operations of the Commission, and except as provided m subsection (b), shall appoint, in accordance with the provisions of title 5, United States Code, 3g governing appointments in the competitive service, such officers, agents, attorneys, ad ministrative law and employees as he deems necessary to assist it in the performance of its functions and to fix their compensation in accordance with the provisions o f chapter 51 and subchapter 111 of chapter 53 of title 5, United States Code, relating to classification and General Schedule pay rates: P ro v id e d , That assignment, removal, and compensation of ad ministrative law judge shall be in accordance with sections 3105, 3344, 5362, and 7521 of title 5, United States Code, (b)—(i) [Unchanged] (As amended Mar. 27, 1978, P. L. 95-251, § 2 (a )(ll), 92 Stat. 183.) (b) General Counsel; attorneys. (1) There shall be a General Counsel of the Commission appointed by the President, by and with the advice and con sent of the Senate, for a term of four years. The General Counsel shall have responsibility for the conduct of litigation as provided in sections 706 and 707 of this title. The General Counsel shall have such other duties as the Commission may prescribe or as may be provided by law and shall con cur with the Chairman of the Commission on the appointment and super vision of regional attorneys. The General Counsel of the Commission on the effective date of this Act shall continue in such position and perform the functions specified in this subsection until a successor is appointed and qualified. (2) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any case in court, provided that the Attorney General shall conduct all litigation to which the Commission is a party in the Supreme Court pursuant to this ti tle. (c) Vacancy; quorum. A vacancy in the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission and three members thereof shall constitute a quorum. (d) Official seal. The Commission shall have an official seal which shall be judicially noticed. (e) Report. The Commission shall at the close of each fiscal year report to the Congress and to the President concerning the action it has taken and the moneys it has disbursed. It shall make such further reports on the cause of and means of eliminating discrimination and such recommendations for fur ther legislation as may appear desirable. 4g (f) Offices. The principal office of the Commission shall be in or near the District of Columbia, but it may meet or exercise any or all its powers at any other place. The Commission may establish such regional or State offices as it deems necessary to accomplish the purpose of this title. (g) Powers of Commission. The Commission shall have power— (1) to cooperate with and, with their consent, utilize regional, State, local, and other agencies, both public and private, and individuals; (2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States; (3) to furnish to persons subject to this title such technical assistance as they may request to further their compliance with this title or an order issued thereunder; (4) upon the request of (i) any employer, whose employees or some of them, or (ii) any labor organization, whose members or some of them, refuse or threaten to refuse to cooperate in effectuating the provisions of this title, to assist in such effectuation by conciliation or such other remedial action as is provided by this tjtle; (5) to make such technical studies as are appropriate to effectuate the pur poses and policies of this title and to make the results of such studies available to the public; (6) to intervene in a civil action brought under section 706 by an aggrieved party against a respondent other than a government, governmental agency or political subdivision. (h) Cooperation with other departments and agencies with regard to educa tional and promotional activities. The Commission shall, in any of its educa tional or promotional activities, cooperate with other departments and agen cies in the performance of such educational and promotional activities. (i) Application of Hatch Act provisions to personnel. All officers, agents, attorneys, and employees of the Commission shall be subject to the provi sions of section 9 of the Act of August 2, 1939, as amended (the Hatch Act), notwithstanding any exemption contained in such section. (July 2, 1964, P. L. 88-352, Title VII, § 705, 78 Stat. 258; Mar. 24, 1972, P. L. 92-261, § 8(d)-(f) 86 Stat. 109, 110; Jan. 2, 1975, P. L. 93-608, § 3(1), 88 Stat. 1972.) 5g 42 U. S. C . §2000e—5. Prevention of unlawful employment practices (a) Power of Commission. The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 703 or 704 of this title. (b) Charges; notification; investigation and determination. Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee control ling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-manage ment committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d). If the Commission determines after such investigation that there is reason able cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not l later than one hundred and twenty days from the filing of the charge or, "'here applicable under subsection (c) or (d), from the date upon which the Commission is authorized to take action with respect to the charge. 6g (c) State or local proceedings. In the case of an alleged unlawful employ ment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority j to grant or seek relief from such practice or to institute criminal proceed ings with respect thereto Upon receiving notice thereof, no charge may be filed under subsection (a) [(b)] by the person aggrieved before the expira tion of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, pro vided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority. (d) Time for action under State or local law. In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged. (e) Time for filing charges. A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief fro® such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful 7g employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. (0 Civil action by Commission, Attorney General, or person aggrieved. (1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d), the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring-a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmen tal agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmen tal agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a govern ment, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action with- Bg out the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsections (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance. (2) Whenever a charge is filed with the Commission and the Commis sion concludes on the basis of a preliminary investigation, that prompt judicial action is necessary to carry out the purposes of this Act [title], the Commission, or the Attorney General in a case involving a govern ment, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited. (3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this title. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and ad ministered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his prin cipal office. For purposes of sections 1404 and 1406 of title 28 of the United States Code, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. ' (4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case. 9g (5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure. (g) Injunctions; affirmative action; equitable relief. If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment prac tice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 704(a) (h) Certain provisions inapplicable to actions against unlawful practices. The provisions of the Act entitled “ An Act to amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes,’’ approved March 23, 1932 (29 U. S. C. 101-115), shall not apply with respect to civil actions brought under this section. (i) Proceedings to compel compliance with orders. In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under this section, the Commission may commence proceedings to compel compliance with such order. (j) Appeals. Any civil action brought under this section and any proceed- ■ngs brought under subsection (i) shall be subject to appeal as provided in sections 1291 and 1292, title 28, United States Code lOg (k) Attorney’s fee. In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. (July 2, 1964, P.L. 88-352, Title VII, § 706, 78 Stat. 259; Mar. 24, 1972, P. L. 92-261, § 4, 86 Stat. 104.) l l g RULES OF CIVIL PROCEDURE R ule 24. Intervention (a) Intervention of Right. Upon timely applica tion anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely appli cation anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order admin istered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the stat ute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the eourt shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. (c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the consti tutionality of an act of Congress affecting the pub lic interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C. § 2403. 12g CONSTITUTION OP THE STATE OF ' NEW YORK As Amended and in Force January 1, 1982 . a r t ic l e V—OFFICERS a n d c iv il d e p a r t m e n t s ' § 6 . [Civil service appointments and promotions; veterans” preference and credits] Appointments and promotions in the civil service of the state and .all of the civil divisions thereof, including cities, and vil lages; shall be made according to merit and fitness to be: ascer tained, as far as practicable, by "examination which, as far as practicable, shall be competitive; provided, however, that any member of the armed forces of the United States who served therein in time of war, who is a citizen and resident of this state and was a resident at the time of his entrance into the armed forces of the United States and was honorably discharged or re leased under honorable circumstances from such service, shall be entitled to receive five points additional credit in a competitive examination for original appointment and two and one-half points additional credit in an examination for promotion or, if such member was disabled in the actual performance of duty in any war, is receiving disability payments therefor from the Unit ed States veterans administration, and his disability is certified by such administration to be in existence at the time of his ap plication for appointment or promotion, he shall be entitled to receive ten points additional credit in a competitive examination for original appointment and five points additional credit in an examination .for promotion. Such additional credit shall be add- ‘ ed to the final earned rating of such member after he has quali fied in an examination and shall be granted only at the time of establishment of an eligible list. No such member shall receive the additional credit granted by this section after he has re ceived one appointment, either original entrance or promotion, from an eligible list on which he was allowed the additional credit granted by this section. 13g N E W Y O RK CIVIL SE R V IC E LAW § 50. Examinations generally ' 1. Positions subject to competitive examinations. The merit and fitness of applicants for positions which are classified in the competitive class shall be ascertained by such examinations as may be prescribed by the state civil service department or the municipal commission having jurisdiction. 2. Announcement of examination. The state civil service de partment and municipal commissions shall issue an announce ment of each competitive examination, setting forth the mini mum qualifications required, the subjects of the examination, and such other information as they may deem necessary, and shall advertise such examination in such manner as the nature of the examination may require. Such announcement and ad vertisement shall each inform prospective applicants of the op tions for religious observance provided in subdivision eight of this section. S. Application for examination. The civil service depart ment and municipal commissions shall require prospective appli cants to file, during a prescribed time, a formal application in which the applicant shall state such information as may reasona bly be required touching upon his background, experience and qualifications for the position sought, and his m erit and fitness for the public service. The application shall be subscribed by the applicant and shall contain an affirm ation by him tha t the statements therein are true under the penalties of perjury. Blank forms for such application shall be furnished by said de partm ent and such municipal commissions without charge to all persons requesting the same. The department and such munici pal commissions may require in connection with such application such certificates of citizens, physicians, public officers or others having knowledge of the applicant, as the good of the service may require. 4. Disqualification of applicants or eligibles. The state civil service department and municipal commissions may refuse to ex amine an applicant, or after examination to certify an eligible (a) who is found to lack any of the established requirements for admission to the examination or for appointment to the posi tion for which he applies; or 14g (b) who is found to have a physical or mental disability which renders him unfit for the performance of the duties of the position in which he seeks employment, or which may reasonably be expected to render him unfit to continue to perforin the du ties of such position; or [(c) Repealed'] - J (d) who has been guilty of a crime; or (e) who has been dismissed from a permanent position in the public service upon stated w ritten charges of incompetency or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has other wise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investiga tion or inquiry tha t such resignation or termination resulted from his incompetency or misconduct; or (f) who has intentionally made a false statement of any ma terial fact in his application; or _ (g) who has practiced, or attempted io practice, any decep tion or fraud in his application, in his examination, or in secur ing his eligibility or appointment; or .......■, (h) who has been dismissed from private employments be cause of habitually poor performance. No person shall be disqualified pursuant to this subdivision unless he has been given a w ritten statem ent of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification. Notwithstanding the provisions of this subdivision or any oth er law, the state civil service department or appropriate munici pal commission may investigate the qualifications and back ground of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his ap plication, examination or appointment, may revoke such eligi ble’s certification and appointment and direct tha t his employ ment be terminated, provided, however, tha t no such certifica tion shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud. 5. Application fees, (a) Every applicant for examination for a position in the competitive or non-competitive class, or in the labor class when examination for appointment is required, 15g shall pay a fee to the civil service department or appropriate municipal commission a t a time determined by it. Such fees shall be dependent on the minimum annual salary announced for the position, as follows: (1) on salaries of less than three thou sand dollars per annum, a fee of two dollars; (2) on salaries of more than three thousand dollars and not more than four thou sand dollars per annum, a fee of three dollars; (8) on salaries of more than four thousand dollars and not more than five thou sand dollars per annum, a fee of four dollars; and (4) on sala ries of more than five thousand dollars per annum, a fee of five dollars. If the compensation of a position is fixed on any basis other than an annual salary rate, the applicant shall pay a fee based on the annual compensation which would otherwise be payable in such position if the services were required on a full time annual basis for the number of hours per day and days per week established by law or adm inistrative rule or order. Fees paid hereunder by an applicant whose application is not ap proved may be refunded in the discretion of the state civil serv ice department or of the appropriate municipal commission. (b) Notwithstanding the provisions of paragraph (a) of this subdivision, the state civil service department, subject to the ap proval of the director of the budget, a municipal commission, subject to the approval of the governing board or body of the city or county, as the case may be, or a regional commission or personnel officer, pursuant to governmental agreement, may elect to waive application fees, or to abolish fees for specific classes of positions or types of examinations or candidates, or to establish a uniform schedule of reasonable fees different from those prescribed in paragraph (a) of this subdivision, specifying in such schedule the classes of positions or types of examinations ■ or candidates to which such fees shall apply; provided, however, tha t only the civil service department, with the approval of the director of the budget, shall have authority to waive application fees or establish a different schedule of fees for any examina tions prepared and rated by the civil service department for po sitions under the jurisdiction of a municipal commission. (c) All fees collected hereunder by the state civil service de partment, except as hereinafter provided, shall be paid into the state treasury in the manner prescribed by the state finance law. Fees collected from applicants for examinations given exclusive ly for positions in the division of employment in the department of labor shall be held in tru s t until such time as the costs of such 16g examinations have been ascertained and thereupon shall be dis bursed as follows: (1) to the extent tha t such fees are sufficient therefor, there shall be paid into the unemployment administra tion fund maintained under the unemployment insurance law, an amount equal to the costs of such examinations. Such payments shall be made on the fifth day of the month following the month in which such costs were ascertained and shall be accompanied by a detailed, verified statem ent and a duplicate of such state ment shall be filed oh the same day with the state comptroller; (2) the balance, if any, of such fees shall be paid into the state treasury pursuant to the state finance law. ; (d) All fees collected hereunder by any municipal civil service commission shall be paid into the general fund of the municipali ty for which such commission has been appointed. . ‘ 6. Scope of examinations. Examinations shall be practical in their character and shall relate to those m atters which will fairly test the relative capacity and fitness of the persons exam ined to discharge the duties of tha t service into which they seek to be appointed. The state civil service department or appropri ate municipal commission, as the case may be, may establish an eligible list on the basis of ratings received by the candidates in the competitive portions of the examination and thereafter con duct medical, physical and other appropriate non-competitive qualifying tests from time to time as the need for certifications from the eligible list may require. 7. Limitation of eligibility to one sex. The state civil service department or the municipal commission having jurisdiction may limit eligibility for examination to one sex when the duties of the position involved relate to the institutional or other custo dy or care of persons of the same sex, or visitation, inspection or work of any kind the nature of which requires sex selection. 8. Examination of candidates unable to attend tests because of religious observance. A person who, because of his religious beliefs, is unable to attend and take an examination scheduled to be held by the state department of civil service or a municipal commission on a Saturday or on a day which is a religious holi day observed by him, shall be permitted to take such examina tion on some other day designated by the state department of civil service or appropriate municipal commission, at a reasona bly comparable time and place without any additional fee or pen alty. 9. The term “physical or mental disability” as used in this section, means a physical, mental or medical impairment result- 17g ing- from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is de monstrable by medically accepted clinical or laboratory diagnos tic techniques. Determination of physical or mental disability shall be made by a medical officer employed or selected by the civil service department or the municipal commission having jurisdiction. : ■ 18g NEW YORK ' CIVIL SE R V IC E LAW § 51 . Filling vacancies by open competitive examination :,h 1. Upon the w ritten request of the appointing officer stating his reasons therefor, or on its own initiative, the state civil serv ice department or appropriate municipal commission may deter mine to conduct an open competitive examination for filling a vacancy or vacancies instead of a promotion examination. 2. Except where the state civil service department or appro priate municipal commission finds tha t there are less than three persons eligible for promotion in the promotion unit where the vacancy exists, or in the department, if such vacancy is not in a separate promotion unit, and except where the department or municipal commission determines to conduct an open competitive and a promotion examination simultaneously, a notice of inten tion to conduct such open competitive examination or a copy of the appointing officer’s request for open competitive examina tion, as the case may be, shall be publicly and conspicuously posted in the offices of both the appointing officer and the state civil service department or appropriate municipal commission and such request shall not be acted upon until said notice has been posted as aforesaid for a period of not less than fifteen days! . 3. Any employee who believes th a t a promotion examination should be held fo r filling such vacancy may submit to the state civil service department or appropriate municipal commission his request, in writing, for a promotion examination rather than an open competitive examination, stating the reasons why he be lieves it to be practicable and in the public interest to fill the va cancy by promotion examination. 19g NEW YORK CIVIL SE R V IC E LA W § 52. Promotion examinations 1. Filling vacancies by promotion. Except as provided in section fifty-one, vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as deter mined by the state civil service department or municipal com mission; except that where the state civil service department or a municipal commission determines that it is impracticable or against the public interest to limit eligibility for promotion to persons holding lower grade positions in direct line of promo tion, such department or commission may extend eligibility for promotion to persons holding competitive class positions in low er grades which the department or commission determines to be in related or collateral lines of promotion, or in any comparable positions in any other unit or units of governmental service and may prescribe minimum training and experience qualifications for eligibility for such promotion. 2. Factors in promotion. Promotion shall be based on merit and fitness as determined by examination, due weight being giv en to seniority. The previous training and experience of the candidates, and performance ratings where available, may be considered and given due weight as factors in determining the relative merit and fitness of candidates for promotion. 3. Promotion eligibility of persons on preferred lists and em ployees on leave of absence. Any employee who has been sus pended from his position through no fault of his own and whose name is on a preferred list, and any employee on leave of ab sence from his position, shall be allowed to compete in a promo tion examination for which he would otherwise be eligible on the basis of his actual service before suspension or leave of absence. 4. Departmental and interdepartmental promotion lists. The state civil service department and municipal commissions may establish interdepartmental promotion lists which shall not be certified to a department until after the promotion eligible list for that department has been exhausted. 20g 5. Promotion units. In the state service, or in the service of a city containing more than one county, promotion examinations may be held for such subdivisions of a departm ent as the state civil service department or the municipal commission of such city, as the case may be, may determine to be an appropriate promotion unit, but departmental and interdepartmental promo tion eligible lists shall not be certified to a department until a ft er the promotion unit eligible lists for tha t department have been exhausted. . • 6. Promotion and transfer to adm inistrative positions in the state service. • •. (a) For the purpose of this subdivision, the term "adminis trative positions” shall include competitive class positions in the state service in law, personnel, budgeting, methods and proce dures, management, records analysis, and administrative re search, as determined by the state civil service department. (b) Except as provided in section fifty-one, vacancies in ad ministrative positions shall be filled, so fa r as practicable, by promotion as prescribed in subdivision one of this section, which may be made from among persons holding administrative posi tions in lower grades without regard to the specialties of their lower grade positions. The civil service department, upon the request of an appointing officer stating the reasons why the fill ing of administrative positions in grade fourteen or higher un der his jurisdiction from an interdepartmental promotion list or a promotion list including persons employed in other units of government would be in the best interests of the state service, or upon its own initiative whenever i t finds tha t the filling of ad ministrative positions in grade fourteen or higher in any depart ment from such an interdepartm ental or intergovernmental pro motion list would be in the best interests of the state service, may certify such an interdepartm ental or intergovernmental promotion list fo r filling such positions, without preference to departmental lists or to eligibles holding lower grade positions in the department or promotion unit in which such positions ex ist. ■ ;; ' \ 1*’ '.. '• *' V i / ' ' ‘ ‘ '" • i ’ (c) Transfers shall be allowed between administrative posi tions in the same or.related or collateral specialties which in volve substantially equivalent tests or qualifications, subject to such conditions and limitations as the state civil service depart ment may prescribe. .i- 1 {-su-.-.i 21 g (d) The provisions of this subdivision shall be applicable and controlling, notwithstanding any other provisions of this section or chapter or any other law. ; c'- 7. Promotion by non-competitive examination. Whenever there are no more than three persons eligible for examination for promotion to a vacant competitive class position, or when ever no more than three persons file application for examination for promotion to such position, the appointing officer may nomi nate one of such persons and such nominee, upon passing an ex amination appropriate to the duties and responsibilities of the position may be promoted, but no examination shall be required for such promotion where such nominee has already qualified in an examination appropriate to the duties and responsibilities of the position. 8. Limitation upon promotion. No promotion shall be made from one position or title to another position or title unless spe cifically authorized by the state civil service department or mu nicipal commission, nor shall a person be promoted to a position or title for which there is required, by this chapter or the rules, an examination involving essential tests or qualifications differ ent from or higher than those required for the position or title held by such person unless he has passed the examination and is eligible for appointment to such higher position or title. vie. 9. Increase in salary as a promotion. For the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder, beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a pro motion. 10. Credit for provisional service. No credit in a promotion examination shall be granted to any person for any time served as a provisional appointee in the position to which promotion is sought or in any similar position, provided, however, such provi sional appointee by reason of such provisional appointment shall receive credit in his permanent position from which promotion is sought for such time served in such provisional appointment. 11. Notwithstanding any other provision of law, the state de partm ent of civil service may, for titles designated by it, extend to employees in the state service who are holding or who have held a position in the non-competitive class of such service the same opportunity as employees in the competitive class to take 22g promotion examinations if such examinations are to be held in conj unction with open competitive examinations. 12. Notwithstanding any other provisions of law, a munici pal commission may, for entrance level titles as defined and des ignated by it, extend to employees in the service of a civil divi sion who are holding or who have held a position in the non competitive class of such service for a period of two years the same opportunity as employees in the competitive class to take promotion examinations for which such non-competitive class service is determined by the municipal commission to be appro priate preparation if such examinations are to be held in con junction with open competitive examinations. 13. Notwithstanding any other provision of law, a municipal commission may, for titles designated by it, extend to employees in the service of a civil division who are holding or who have held a position in the non-competitive class of such services pur suant to the provisions of section fifty-five-b of this chapter, the same opportunity as employees in the competitive class to take promotion examinations. 14. Notwithstanding any other provision of law, the state civil service commission may, for titles designated by it, extend to employees in the state service who are holding or who have held a position in the non-competitive class of such services pur suant to the provisions of section fifty-five-b of this chapter the same opportunities to take promotion examinations as provided to employees in the competitive class. 23g NEW YORK CIVIL SE R V IC E LAW § 56. Establishment and duration of eligible lists The duration of an eligible list shall be fixed a t not less than one nor more than four years; provided that, except for lists promulgated for police officer positions in jurisdictions other than the city of New York, in the event th a t a restriction against the filling of vacancies exists in any jurisdiction, the state civil service departm ent or municipal commission having jurisdiction shall, in the discretion of the department or commis sion, extend the duration of any eligible list for a period equal to the length of such restriction against the filling of vacancies. Restriction against the filling of vacancies shall mean any poli cy, whether by executive order or otherwise, which, because of a financial emergency, prevents or limits the filling of vacancies in a title for which a list has been promulgated. An eligible list tha t has been in existence for one year or more shall term inate upon the establishment of an appropriate new list, unless other wise prescribed by the state civil service department or munici pal commission having jurisdiction. ■ v ‘ 24g NEW YORK ' CIVIL SE R V IC E LAW § 60. Certification of eligible lists 1. Certification of eligibles from prior list. When an eligible list has been in existence for less than one year and contains the names of less than three persons willing to accept appointment, and a new list for the same position or group of positions is es tablished, the names of the persons remaining on the old list shall have preference in certification over the new list until such old list is one year old, and during such period such names shall be certified along with enough names from the new list to pro vide the appointing officer with a sufficient number of eligibles from which selection for appointment may be made. Where an old list which has been in existence for one year or more is con tinued upon the establishment of a new list which contains less than three names, the civil service department or. a municipal commission may certify the names on the old list along with enough names from the new list to provide the appointing offi cer with a sufficient number of eligibles from which selection for appointment may be made. ' ' 2. Certification on basis of sex. The state department of civil service or the municipal commission having jurisdiction may limit certification from an eligible list to one sex when the duties of the position involved relate to the institutional or other custody or care of persons of the same sex, or visitation, inspec tion or work of any kind the nature of which requires sex selec tion. 3. Certification of lists for state positions. Certifications for appointments to positions in the state service, regardless of the location thereof, shall be made from the state-wide lists of eli gibles; provided, however, th a t the state civil service department may, wherever practicable, certify from an appropriate eligible list for appointment to a state position, in any locality outside Albany county, residents of the county or judicial district includ ing such locality, or of any combination of counties or judicial districts including such locality, as determined by such depart ment. Notice of the proposed certification of eligibles by local residence in accordance with the provisions of this subdivision shall be included in the announcement of examination. Upon the exhaustion of the list of local residents certified to a position in the state service in a particular locality pursuant to the provi sions of this subdivision, the state-wide list of eligibles shall be certified to fill vacancies in such position in such locality. • ■■ 25g NEW YORK CIVIL SE R V IC E LAW "§ 6 1 . Appointment and promotion 1. Appointment or promotion from eligible lists. Appoint ment or promotion from an eligible list to a position in the com petitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion; provided, however, that the state or a municipal commission may provide, by rule, tha t where it is necessary to break ties among eligibles having the same final examination ratings in order to'determine their re spective standings on the eligible list, appointment or promotion may be made by the selection of any eligible whose final exami nation rating is equal to or higher than the final examination rating of the third highest standing eligible willing to accept such appointment or promotion. Appointments and promotions shall be made from the eligible list most nearly appropriate for the position to be filled. 2. Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emer gency situation, no person shall be assigned to perform the du ties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out- of-title work. " t. : . . 26g NEW YORK CIVIL SE R V IC E LA W § 95. ■ Duties of public officers It. shall be the duty of all officers of the state of New York or of any civil division or city thereof to conform to and comply with and to aid in all proper ways in carrying into effect the provisions of this chapter, and the rules and regulations pre scribed thereunder. No officer or officers having the power of appointment or employment shall appoint or select any person for appointment, employment, promotion or reinstatement ex cept in accordance with the provisions of this chapter and the rules and regulations established thereunder. Any person em ployed or appointed contrary to the provisions of this chapter or of the rules and regulations established thereunder shall be paid by the officer or officers sp employing or appointing, or at tempting to employ or appoint him, the compensation agreed upon for any services performed under such appointment or em ployment or, in case no compensation is agreed upon, the actual value of such services and any necessary expenses incurred in connection therewith, and shall have a cause of action against such officer or officers for such sum and for the costs of the ac tion. No public officer shall be reimbursed by the state ~ any of its civil divisions for any sums so paid er 'recovered in any such action. 27 g R U L E S A N D R E G U L A T IO N S O F T H E D E P A R T M E N T O F C IV IL S E R V IC E As amended to January 12,1983 § 3.6 Establishment of eligible lists Every candidate who attains a passing mark in an examina tion as a whole and who meets the standards prescribed, if any, for separate subjects or parts of subjects of the examination shall be eligible for appointment to the position for which he was examined and his name shall be entered on the eligible list in the order of his final rating ; but if two or more eligibles ceive the same final rating in the examination, they shall ranked in accordance with such uniform, impartial procedure may be prescribed therefor by the Civil Service Department. s jr ? 28g R U LE S A N D R E G U L A T IO N S O F T H E D E P A R T M E N T O F C IV IL SE R V IC E As amended to January 12,1983 § 4.2 Appointment and promotion ]-■- (a) Except as otherwise provided herein, appointment or pro motion to a position in the competitive class shall be made by the selection of a person on the appropriate eligible list willing to accept such appointment and whose final rating in the examina tion is equal to or higher than the rating of the third highest ranking eligible on the list indicating willingness to accept such appointment. The term “ranking” as used herein refers to the order in which the names of eligibles appear on the eligible list as provided in section 3.5. ' ‘ (b) Whenever a vacancy exists in a competitive class position and an open competitive examination does not result in an eligi ble list containing the names of a t least three persons willing to accept appointment, the Civil Service Department may permit the appointing authority to nominate a person for noncompeti tive examination for such position and, if such nominee shall be certified by the Civil Service Department as qualified, he may be appointed to fill such vacancy; or the Civil Service Department may designate the eligible list, if there be one, as a continuing eligible list in accordance, with section 57 of the Civil Service Law, and insert therein the names of additional eligibles as they are found qualified by examinations held a t such intervals as may be prescribed. : • • ;■ \ (c) Promotion by noncompetitive examination may also be made as provided by law. . • (d) Certification of a promotion eligible list shall not be re quired for filling certain vacancies. A promotion eligible list shall not be certified for filling a permanent vacancy created by upward reclassification of a permanently encumbered position where promotion from such list would require the layoff of a permanent employee or the reassignment of a permanent em ployee to a different geographical location; but this provision shall not apply if the incumbent whose position was reclassified has, following such reclassification, twice failed to qualify for promotion to the reclassified position. 29g (e) An open competitive eligible list shall not be certified for filling a permanent vacancy created by upward reclassification of a permanently encumbered position if appointment from such list would require the layoff of a permanent employee or the reassignment of a permanent employee to a different agency or a different geographical location; but this provision shall not apply if the incumbent whose position was reclassified has, fol lowing such reclassification, twice failed to qualify for appoint ment to the reclassified position. •: