Althiser v. New York State Department of Correctional Services Petition for a Writ of Certiorari

    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. •: