Motion for Leave to File Brief Amicus Curiae and Brief for National Suburban League

    IN THE
UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK 
CIVIL ACTION NO.

82 Civ. 0295 (T.P.G.)

EDWARD L. KIRKLAND, et al.,

Plaintiffs,
v s .

THE NEW YORK STATE DEPARTMENT OF 
CORRECTIONAL SERVICES, et al.,

Defendants.

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF 'JOINT 
MOTION OF ALL PARTIES FOR APPROVAL OF STIPULATION FOR DISMISSAL OF CLASS ACTION LITIGATION

■JACK GREENBERG 
0. PETER SHERWOOD 
RONALD L. ELLIS 
’JUDITH REED 
PENDA 0. HAIR

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Plaintiffs



IN THE
UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK 
CIVIL ACTION NO.

82 Civ. 0295 (T.P.G.)

EDWARD L. KIRKLAND, et al..

Plaintiffs,
v s .

THE NEW YORK STATE DEPARTMENT OF 
CORRECTIONAL SERVICES, et al.,

Defendants.

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF ’JOINT 
MOTION OF ALL PARTIES FOR APPROVAL OF STIPULATION 

FOR DISMISSAL OF CLASS ACTION LITIGATION

I.

Background
The parties have submitted a joint motion for approval 

of the proposed stipulation for settlement that, if approved, 
would settle this lawsuit against the New York State Depart­
ment of Correctional Services (hereinafter "DOCS"), the New 
York State Civil Service Commission (hereinafter "CSC") and 
several of their officials. Plaintiffs alleged that the defen 
dants engaged in unlawful racial discrimination in the develop 
ment and administration of Examination No. 36-808 and the use



of the resulting eligible list to make permanent promotional 
appointments to the rank of Correction Lieutenant. Plaintiffs 
also alleged that since the appointments made from the 36-808 
eligible list determined who was eligible to sit for Exami­
nation No. 37-526, for the position of Correction Captain, the 
Captain's examination was of necessity tainted by unlawful 
racial discrimination. The Complaint sought an injunction 
against the continued use by defendants of all unlawful 
discriminatory employment practices based on race, together 
with affirmative relief, including the development of 
selection procedures for promotion which do not have adverse 
impact against minorities and the implementation of steps 
to redress the effects of unlawful discrimination.

The purpose of the proposed stipulation is "to assure 
that minorities by reason of their race are not disadvantaged 
by the employment policies, procedures and practices within 
DOCS, 'and that any disadvantage to minorities which may have 
resulted from the use of Examination No. 36-808 is remedied 
as provided herein so that equal employment opportunity will 
be provided for all." The Stipulation seeks to erase partially 
the adverse racial effects of the defendants' use of the 
results of Examination 36-808. It permits continued use of the 
current eligible list for corrections lieutenants until that 
list is exhausted. It limits the life of the eligible list 
for corrections captain to approximately 18 months. Finally, 
it requires that the parties cooperate to develop future selec­
tion procedures for the ranks of corrections sergeant and

2



lietuenant that will be non-discriminatory and job related.
Shortly after the filing of this case it appeared that 

there might be a basis for its resolution, provided that it 
could be settled before too many promotions were made to the 
rank of lieutenant. Since minority and non-minority officers 
passed the test in roughly equal proportions and there appeared 
to be little if any empirical justification for the use of rank 
ordering, a procedure for minimizing the adverse racial impact 
of rank ordering together with establishment of a mechanism 
for avoidance of similar problems in the future was indicated.

Discovery proceeded while the parties discussed settlement. 
Documentation regarding the development, administration and 
results of examination 36-808 was obtained. Depositions were 
taken of two of the key individuals who were involved in the 
development and administration of the examinations.

By May 1982 the parties had reached agreement on the major 
elements of settlement. Before a signed agreement was pro­
duced, DOCS, reacting to pressure applied by the labor 
union that is authorized to represent supervisory corrections 
officers, the Security and Law Enforcement Employee Council-82, 
withdrew its consent to the settlement. Subsequently, in 
August 1982, after acceding to at least one of Council 82's 
demands —  that the list be kept alive until all eligibles are 
offered promotions —  DOCS decided to proceed and settle.

Council 82 has been kept apprised of this case since at 
least 'January 18, 1982 —  two days after it was filed. It 
sought to intervene through surrogates in 'July 1982 and its

3



counsel has participated in these proceedings since that time. 
This court directed that notice of the settlement be posted 
during September 1982. During the notice period Council 82 
solicited and obtained over 200 affidavits from its white mem­
bers in opposition to the settlement and filed them on their 
behalf. Simultaneously, a group of white corrections sergeants 
obtained separate counsel and sought to intervene. On August 
29, 1982 this court permitted both groups to intervene but 
imposed certain conditions on that intervention. Thus, two 
sets of intervenors are before the court.“^Both represent the 
interest of non-minority corrections officers and both are 
represented separately by counsel.

In this memorandum plaintiffs' will highli-ght the salient 
points of the settlement, address the applicable standards 
for approval of the stipulation for Settlement and attempt to 
anticipate the objections of the intervenors.

II.
A Summary Description Of The Provisions Of The 
__________Stipulation for Settlement__________

The stipulation negotiated by the parties is intended 
to end prior racial discrimination and its effects, compensate 
partially for prior racial discrimination and avoid like 
discrimination in the future. Its provisions are faithful to 
the need of DOCS to select fully qualified minority and

]_/ We shall refer to the Council 82 backed group - they number 
170 officers - as the "Althiser intervenors" and the other group 
- they number 20 officers - as the "McClay intervenors."

4



non-minority corrections officers. Accordingly, it contem­
plates measures to eliminate all unnecessary and unwanted 
adverse racial impact in future selection systems and to 
enhance the job relatedness of those selection procedures. It 
also provides for an interim race-specific remedial selection 
method for continued use of the existing lieutenants eligible 
list. A more detailed discussion of the stipulation follows.

1. Article IV - General Covenants 
Article IV contains the first substantive provision of 

the Stipulation. It sets forth the purpose of the Stipulation, 
requires defendants to comply with the non-discrimination 
requirements of Title VII and prohibits retaliation against 
any plaintiff or member of the plaintiff class.

2. Article V - Future Appointments 
Based on Examination 36-808____

Article V sets forth the manner in which future promotions 
are to be made off the eligible list that is based on examina­
tion 36-808. The procedure adopted here contemplates partial 
elimination of the adverse impact created by the rank order 
system now in use, while generally preserving the integrity of 
the results of examination 36-808. Its features are as follows:

a. Three zones will be established, based on
final test scores adjusted to give veterans 
and longevity credits. The three zones, the 
applicable score ranges and current eligibility 
list positions associated with them are:

5



Zone ScoreRange No. in Zone 3/
1
2
3

RankRange 2/

82.5+ 1-247 233
78.0-82.0 248-525 28673.0-77.5 526-672 153

b. All officers who fall within a single zone will 
be deemed to be of equal fitness for promotion;

c. Absent restrictions that are unrelated to this 
stipulation, appointments will be made first 
from Zone 1, then from Zone 2 and finally from Zone 3;

d. As each zone is reached appointments shall be 
made first from among the minority officers 
who are within the zone until minorities 
constitute at least 21% of those appointed thus 
far from the list. Thereafter, minorities and 
non-minorities will be appointed within zones 
on a 1-to-4 ratio;

e. All officers whose names appear on the eligible 
list and who are otherwise eligible will be 
offered appointment.

3. Article VI - Development of Future 
Selection Procecures______________

This article requires the parties to cooperate to develop 
new selection procedures that have no adverse racial impact 
and are job related. It recognizes that selection devices 
other than written tests are important components of any selec­
tion procedure for action jobs such as corrections lieutenant 
and captain. See p. 21, infra. This article lists specific 
approaches that have been used successfully in other situations, 
to help achieve the dual goal of avoiding adverse impact and

2/ The position of a few candidates have changed due to 
adjustments ot test score, veterans or seniorty credits.
3/ Includes the names of persons who were disqualified 
subsequent to publication of the eligible list.

6



and developing job related selection procedures, but it does 
not mandate adoption of any of them. These provisions are
are intended to prevent reoccurrence of the same events that 
precipitated the Kirkland I and Kirkland II litigation.

Finally, this article requires administration of a new 
correction captain's examination within 12-15 months and 
publication of an eligible list that is based on that exami­
nation within six months of administration of the examination 
This provision is intended to partially limit the racial 
effect of the use of the results of examination 36-808 to 
rank candidates for appointment to the rank of corrections 
lieutenant. The racial effect referred to is a result of a 
CSC rule that disqualifies officers who do not hold permanent 
corrections lieutenant positions from competing-in the 
promotion examination for corrections captain. Thus those 
officers who were at the top of the eligible list that is 
based on examination 36-808 and were appointed prior to 
'January 30, 1982, were permitted to sit for examination 
37-526 for corrections captain. These officers are virtually 
all white.

4. Article VII - Attorneys’ Fees,
Costs and Expenses___________

Negotiation of the amount of attorneys' fees, costs and •
expenses due plaintiffs' counsel has been deferred.

Ill.
Standards Governing Settlement of 

Class Actions
In reviewing the proposed settlement of this class action 

under Rule 23(e), Fed. R. Civ. P., the Court should be guided



by the following principles:
1. The law in general, and Title VII in particular,

favor voluntary settlements. Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44 (1974); Patterson v. Newspaper & Mail
Deliverer Union of N.Y. & Vicinity, 514 F.2d 767, 771
(2d Cir. 1975); Vulcan Soc. of Westchester Co. v. Fire
Dept., City of White Plains, 505 F.Supp. 955, 965 (S.D.N.Y.
1981); United States v. City of Miami, 614 F.2d 1322, 1331
(5th Cir. 1980), vacated on other grounds, 664 F.2d 435

4/(1981) (en banc); United States v. City of 'Jackson,
5/519 F.2d 1147, 1151 (5th Cir. 1975). in class actions 

such as the instant case, "there is an overriding public

4/ The en banc court vacated the panel decision in part and 
and in part remanded the case for a limited trial on-the merits 
as to those portions of the consent decree entered into between 
the City of Miami and the United States that purported to bind 
the police officer union. Plaintiffs have cited to both the 
panel and the en banc opinions. The en banc court either re­
affirmed those principles announced by the panel upon which the 
plaintiffs here rely or did not disturb them. For example the proposition expressed in the text was reaffirmed in the.en banc 
opinion written by Judge Rubin. See United States v. City of 
Miami, Fla., 664 F. 2d 435, 442 (5th Cir. 1981).
5/ The rationale for courts' endorsements of settlements was 
explained in the seminal case of Florida Trailer and Equipment 
Co v. Deal, 284 F.2d 567, 571 (5th Cir. 1960):

Of course, the approval of a proposed settlement 
does not depend on establishing as a matter of legal 
certainty that the subject claim or counterclaim is or 
is not worthless or valuable. The probable outcome of 
the event of litigation, the relative advantages and 
disadvantages are, of course, relevant factors for 
evaluation. But the very uncertainty of the outcome 
in litigation, as well as the avoidance of wasteful 
litigation and expense, lay behind the Congressional infusion of a power to compromise. This is a recogni­
tion of the policy of the law generally to encourage settlements. This could hardly be achieved if the test 
on hearing for approval meant establishing success or failure to a certainty. Parties would be hesitant to

8



interest in favor of settlement." Cotton v. Hinton, 559
F. 2d 1326/ 1331 (5th Cir. 1977). Accord, City of Miami, 664

6/F.2d at 441-42 (Rubin); Airline Stewards & Stewardesses 
Assn., Local No. 550 v. American Airlines Inc., 573 F.2d 
960, 963 (7th Cir. 1978); Armstrong v. Board of School 
Directors, City of Milwaukee, 616 F.2d 305, 313 (7th Cir.
1980). As the Sixth Circuit has held,

Settlement agreements should . . .  be upheld 
whenever equitable and policy considerations so 
permit. By such agreements are the burdens of 
trial spared to the parties, to other litigants 
waiting their turn before overburdened courts, and 
to the citizens whose taxes support the latter.
An amicable compromise provides the more speedy and 
reasonable remedy for the dispute.

Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.),
cert, denied, 429 U.S. 862 (1976).

2. A proposed settlement in a Title VII class
action is entitled to a presumption of validity. United States
v. City of Miami, 614 F.2d at 1333 and 664 F.2d at 440; United
States v. City of Alexandria, 614 F.2d 1358, 1361 (5th Cir.

5/ continued
explore the likelihood of settlement apprehensive as 
they would be that the application for approval would 
necessarily result in a judicial determination that 
there was no escape from liability or no hope of re­covery and hence no basis for a compromise.

6/  There were five opinions written by members of the court 
sitting eii banc. None of the opinions was joined by a majority. 
In the text of this memorandum plaintiffs have identified the 
author of the opinion cited.

9



1980) .~
3. Furthermore, courts have recognized that a 

consent judgment is essentially a contract between the parties, 
United States v. City of 'Jackson, 519 F.2d at 1151; Regalado
v. 'Johnson, 79 F.R.D. 447, 450 (D. 111. 1978). The question 
to be decided is not what a court might or might not order 
after a determination of the merits of the action. See 
Patterson v. NMDU, 514 F.2d at 769. Therefore the issues 
raised by objectors or intervenors in opposition to a consent 
judgment's terms "should not be decided on the basis of Title 
VII law, but rather must be decided on the basis of legal 
principles regulating judicial review of settlement argeements." 
Airline Stewards, 573 F.2d at 963 Accord, State of West Vir­
ginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1086 (2d Cir.
1971). There should be no attempt to precisely delineate the 
parties' legal rights. United States v. City of 'Jackson, 519 
F.2d at 1152. See also fn. 5, supra.

4. The class must be properly notified of the 
proposed settlement and of their right to object to the settle­
ment. Each objection should be made a part of the record.
Class members and other persons raising substantial objections

7/ Although the Miami and Alexandria cases were Title VII 
enforcement actions brought by the federal government, the same basic principles apply where, as here, the plaintiffs as 
"private attorneys general" have brought a class action to 
enforce the policies established by Congress. See, e.g., 
Cotton v. Hinton, 559 F.2d at 1 3 3 1 ;  Airline Stewards Local 
550 v. American Airlines, Inc., 573 F.2d 960 ,  963 (7th Cir.) 
cert, denied, 439 U.S. 876 (T978 ) ;  Dawson v. Pastrick, 600  
F.2d 70 (7th Cir. 1 9 7 9 ) .

10



have the right to be heard, to be represented by an attorney 
and to have a reasoned response by the Court on the record. 
Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832 
(9th Cir. 1976). See generally, Manual for Complex Litigation 
§1.46 (West 1977).

5. The issue at the hearing is whether the
proposed settlement is fair, adequate, and reasonable in the
circumstances of the particular case. Manual for Complex
Litigation, § 1.46 at 57; Vulcan, 505 F.Supp. at 961;
Armstrong, 616 F.2d at 314; City of Alexandria, 614 F.2d at
1361 & n.6; City of Miami, 664 F.2d at 460 ('Johnson). As
Chief 'Judge Weinfeld has remarked:

[1] The Court's function ... is not to reopen 
and enter negotiations with the litigants in the 
hope of improving the settlement to meet an 
objector's particular objections; nor is the Court 
called upon to substitute its business judgment for 
that of the parties who worked out a settlement after hard, arm's-length, good-faith bargaining.
Rather, it is called upon to evaluate the probabil­
ities of success upon a trial and to compare the 
benefits thereof with the terms of compromise.

Kuck v. Berkey Photo, Inc., 87 FRD 75, 78 (S.D.N.Y. 1980).
Accord, Patterson v. NMDU, 384 F.Supp. 585, 587 (S.D.N.Y. 1974,
1980); aff'd 514 F.2d 767 (2d cir. 1975). However, the court
should not simply rubber stamp the agreement of the parties.
It must satisfy itself that the consent "decree is not unlawful,
unreasonable or inequitable." City of Alexandria, 614 F.2d at
1361. Accord, Vulcan, supra, 505 F.Supp. at 961.

6. In deciding whether the proposed settlement is 
fair, adequate, and reasonable, the Court should consider several 
factors: the strength of plaintiffs' case; the reasonableness



of the settlement in light of the best possible recovery; the 
experience and views of plaintiffs' counsel; whether there is 
any evidence of collusion; the extent of discovery and the 
stage of the proceedings; the expected length, complexity, 
and expense of further litigation; and objections to the 
settlement. Manual for Complex Litigation, supra, § 1.46 at 
56; Armstrong, 616 F.2d at 314; Cotton v. Hinton, 559 F.2d at 
1330-31; Detroit v. Grinnel Corp., 495 F.2d 448, 463 (2d Cir. 
1974); Ross v. Saltmarsh, 500 F.Supp. 935, 943 (S.D.N.Y. 1980).

7. The Court has an obligation to safeguard the 
rights of the members of the class. Armstrong, 616 F.2d at 
313. In determining whether the proposed settlement 
provides fair, adequate, and reasonable relief to the class, 
the court should recognize that compromise is the essence of 
a settlement, and the court should not require the parties to 
litigate the merits of their claims and defenses. Id. at 315; 
Detroit v. Grinnell Corp., 495 F.2d at 462. Airline Stewards, 
573 F.2d at 963-64; Kuck v. Berkey Photo, Inc., 87 FRD at 80.

8. In determining the fairness, adequacy, and 
reasonableness of the proposed settlement, the Court should 
also consider the public interest, as well as the interests
of non-class members who may be affected by the consent decree 
- here, incumbent non-minority corrections officers whose 
interests are represented in this lawsuit by the Althiser and 
McClay groups of intervenors. Armstrong, 616 F.2d at 313;
City of Miami, 614 F.2d at 1332; Vulcan, 505 F.Supp. at 962.

12



9. A settlement providing for race-conscious 
hiring and promotion relief should be approved where it is 
a reasonable remedy for alleged discrimination. Prate v. 
Freedman, 583 F.2d at 47; Patterson v. NMDU, 514 F.2d at 
772-73; Vulcan, 505 F.Supp. at 962; City of Alexandria,
614 F.2d at 1366; City of Miami, 614 F.2d at 1338-40; Cf. 
Guardians Assn, of N.Y.C. Police Dept, v. Civil Service 
Comm, of N.Y.C., 630 F.2d 79, 108 (1980).

a. Percentage goals should be substan­
tially related to ending a pattern of discrimination. 
This pattern may be shown by statistics. There is
no requirement of a prior judicial determination of 
a constitutional or statutory violation, see Setzer. 
v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir. 
1981). However a plurality of the members of the 
Fifth Circuit would require such a showing where an 
objecting party's contractural or statutory rights 
would be prejudiced by a decree that purports to bind 
such parties. City of Miami, 664 F.2d at 447.

b. The plan should not require the hiring 
or promotion of unqualified persons.

c. The plan should not unnecessarily 
trammel the interests of non-minority employees or 
act as an absolute bar to their advancement.

d. The plan should be temporary and subject 
to modification. See Setzer, 657 F.2d at 968-69.

13



10. Where "it has been established that a selec­
tion procedure has been unlawfully used, an appropriate 
remedy should forbid the use of that procedure or its 
disparate racial impact. When it also appears that the 
employer had discriminated prior to the use of the challenged 
selection procedures, then it may also fashion some form of 
affirmative relief, as an interim or long-term basis to 
remedy past violations." Guardians, 630 F.2d at 108. More­
over, "the constitutional guarantee of equal protection 
does not prohibit states from taking appropriate measures to 
remedy the effects of past discrimination", Valentine v.
Smith, 654 F.2d 503 (8th Cir. 1981) and implementation of 
race-conscious remedies are permitted without specific 
findings of previous violation. See United 'Jewish Orgs. of 
Williamsburg v. Carey, 430 U.S. 144, 162-64 (1977); D.P.O.A. 
v. Young, 608 F.2d 671, 694 (6th Cir. 1979).

11. Where the plaintiffs and the defendant-employer 
have agreed to a stipulation settling their Title VII case, 
intervening third parties— such as the intervenors in the 
instant case— have the right to file objections to the 
settlement and the right to attempt to demonstrate at the 
fairness hearing that the relief provided in the settlement 
has an unreasonable or unlawful impact on them. See Dawson 
v. Pastrick, 600 F.2d at 75-76; Airline Stewards, 573 F.2d at 
963-65; EEOC v. AT & T Co., 556 F.2d 167, 173 (3d Cir.1977) 
(interest of a third party in a consent decree limited the 
appropriateness of the remedy). The following principles

14



apply in this situation:
a. The intervenors have no standing to 

challenge any provision of the consent decree save those 
that adversely affect their rights. See City of Miami,
664 F.2d at 444-45 (Rubin), 453 (Gee), and 462 ('Johnson)

b. The intervenors cannot force the principal 
parties to litigate the merits of the case against their 
will. Dawson, 600 F.2d at 75; Airline Stewards, 573 
F.2d at 963-64; City of Miami, 664 F.2d at 453, n. 11 
(Gee).

c. The use of ratios, goals, timetables, 
and other race-conscious remedies to correct discri­
mination or underutilization and to implement affirmative 
action in areas such as recruitment, hiring, training, 
and promotion is not unlawful, unjustified, or inappro­
priate, where as here, they are reasonably related to 
the legitimate state goal of achieving equality of 
employment opportunity. See Prate v. Freedman, 583 
F.2d 42, 47 (2d Cir. 1978); Guardians, 530 at 108; Vulcan 
505 F.Supp. at 963; City of Alexandria, 614 F.2d at 
1365-66; United Steelworkers of America v. Weber, 443 U.S 
193 (1979); Detroit Police Officers Ass'n v. Young, 608 
F.2d 671 (6th Cir. 1979), cert. denied, 450 U.S. 903, 
(1980); City of Miami, 664 F.2d at 442 (Rubin), 460-61 
('Johnson); EEOC v. A T & T Co., 556 at 171-72, United 
States v. Allegheny Ludlum Industries, Inc., 517 F.2d 826 
835 (5th Cir. 1975), cert, denied, 425 U.S. 944 (1976).

15



d. The stipulation may properly include 
provisions requiring affirmative action to rectify 
the effects of prior racial discrimination. See,
Prate v. Freedman, supra, 583 F.2d at 47; Guardians, 
supra, 530 F.2d at 108; Vulcan, supra, 505 F.Supp. at 
962; City of Miami, 664 F.2d at 442 (Rubin) and 461 
CJohnson); and City of Alexandria, 614 F.2d at 1365.

e. The expectations of incumbent non-minority 
officers who hope to benefit from a continuation of dis­
criminatory practices do not provide a valid basis for 
refusing to approve the stipulation. See, Franks v.
Bowman Transportation Co., 424 U.S. 747, 775-78 (1976);
City of Miami, 614 F.2d at 1341; Detroit Police Officers 
Ass'n, 608 F.2d at 696; Dawson, 600 F.2d at 76; EEOC v.
A T & T Co., 556 F.2d at 173; Airline Stewards, 573 F.2d 
at 964-965.

f. To the extent that any expectations of in­
cumbent white officers may be characterized as "vested
rights" under a collective bargaining agreement, Civil

8/Service Commission rules, or state law,- those rights 
are not absolute but must give way to reasonable affirmative 
action, although in the Fifth Circuit the district court 
would be required to find unlawful discrimination prior to 
imposition of remedies which override any such vested rights.

8/ In this case none of the limited intervenors have rights 
that could be characterized as "vested" under either CSC rules 
or New York law. The defendants have addressed this issue in 
detail in their submissions.

16



supra, 664 F.2d at 446 (Rubin) and 451-52 (Gee);
Sarabia v. Toledo Police Patrolman's Ass'n, 601 F.2d 914

9/(6th Cir. 1979). Even in cases where "vested rights" 
are involved, there is no requirement of a showing of 
unlawful discrimination by the objecting party before 
such rights are disturbed. See Zipes v. Trans World
Airlines, ___ U.S. ___, 71 L.Ed.2d 234, 247 (1982).

g. If the court approves the proposed 
settlement, the plaintiffs will be entitled to 
their reasonable costs and counsel fees incident to 
their defense of the provisions of the consent decree. 
The costs and fees incurred by plaintiffs due to the 
intervenors' conduct in resisting the settlement may be 
assessed against them. Haycraft v. Hollenbach, 606 F.2d 
128 (6th Cir. 1979). If the intervenors persist 
to the point of obstinacy in pressing meritless objec­
tions to the decree, they may be liable under the "bad 
faith" doctrine for an award of costs and fees to the 
defendants as well as to the plaintiffs. Cf.
Haycraft v. Hollenbach, supra; Prate v. Freedman, 583 
F.2d 42 (2d Cir. 1978).

9/ In Sarabia, a case challenging employment discrimination 
Tn the Toledo Police Department, the plaintiffs, the City, and 
the Patrolman's Association (TPPA) entered into a consent decree 
requiring the hiring of more black officers. Subsequently, the 
plaintiffs and the City jointly moved the Court for an order suspending the civil service "rule-of-three" and thus permitting 
the appointment of all qualified black applicants without regard 
to their rank on the City's eligible lists. The TPPA opposed 
the motion and later appealed from the order granting the motion. 
The Sixth Circuit held that it was within the district court's 
power under the consent decree to suspend the civil service rule 
on the ground that it interfered with the achievement of the goals 
of the decree.

17



12. If the court concludes after the hearing 
that it cannot approve the settlement, it should explain its 
objections to the parties and lend all possible assistance 
to them in reaching a reasonable accommodation. If the 
court feels that it is unable to approve the settlement 
without additional information, the court may hold such 
further hearings as it deems necessary. City of Miami,
614 F.2d at 1333.

13. If the Court approves the settlement, its 
decision will be entitled to much deference on appeal; a 
decision approving a consent decree will be reversed only 
if it clearly appears that the district court abused its 
discretion. Patterson v. NMDU, supra, 514 F.2d 771; Cotton,
559 F.2d at 1331; City of Miami, 614 F.2d at 1334-35 and 664 
F.3d at 442; Armstrong, 616 F.2d at 315; EEOC v. A T & T Co., 
556 F.2d at 173-74. On the other hand, if this Court disap­
proves the settlement, it must clearly articulate the 
reasons for its disapproval, and its decision will be subject 
to de novo review by the court of appeals. City of Alexandria, 
614 F.2d at 1362.

IV.
The Stipulation For Settlement Satisfies All 

Applicable Standards And Should 
_______________ Be Approved_______________

Plaintiffs submit that the stipulation offered by the 
parties satisfies all of the applicable standards and should be 
approved. Most of the standards listed above are clearly 
satisfied and require no further discussion. We limit our 
comments here to those that merit some discussion.

18



A. The Record Evidence Establishes A PrimaFacie Case of Unlawful Racial Discrimination And 'Justifies The Remedies Provided In The Stipulation_________________________________

It is well settled that in a disparate impact case such as
this, plaintiff establishes a prima facie case of a violation of
Title VII of the Civil Rights Act of 1964 by showing that a
facially neutral practice had a significantly discriminatory

10/impact.—  see Guardians, 630 F.2d at 89; Griggs v. Duke Power Co. 
401 U.S. 424, 431 (1971); Albermarle Paper Co. v. Moody, 422 U.S. 
405 (1975); Dothard v. Rawlinson, 43 U.S. 321 (1977);
Connecticut v. Teal, ___ U.S. ___, 73 L.Ed.2d 130, 137 (1982).
The record here shows that the selection procedure - principally 
a paper and pencil test - utilized by defendants to determine 
both who shall be appointed to the rank of correction lieutenant 
and the sequence of such appointments, operates to severely 
disadvantage minority corrections officers. Minority officers 
represent approximately 23% (169/739) of the eligible corrections 
officers who sat for examination 36-808 but were only 9%

10/ While not relevant, given the posture of this case, the 
employer would then be obligated to demonstrate that the 
challenged employment practice has a manifest relationship 
to the job in question. Even if the employer was able to dis­charge its burden, the plaintiff may prevail if he shows the 
availability of less discriminatory alternatives. See Albermarle, 422 U.S. at 4256; United States v. State of New York, 

F.Supp. , 21 EPD 1| 30,314 p. 12,704 (N.D. N.Y. 1979).

19



(20/22) of those appointed as of ’July 23, 1982. See Affidavit 
of Dr. 'James Outtz. This difference is statistically signifi­
cant and fails to meet the so-called 4/5 "rule of thumb" used

1 Vby the EEOC to determine adverse impact. Affidavit of 
Dr. 'James Outtz. The result is the same if comparisons are 
made based on those who passed examination 36-808 (22% minority) 
versus those who were appointed (9% minority). See Id.

The record shows, not only that plaintiffs have made out 
a prima facie case, but that they probably would win if the 
case were fully litigated. See Affidavit of Dr. 'James Outtz.
In this regard it is useful to observe the striking similarities 
between the facts of this case and those which led 'Judge Lasker 
to declare unconstitutional the selection procedure used in 
1972. See Kirkland v. NYS Dept, of Correctional Services, 374 
F.Supp. 1361 (S.D. N.Y. 1974). There, as here, plaintiffs 
challenged the use of a selection procedure - principally a 
paper and pencil test - for determining who, among otherwise 
eligible candidates would be appointed to the rank of correc­
tions sergeant (i.e., as a pass/fail device) and the sequence 
of such selections (i.e., as a device to rank order candidates 
who passed the test). The results of that test produced severe

11/ Under the 4/5 rule, adverse impact is deemed to exist if 
the difference in selection rates of the two groups being 
compared - here minority and non-minority officers - is less 
than 80% of the rate of selection for the group with the 
highest selection rate. See 29 CFR § 1607.4d. In this case 
the selection rate for minority officers as of 'July 28, 1982 
was 0.1183 (20/169). See Stipulation, Art. I §§ 8-9. The 
rate for non-minority officers was 0.3544. I<3. Thus, minority
officers were selected at only 33.4% (0.1183/0.3544) of the 
rate of selection of their non-minority counterparts, a rate 
well below the 80% floor suggested by the U.G.E.S.P., 29 
CFR § 1607.4d.

20



adverse impact against minority officers. In commenting on 
the failure of defendants to demonstrate that the test bore
a manifest relationship to the job of corrections sergeant,
'Judge Lasker noted:

More serious perhaps than specific 
item flaws is the fact that, regardless 
whether 34-944 adequately tests the at­
tributes it is intended to measure, it 
fails to examine a number of traits, skills, 
and abilities which witnesses for both sides 
singled out as important to the Sergeant 
job. Among these are leadership, under­
standing of inmate resocialization, ability 
to empathize with persons from different 
backgrounds, and ability to cope with crisis 
situations.

374 F.Supp. at 1378. Possession of these qualities is at least 
as important where the job under consideration is the more 
responsible one of corrections lieutenant. The Uniform Guidelines 
on Employee Selection Procedures ("U.G.E.S.P.”) likewise recog­
nizes that paper and pencil tests simply are not suited to 
evaluate the vitally important abilities which 'Judge Lasker 
identified. See U.G.E.S.P., 29 CFR 11 1607.14c(l) and Questions 
and Answers to Clarify and Provide Common Interpretation of the 
U.G.E.S.P., question number 78, reproduced at FEP 11 401:2324.

These considerations led to the development, under court 
supervision, of a new selection procedure for corrections 
sergeants that was job related. That selection procedure 
included use of a job performance rating which attempted to 
measure many of the very elements not measured on a paper and 
pencil test. See Kirkland v. NYS Dept, of Correctional Svs.,
628 F.2d 796, (2d Cir. 1980). The use of that selection 
procedure was approved by 'Judge Lasker and the Second Circuit.

21



See Kirkland, 482 F.Supp. 1179 (S.D. N.Y. 1980) aff'd. 628
F.2d 796 (2d Cir. 1980). Despite this experience defendants 
in 1980 returned to reliance on a paper and pencil test as 
the principle means of selection.

Where a selection procedure is used as a rank ordering 
device, an employer is obligated to demonstrate that such use 
is appropriate. See U.G.E.S.P., 29 CFR K 1607.14c(9); Guardians, 
630 F.2d at 101; Vulcan, 505 F.Supp. at 964. That showing 
has not been made. Given these circumstances it is not sur­
prising that defendants have elected to settle.

B. In The Opinion of Plaintiffs' Counsel The
Settlement Is Fair, Reasonable And Adequate;
There Is No Evidence Of Collusion; And 
Settlement Now Will Avoid Substantial Future 
Litigation Expenses._________________________

Plaintiffs' counsel has represented to the court that in 
his opinion the provisions of this Stipulation of Settlement are 
fair and reasonable under all the circumstances of this case 
and in full compliance with prevailing law. See Affidavit of 
0. Peter Sherwood. Moreover, the Office of the Attorney General 
of the State of New York has joined plaintiffs in agreeing that 
the terms of this Stipulation are consistent with the laws of the 
State of New York. See Stipulation, Art. I, § 14.

There is no evidence of collusion present in this case.
Extensive discovery has been undertaken and the parties 

are fully aware of the strengths and weaknesses of the case.
See Affidavit of 0. Peter Sherwood.

The trial of this case would have been costly. It would
22



have entailed extensive use of expensive expert testimony as 
well as many hundred hours of lawyer time. Moreover, the
delay that would have resulted from a trial would have severely 
damaged plaintiffs' interests, and effectuation of an adequate 
remedy after the delay occasioned by a trial would have been 
enormously disruptive and difficult.

Adequate notice has been given as is evidenced by the flood 
of paper that has reached this court following publication of the 
notice of settlement. See also the Affidavit of Ramon Rodriguez.

Only endorsements of the settlement were received from 
members of the plaintiff class. Hundreds of objections were 
received from non-minority officers. Most of these were generated 
by Council 82.

C. The Objections Of The Intervenors Provide No 
Basis For Refusal To Approve This Settlement

Non-minority officers charge that this Settlement should not 
be approved. They claim that the race-conscious aspects of 
Article III are unlawful. They also oppose the guidelines 
governing the development and administration of future selection 
procedures, Stipulation Art. VI. See Statement of Roman Beck at 
Oct. 4, 1982 conference. Finally, they insist that no remedy 
can be approved until plaintiffs have prevailed following a full 
trial on the merits.

Intervenors' claims lack merit.
The parties to this litigation are entitled to resolve their 

differences prior to trial via a court approved settlement. See

23



pp. 8-10, supra. The fact that defendants have not been re­
quired to admit liability does not prevent approval and imple­
mentation of a settlement which contains race-conscious provi­
sions, provided such provisions are reasonable. See pp. 13-15, 
supra.

The race-conscious features of this settlement are well 
within the zone of permissible affirmative action programs.
In Guardians, the Second Circuit ruled:

As a general matter Title VII relief should 
at least assure compliance with the law. When it has been established that a selection procedure 
has been unlawfully used, an appropriate compli­ance remedy should forbid the use of that procedure, 
or its disparate racial impact, and may properly assure the establishment of a lawful new procedure. 
When it also appears that the employer has discrim­
inated prior to the use of the challenged selection 

- procedure, then it may also be apppropriate to 
fashion some form of affirmative relief, on an interim and long-term basis, to remedy past 
violations (emphasis added).

630 F.2d at 108. See also Vulcan, 505 F.Supp. 962. This 
settlement merely requires partial elimination of the dis­
parate racial impact resulting from the use of the eligible 
list that is based on examination 36-808 and establishment 
of new non-discriminatory selection procedures. It requires 
generally that the next series of appointments be made in a 
manner that raises the proportion of minority appointees 
to 21%. See Stipulation, Art. V, § 2. Minorities consti­
tute 23% of the pool of eligibles who took examination 
36-808. This interim procedure does not require that the 
21% minority appointment ratio be rigidly maintained. If 
there are no minorities who are eligible for appointment

24



remaining in the zone from which selections are being made, 
non-minority officers will be appointed even if such appoint­
ments cause the proportion of minority appointees to fall 
well below 21%. The parties will use this interim period to 
develop new, non-discriminatory selection procedures.

We expect intervenors to argue that Guardians should be 
distinguished because is refers to what a court should order 
upon a finding of a violatoin. Guardians concerned the 
power of a court to order an unwilling defendant to adopt 
remedial race-conscious hiring goals. Clearly, absent 
consent, a court may not order a defendant to alter any of 
its employment practices without first determining that a 
violation of law has occurred. However, the law has never 
refused to permit use of voluntary remedial action that 
contains all of the features that might have been included 
in a judgment entered after trial. See Vulcan, 505 F.2d at 
962; Prate v. Freedman, 585 F.2d at 47; and the cases cited 
at p. 13, supra. An objecting intervenor simply cannot 
require the original parties to litigate fully before a 
judgment can be entered that is equivalent to one that could 
be entered after trial. See p. 15, supra.

D. The Provisions Of The Stipulation Not 
Unnecessarily Trammel The Interests Of 
Any Of The Intervenors________________

The central objections of the intervenors are their 
challenges to the provision of Article V. They argue that 
the provision for appointment of minorities within zones up 
to 21% will impair the advancement opportunities of 
non-minority officers.

25



As noted, p. 15, supra, a remedial settlement may 
lawfully include the use of goals, ratios, timetables and
other race-conscious remedies. Further, the expectations 
of incumbent non-minority officers who hope to benefit from 
continuation of the existing system do not provide a basis 
for refusing to approve the consent decree. See p. 16, 
supra. Nevertheless, the interests of incumbent white 
officers are not irrelevant. To the contrary, a settlement 
which unnecessarily trammeled their interests or acted as an 
absolute bar to their advancement would be improper. See p.
13, supra.

This however, is not such a settlement. Instead, this 
settlement ensures that minority appointments approximate 
their representation in the pool of eligible officers who 
competed for appointment. Over 200 non-minority offficers 
have already been appointed. These officers will continue 
to hold their appointments and the superior seniority benefits 
afforded by those appointments, despite the fact that those 
appointments were obtained on the basis of a non-job related 
selection procedure that unfairly disadvantaged minority 
officers. The non-minority officers who have not yet been 
appointed have little about which to complain for they have 
been merely accorded their rightful place. As the Fifth 
Circuit has held, no person has a constitutional or statutory 
right to:

an eligibility ranking which results from in­
validated selection procedures that have been 
shown to disqualify blacks at a disproportionate 
rate. This is so because by definition 
such criteria have not been shown to be predic-

26



tive of successful job performance. Hence, there is no reliable way to know that any 
applicant is truly better qualified than 
others who have been rejected. NAACP v. 
Allen, 493 F.2d 614, 618 (5th Cir. 1974).

Conclusion

The settlement represents an appropriate and necessary 
response to a longstanding need to have a fully integrated 
corrections department where more than one-half of the inmate 
population is minority. Its provisions are in accord with 
the applicable law. It should be approved.

Respectfully submitted,

RONALD L. ELLIS 
'JUDITH REED 
PENDA 0. HAIR

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys for Plaintiffs

27



CERTIFICATE OF SERVICE

I, 0 PETER SHERWOOD, hereby certify that a copy of the 
foregoing PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF ’JOINT 
MOTION OF ALL PARTIES FOR APPROVAL OF STIPULATION FOR 
DISMISSAL OF CLASS ACTION LITIGATION was duly served upon 
defendants by hand delivering a copy same to Barbara Butler, 
Esq., N.Y. State Department of Law, Litigation Bureau, 2 
World Trade Center New York, New York 10047; Herbert B. 
Halberg, Esq., Beck, Halberg & Williamson, 40 Exchange Place 
New York, New York 10005; and Diane Rowley-Toop, Esq., c/o 
Coudert Brothers, Pan American Building, 200 Park Avenue, New 
York, New York 10166 on this 11th day of October, 1982.