Correspondence from Mayfield to Himmelstein

    FOR THE SECOND CIRCUIT 
NO. 82-7830

EDWARD L. KIRKLAND, et al.,
Plaintiffs - Appellees, 

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

Defendants-Appellees

On Appeal from the United States District Court 
for the Southern District of New York

BRIEF OF PLAINTIFFS-APPELLEES 
EDWARD KIRKLAND, et al.

JACK GREENBERG
0. PETER SHERWOOD 
PENDA D. HAIR 

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

Attorneys for Plaintiffs-Appellees



TABLE OF CONTENTS

I. INTRODUCTORY STATEMENT ............................ 1
II. STATEMENT OF THE CASE..............................  2

III. STATEMENT OF FACTS.................................  8
1. Introduction .................................. 8
2. Development of Examination No. 36-808 .......  8
3. The Settlement Agreement .....................  15

IV. SUMMARY OF ARGUMENT ...............................  20
V. ARGUMENT ........................................... 2 0

1. Introduction .................................. 20
2. The District Court Properly Exercised Its 

Discretion And Approved The Settlement
Agreement .....................................  21
a. A Settlement Should Be Approved If It 

Is Fair, Reasonable And Adequate Under
All Of The Circumstances ................. 21

b. The District Court Properly Applied The
Law In This Case .........................  30

c. Intervenors Claims Of Error Are
Meritless ................................. 31

3. The District Court's Decision To Grant
Intervention Subject To Certain Conditions 
Constituted An Appropriate Exercise Of Dis­
cretion ......................................  40

VI CONCLUSION ........................................ 4 2

Page



TABLE OF CASES

Cases Pa^e
Airline Stewards & Stewardesses Assn., Local No. 550 

v. American Airlines Inc., 573 F.2d 960 (7th 
Cir 1978) .................................... 22,25,27,

28
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 33
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) ....................................... 21
Allen Calculators, Inc. v. National Cash Register 

Co., 322 U.S. 137 (1944) .................... 40
Armstrong v. Board of School Directors, City of

Milwaukee, 616 F.2b 305 (7th Cir. 1980) .... 22,23,24,
25,29

Baker v. City of Detroit, 483 F. Supp. 930 (E.D.
Mich. 1979) .................................. 10

Bushey v. New York State Civil Service Commission, 
Civil Action No. 82 CV 1219 (N.D. N.Y) ..... 38

Connecticut v. Teal, U.S. , 73 L.Ed.2d 130 
(1982) ....................................... 34

Cotton v. Hinton, 559 F.2d 1326 (5th Cir.
1977) ........................................ 22,24,29

Dawson v. Pastrick, 600 F.2d 75 .................. 27,28
Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.

1974) ........................................ 24,25
Detroit Police Officers Ass'n v. Young, 608 F.2d 

671 (6th Cir. 1979), cert, denied, 450 U.S. 
903 (1980) ................................... 26,28,33

EEOC v. AT & T Co., 556 F.2d 167 (3d Cir.
1977) ........................................ 27,28,29

Florida Trailer and Equipment Co. v. Deal, 284 F.2d 
567 (5th Cir. 1960) ......................... 23

Franks v. Bowman Transportation Co, 424 U.S. 747 
( 1976) ................................... . 28

l



Cases Page

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .... 
Guardians Association v. Civil Service, 630 F.2d 79

(2d Cir. 1981) ............................... 34
Guardians Assn, of N.Y.C. v. Civil Service Commis­

sion, 527 F. Supp. 751 (S.D.N.Y. 1981) .....  22,25,26,
28,32,33

Kirkland v. New York State Dept, of Correctional 
Services, 374 F. Supp. 1361 (S.D.N.Y. 1974), 
modified 520 F.2d 420 (2d Cir. 1975), cert. 
denied, 429 U.S. 823 (1976), on remand, 482 
F. Supp. 1179 (1980) aff'd. 628 F.2d 796 (1980),
cert, denied 450 U.S. 980 ( 1981) ............ passim

Kuck v. Berkey Photo, Inc., 87 FRD 75 (S.D.N.Y.
1980) ........................................  24,25

Patterson v. Newspaper & Mail Deliverers Union of 
N.Y. & Vicinity, 514 F.2d 767 (2d Cir.
1975) ........................................  21,22,24,

25,29
Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) .... 25,27,28
Regalado v. Johnson, 79 F.R.D. 447 (D. 111.

1978) ........................................  22
Ross v. Saltmarsh, 500 F. Supp. 935 (S.D.N.Y

1980) ........................................  24
Sarabia v. Toledo Police Patrolman's Ass'n., 601

F . 2d 914 (6th Cir. 1979) ....................  29
Setzer v. Novack Investment Co., 657 F.2d 962 (8th

Cir. 1981) ...................................  25
State of West Virginia v. Chas. Pfizer & Co., 440

F . 2d 1079 ( 2d Cir. 1971) ....................  22
United Jewish Orgs. of Williamsburg v. Carey, 430

U.S. 144 ( 1977) .............................. 26
United States v. Alleghey Ludlum Industries, Inc.

517 F.2d 826 (5th Cir. 1975), cert, denied,
425 U.S. 944 ( 1976) ......... '...............  28

li



United States v. City of Alexandria, 614 F.2d 1359
(5th Cir. 1980) .............................  22,23,24,

28
United States v. City of Jackson, 519 F.2d 1147

(5th Cir. 1975) .............................. 10,22
United States v. City of Miami, 614 F.2d 1322 (5th 

Cir. 1980) vacated on other grounds, 664 F.2d
435 (1981) ...................................  21,22,23,

25,26,27,
28,29,36

United States Postal Service, v. Brennan, 578 F.2d
188 (2d Cir. 1978) ...........................  40

United Steelworkers of America v. Weber, 443 U.S.
193 ( 1979) ...................................  28

Valentine v. Smith, 654 F.2d 503 (8th Cir.
1981) ........................................  26

Vulcan Soc. of Westchester Co. v. Fire Dept., City 
White Plains, 505 F. Supp. 955 (S.D.N.Y.
1981) ........................................  23,25,28

Williams v. City of New Orleans, No. 82-3435 Slip
op. (5th Cir., Dec. 16, 1982) ............... 21,22,33,

37,39
Zipes v. Trans World Airlines, U.S. , 71

L .Ed. 2d 234 ( 1982) ..........................  29

STATUTES, RULES and OTHER REFERENCES
F.R. App. P. Rule 11 .............................  7
F.R. Civ. P., Rule 23(3) .........................  21
42 USC §1981 ......................................  2
42 USC §1983 ......................................  2
Title VII of Civ. Rts. Act 1964 42 U.S.C.

§2000e .......................................  2
Title VII of Civ. Rts. Act 1964 42 U.S.C. §2000e-

2(h) .........................................  2

Cases Page

- iii -



STATUTES, RULES AND OTHER REFERENCES Page

29 CFR §1602 ......................................  9
Uniform Guidelines on Employee Selection Procedures

29 CFR §1607 ................................. 13
Manual for Complex Litigation, §1.46 at 57 ......  23,24

IV



Note on Form of Citation

The following forms of citations are used frequently in 
this brief.

Citation Description
"A. Three volume Appendix prepared 

by intervenors-appellants, 
including subsequently filed 
"Supplemental Appendix."

"PSA Supplemental Appendix of the 
Parties filed jointly by 
plaintiffs and defendants.

v



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 
NO. 82-7830

EDWARD L. KIRKLAND, et al.,
Plaintiffs - Appellees,

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

Defendants-Appellees

On Appeal from the United States District Court 
for the Southern District of New York

*

I. INTRODUCTORY STATEMENT
Appellants have misstated or distorted the proceedings

and facts in this case to such a degree that we are unable
to endorse any significant portions of it. Accordingly, we
are obliged to present an accurate statement of the case and
facts. Moreover, in view of the many charges appellants
make in connection with their claimed entitlement to unlimited
intervention it will be necessary to discuss the close rela-

1/tionship between the intervenors- and the unions and the 
role of the unions in this case.

* See note on form of citation, p. V

1/ In this brief plaintiffs have adopted the appellants 
designations of the two groups of appellants-intervenors as



II. STATEMENT OF THE CASE
Edward Kirkland and other black corrections officers

2/commenced this class action on January 15, 1981.— They 
alleged that their employer, the New York State Department 
of Correctional Services (hereafter "DOCS"), the New York 
State Civil Service Commission (hereafter "CSC") and high 
officials of both agencies were engaged in a pattern and 
practice of unlawful racial discrimination in employment in 
violation of Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. §2000e, et. seq., the Fourteenth Amend­
ment of the United States Constitution and 42 U.S.C. §§1981 
and 1983. Specifically they alleged that defendants engaged 
in unlawful racial discrimination in the development 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, in many cases, who was eligible

1/ Continued
the "Althiser intervenors" and the "McClay intervenors".
Prior to September 29, 1982 Robert McClay and several of the 
other "McClay intervenors" were members of the "Althiser 
intervenors" group. (A. 506,237).
2/ Initially plaintiffs sought to represent a class consisting 
of "all black employees of the New York State Department of 
Correctional Services who sat for Examination No. 36-808."
(A. 37). The parties agreed untimately that the class should 
be defined as "all minority persons who took and passed 
Examination No. 36-808 and have not been appointed prior to 
January 30, 1982 (A. 174).

2



to sit for Examination No. 37-526, for the position of 
Correction Captain, the Captain's examination was of neces­
sity tainted by unlawful racial discrimination. (A. 38-9).
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. (A. 42-3).

Along with the complaint, plaintiffs filed motions for 
a temporary restraining order and for a preliminary injunc­
tion. They sought to prevent the removal of minority officers 
from the provisional appointments they held as corrections 
lieutenants and their replacement by white officers who were 
about to be awarded permanent appointments on the basis of
their positions on the newly promulgated eligible list for

3/corrections lieutenant. The matter was referred to Judge

3/ Counsel for the Althiser intervenors are counsel to the 
Security and Law Enforcement Employees Council 82 which, 
along with its constituient local unions, is the collective 
bargaining representatives of uniform employees of DOCS (A. 
437, 505). These lawyers have closely monitored this case 
from virtually the moment it was filed. In fact, within a 
day of the filing of plaintiffs' motions, Brian O'Donnell, a 
member of the firm, was in contact with counsel for defendants 
to inquire into the status of the action and to offer advice 
as to a defensive strategy. (A. 512). It appears that Mr. 
O'Donnell was calling in his capacity as counsel for a group 
of corrections officers who were plaintiffs in a state court 
proceeding captioned Edgerton v. N.Y.S. Civil Service

3



Griesa but he refused to consider plaintiffs' motions.
Rather than press for a decision on plaintiffs motion, 
plaintiffs agreed to adjournment of the motion sine die 
since it appeared that there might be a basis for settle­
ment, provided that an agreement could be reached before too

4/many appointments were made. However the earliest phase 
of the settlement talks progressed more slowly than plaintiffs 
expected. (A. 578).

On February 15, 1982 counsel for plaintiffs learned 
that DOCS intended to demote all provisional lieutenants, 
effective February 17, 1982. Approximately 37 of them are 
minority. (PSA. 587-606) The demoted officers were to be 
replaced by white officers who ranked at the top of the new 
eligible list. Id. Plaintiffs then filed another motion 
for a temporary restraining order and for a preliminary 
injunction. (PSA. 569). The district court refused to 
consider this application as well.

Pretrial discovery and settlement proceeded in March, 
April and May. Several depositions were scheduled to commence 
on May 27, 1982 in Albany (PSA. ). Those depositions

3/ Continued
Commission (A. 83). The Edgerton plaintiffs are before this 
Court as members of either the Althiser or McClay intervenors. 
It should be noted that Council 82 is providing the essential 
financial support to the Althiser intervenors, as it provided 
the financial backing in the Edgerton litigation. The district 
court found, properly, that "the intervenors have known 
about this action since its inception". (A. 563).
£/ In fact, the first outlines of what developed into the 
substantive provisions of the settlement were committed to 
writing and exchanged less than ten (10) days after the 
complaint was filed.

4



were not taken. Instead the parties devoted that day to 
settlement negotiations. By the end of that day, the 
parties had reached agreement on all of the substantive 
elements of a consent decree which would be submitted for 
court approval.

As lawyers for the parties were engaged in drafting a 
consent decree, DOCS commenced consultations with representa­
tives of Council 82. By mid-June, DOCS, responding to threats 
of job actions by Council 82, withdrew from the agreement. 
Simultaneously the lawyers for Council 82 began asserting 
interest in intervening corrections officers in this case in 
order to assert the interests of the union's white male 
members. (A. 362). As in the past, Council 82 did not 
itself appear, opting instead to proceed in the name of 
certain of its members. (A. 505).

Counsel for plaintiffs protested DOCS' sudden reversal
of position (PSA. ) and appealed to the court for an
early trial date (PSA. ). Plaintiffs then re-noticed
depositions. Counsel for defendants resisted certain elements
of the notice and a conference was scheduled with the court
for July 14, 1982 (PSA. ). The court also invited the

5/principals, as well as the lawyers for Council 82, to 
attend. (A. 436). The conference was not recorded. However 
the bulk of that meeting was devoted to the matter of possible

5/ At the conference Mr. Rowley indicated that he was there 
on behalf of several white corrections officers who were 
seeking to intervene as defendants. (A. 438).

5



settlement. It appeared that DOCS now wished to proceed 
with the settlement but, as a concession to Council 82, 
wanted to extend the life of the eligible list until all 
officers on it had been offered an opportunity for 
appointment. Counsel for the proposed intervenors agreed
generally with the terms of the settlement but expressed

6/concern as to the size of the score zones proposed.- (A. 
442-6). He wanted to see the basis for the size of the 
zones being proposed and that justification was provided to 
him. (PSA. ).

The parties presented the proposed settlement to the 
district court on August 20, 1982. Pursuant to an order of 
the court notice of the settlement was mailed to members of 
the plaintiff class, announced at roll call and posted at 
all facilities.

The court held hearings addressed to the issue of
whether or not the settlement should be approved on September
29, October 4 and 14, 1982. It also considered the requests
of both groups of appellants for leave to intervene at the

7/September 29, 1982 hearing. The parties and intervenors

6/ Thus, at that time, Mr. Rowley was more than merely 
"agreeable to the idea of settlement of the litigation."
See Althiser Br., p. 19.
2/ The district court viewed intervenors as participating 
in the litigation since at least July 14, 1982. (509).
Nevertheless the Althiser intervenors claim that their 
efforts (since June 1982) to intervene "promptly" were 
"thwarted" by the "procedural machinations of this particular 
District Judge." See Althiser intervenors Br. p. 18.

6



were invited to submit briefs and all submitted substantial 
briefs. The briefing process was completed on October 22, 
1982.

On November 9, 1982, the district court entered a short 
order approving the settlement and indicated its intention 
to publish an opinion at a later date. (A. 1).

On November 10, 1982 the Althiser intervenors filed 
their notice of appeal and moved in this Court for an order 
staying implementation of the settlement. This court granted 
the stay subject to certain conditions that permitted the 
substantive provisions of the settlement to be implemented 
provisionally. (A. 560).

The McClay intervenors filed their notice of appeal on 
November 19, 1982.

On December 1, 1982 the district court published a 30- 
page opinion detailing its reasons for approving the settle­
ment agreement. (A. 3).

It was necessary for plaintiffs to return to the 
district court for an order including in the record of this 
case certain documents that were before the district court 
but which the Althiser intervenors insisted be excluded.
On December 14, 1982 the district court granted plaintiffs 
Rule 11, F.R. APP. P. motion. (A. 612).

7



III. STATEMENT OF FACTS
1. Introduction
This is the second lawsuit filed by Edward Kirkland and other

minority corrections officers seeking to reform the racially
discrimiatory use of promotional selection procedures employed

8/by DOCS. The first suit, Kirkland v. New York State Dept,
of Correctional Services, 374 F. Supp. 1361 (SDNY 1974), 
modified 520 F.2d 420 (2d Cir. 1975), cert, denied, 429 U.S.
823 (1976), on remand, 4822 F. Supp. 1179 (1980) aff'd. 628 
F .2d 796 (1980), cert, denied 450 U.S. 980 (1981) (hereafter 
"Kirkland sergeants), involved a challenge to the selection 
procedures used to select officers for appointment to the rank 
of corrections sergeant. As will be seen, the basic features 
of the selection system which plaintiffs challenged successfully 
in Kirkland sergeants, were built into the selection procedure 
that were challenged here.

2. Development of Examination No. 36-808
The Department of Civil Service (hereafter "CSD") gave a 

promotional written examination, titled Examination No. 36-808, 
for the rank of Corrections Lietenant on October 3, 1980. The 
examination consisted of 60 multiple choice items, but three 
items were discarded in the correction process. Doyle Depos., 
p. 53. (PSA. ). Each candidate who answers 39 questions

8/ The cast of characters are the same. Plaintiffs are 
represented by lawyers employed by the NAACP Legal Defense and 
Educational Fund. The Althiser intervenors are a union 
financed and directed group of white officers who are 
representing the interest of non-minority corrections officers. 
They are represented by counsel for the union.

8



correctly was given a passing score of 70% and was deemed
9/eligible for placement on the promotion list. See Doyle

Depos. pp. 54-58. (PSA. ). This examination was taken
10/by 570 white and 169 minority officers. (A. 171). Of

this number, 527 white and 148 minority officers passed.
(A. 171). A comparison of the success rates of white and
minority candidates who took this examination reveals that
minority candidates failed to test at a rate which is
statistically significantly greater than that of white 

11/candidates. (A. 417).

9/ One's adjusted score on the written examination is 
determined by adding 31 points to the number of items 
answered correctly. See Doyle Depos., p. 54. (PSA. ).
10/ The racial statistics used throughout this brief are 
those prepared by the CSD pursuant to their statutory 
obligation to collect such data and to make reports based 
thereon. See 29 CFR §1602.30. The parties have stipulated 
to certain facts regarding the numbers of minorities and 
non-minorities who took Examination 36-808, the relative 
numbers who passed and their placement at each scoring 
level. See (A. 171-2). Moreover, racial statistics were 
generated for use in connection with defendants validation 
efforts. (See PSA. ). Federal law requires employers
to prepare and maintain such data. See 29 CFR §1607.16.
The Althiser intervenors challenge the accuracy of the 
racial statistics stipulated to by the parties, see Althiser 
Br. pp. 50, 13, but they do not claim any irregularity in 
the collection of the data. Moreover, they have not offered 
any statistics that they claim is more accurate than those 
to which the parties stipulated. Finally we note that the 
intervenors themselves rely on the racial statistics 
supplied by CSD. See e.g. Althiser Br., pp. 14, 32.
11/ Thus, while we agree with the Althiser intervenors that 
minority officers constitute 22.9% and 22.0% respectively of 
officers who took and passed the test, (See Althiser Br. pp. 
32, 5, 14) they are simply wrong in the assertion that 
"there is no difference in (the minority/non-minority) pass 
rate." Althiser Br., p. 32. The McClay intervenors have 
made a similar uninformed assertion. See McClay Br., p.9.

9



A candidate's final score is derived by adding
seniority and veterans credits to his/her adjusted test

12/score. Candidates were then ranked according to their
final scores and their names were placed on an eligible list

13/which was published on December 23, 1981.
Use of the results of the written test as the major

component of the final score which served as the basis for
rank ordering candidates resulted in an eligibile list on
which minority officers were concentrated toward the bottom.
As the following chart shows, rank ordering had the effect

14/of maximizing disparate racial impact.

Position Percent Number Number
Nos. Minority Minority Non-Minority

1-107 5.6 6 101
108-229 9.8 12 110
230-298 16.0 11 58
299-416 19.6 23 95
417-525 29.4 32 77
526-619 33.0 31 63
620-672 47.2 26 28

12/ Seniority credits are calculated on the basis of 1.0 
points for each five (5) years of service. Veterans are 
entitled to have 2.5 points (5.0 points, if a disabled 
veteran) added to their scores but this credit may be 
claimed only once in an officer's career. See Doyle Depos., 
p. 58. (PSA. ).
13/ This process is the same as that used to establish the 
eligible list for corrections sergeant in 1972-73. It is 
the process that precipitated Kirkland, sergeants. See 374 
F. Supp. at 1365.
14/ This phenomenon is not uncommon. See e.g., Baker v. 
City of Detroit, 483 F. Supp. 930, 968 (E.D. Mich. 1979).
It was also present in Kirkland, sergeants. See 374 F. 
Supp. at 1366.

10



(A. 10). This pattern holds if one looks at the raw test
 ̂ . . . 15/scores of minority and non-minority candidates.

Raw Score No. of Percent No. No.Ranges Candidates Minority Minority Non-Min.
50-54 89 7.9% 7 82
48-49 117 10.3 12 10546-47 129 17.8 23 10644-45 133 24.8 33 10042-43 99 26.3 26 7339-41 103 38.8 40 63

On the first round of promotions, DOCS made 171 appoint
ments; only 17 (10.0%) of these appointees are minorities.
(A. 417 ) . By July 28, 1982, DOCS had made 222 appoint-
ments. Only 20 (9.0%) are minority. (A. 10, 172). In both
cases, a comparison of the minority candidates appointed 
with the proportion of non-minority candidates appointed 
reveal statistically significant disparaties against minority 
officers. (A. 417, 10).

Wh)]e the parties did not litigate questions concerning
16/the job relatedness of the test, there are substantial

15/ Derived from exhibit 1 to Farley deposition (PSA. ). 
Thus the repeated, though bald, assertion of the Althiser 
intervenors that seniority and veterans credits account for 
the adverse impact of the overall selection process, see 
Althiser Br. pp. 12-13, 38, 35, 51, is simply false.
16/ The Althiser intervenors contend that the parties agree 
that the test is job related. See Althiser Br. pp. 14, 36.
In support of this assertion they quote out of context, a 
portion of the settlment agreement that contains the words 
"a valid, job-related examination." See Althiser Br., p.
14. A review of the cited portion of the settlement agreement 
reveals that it merely recites what the district court refers 
to as the "obvious fact that slight differences in the scores

11



indications that the use of the test could not be shown to
be job related. Plaintiffs expert, Dr. James Outtz, was
prepared to testify that Examination No. 36-808 could not be
shown to be job related to the following grounds at 

17/least:
a. Examination 36-808 was not based upon a thorough 

job analysis as required by §15(c)(2) of the 
Uniform Guidelines on Employee Selection Proce­
dures. That is, the knowledges measured by the 
examination were not properly identified as those 
required for successful performance of important 
or critical job tasks.

b. Even if the job analysis conducted by the Department 
of Correctional Services had been conducted properly, 
the complex nature of a supervisory position such
as Correction Lieutenant would require the use of 
other selection devices (e.g., an assessment center 
or oral panel examination) in addition to a paper- 
and-pencil test to adequately measure the requisite 
knowledges, skills and abilities. A written test 
alone simply could not tap the skills and abilities 
that would have to be measured in order to rank 
order candidates in a valid manner, let alone rank 
order them on the basis of differences as small as 
one-half a point.

16/ Continued
achieved mean virtually nothing as far as the merits of the 
candidates respecting performance of duty" (A. 15) and the 
observation applies even if the test is valid. (A. 176). 
This observation is a far cry from any agreement that the 
test is valid. Plaintiffs have consistently maintained that 
the test is not job related and cannot be shown to be job 
related. See A. 39, 411, 418-9, 581.
17/ The Althiser intervenors have gone to extraordinary 
lengths to keep the contents of Dr. Outtz's affidavit out of 
the record. They charge that the affidavit is "undated, 
unsigned and unsworn" (See Althiser Br., p. 9) even though 
they are well aware of the fact that the signature page of 
this affidavit was dated, signed and notarized and filed 
with the court (See S.A. 611). Plaintiffs moved in the 
lower court, pursuant to Rule 10(e), F. App. P. for an order 
to make the record conform to the truth. The motion was 
granted over the opposition of these intervenors and the 
appendix now includes that signature page. (A. 611).

12



c. Twenty (20) of the 57 (35%) questions on the
examination were invalid in that they required 
abilities not required on the job.

(A. 419-29).
Among other things, defendants simply had no evidence 

that would tend to support use of the results of Examination 
36-808 to rank order candidates. See Doyle deposition, pp. 
42-3. (PSA. ). Moreover this test suffered from
precisely the same flaws that Judge Lasker found to be fatal 
in Kirkland, sergeants. 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 that attributes 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, understanding 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 recognizes 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 If 16 0 7.14C (1)

13



and Questions and Answers to Clarify and Provide Common 
Interpretation of the U.G.E.S.P., question number 78, 
reproduced at FEP 1(401:2324. The district court made 
essentially the same observation when it noted that "there 
is serious doubt about the entire concept of a written test 
as the criterion for the ranking of candidates such as the 
one in question." (A. 16.)

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, sergeants, 628 
F.2d 796. Council 82 vigorously opposed the use of that 
selection procedure but the procedure was sustained by Judge 
Lasker and this Court and the Supreme Court denied cert. See 
Kirkland, sergeants, 482 F. Supp. 1179 (S.D. N.Y. 1980) 
aff1d . 628 F.2d 796 (2d Cir. 1980), cert. denied 450 U.S. 
980) (1981).

Defendants might have developed and used a procedure 
for selection of Corrections Lieutenants that was similar to 
that developed and used under court supervision for 
selection of Corrections Sergeants. However by the time the 
CSD began the process of developing a new selection 
procedure for lieutenant, Coucil 82 had won for its white

14



members an agreement that performance evaluations such as
those used in 1980 at the rank of corrections sergeant would
be used. See Doyle deposition, p. 32. (PSA. ). CSD
did consider adminstering an oral test but discarded this
option because of the limited time available for developing
and adminstering selection procedure for the rank of 

18/lieutenant. See Doyle deposition, p. 32. (PSA. ).
As a result the CSD reverted to the use of the very 
selection procedure which was found unlawful in 1974. See 
Kirkland, Sergeants.

3. The Settlement Agreement
The settlement agreement provides a mechanism for 

reducing, in the future, the adverse racial impact of the 
lieutenant selection system, avoiding the disruptive effects 
of removing white officers who were appointed pursuant to an 
unlawful selection procedures and establishig guidelines for 
development of new selection procedures for the ranks of 
lieutenant and captain. The settlement did not fully 
compensate minority officers who were adversely affected by 
the challenged selection system. These minority officers 
were not awarded rightful place seniority; they were not

18/ This time constraint was a result of another piece of 
Council 82 sponsored litigation, Edgerton v. NYS Civil 
Service Comm. See Doyle deposition, p. 38. (PSA. ).

15



awarded backpay and they were not permitted to compete for 
promotion to the rank of Corrections Captain with white 
officers who received early appointments to the rank of 
Lieutenant on the basis of Examination No. 36-808. The 
settlement agreement also permits DOCS to satisfy its 
immediate need for lieutenants while giving CSD sufficient 
time to develop new job related and non-discriminatory 
procedures.

The settlement sets forth the manner in which future 
promotions are to be made off the eligible list that is 
based on Examination 36-808. (A. 176). The procedure
adopted contemplates partial elimination of the adverse 
impact created by the rank order system now in use, while 
generally preserving the itegrity 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 appli­
cable score ranges and current eligibility list 
positions associated with them are:

Score-^ Rank No. in
one Range Range Zones
1 82.5+ 1-247 233
2 78.0-82.0 248-525 286
3 73.0-77.5 526-672 153

_/ Intervenors criticized the district court for failing to 
"set forth any justification for the establishment of four- 
point zones." See Althiser Br., p. 49. They suggest that 
the district court approved the zones without reference to 
any factual basis. These intervenors know better. See 
(PSA. ). They know too that the district court was
apprised of the justification for the zones. See (PSA.
). Finally the settlement agreement itself contains a 
reference to the basis for these zones. See (A. 176).

16



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 l-to-4 ratio;

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

The settlement also requires the parties to cooperate 
to develop new selection procedures that have an adverse 
racial impact and are job related. (A. 182). It recognizes 
that selection devices other than written tests are 
important components of any selection procedure for action 
jobs such as Corrections Lieutenant and Captain. See p. 13, 
supra. The settlement lists specific approaches that have 
been used successfully in other situations, to help achieve 
the dual goal of avoiding adverse impact and developing job 
related selection procedures, but it doe not mandate 
adoption of any of them. (A. 182-3). These provisions are 
intended to prevent reoccurrence of the same events that 
precipitated the Kirkland, sergeants and this litigation.

Finally, the settlement requires administration of a 
new Correction Captain's examination within 12-15 months and 
publication of an eligible list that is based on that 
examination within six months of administration of the

17



examination. (A. 181). 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. See p. 11, supra.

The district court found that the settlement presented
by the parties for approval was a logical outcome of the
Kirkland, sergeants litigation. (A. 12). Like Kirkland,
sergeants, the settlement recognizes the need to implement
an interim procedure that will remedy the discriminatory

19/consequences of the existing selection procedure. That
remedy involves departures from strict rank order

19/ The Althiser intervenors complain that the settlement 
will affect supervisory appointments within DOCS for up to 
16.3 years. See Althiser Br., p. 42-3. However the record 
shows that for several specific reasons DOCS is simply 
unable to accurately estimate the likely duration of the 
life of the current eligible list. See. (A. 390-1). 
Moreover the provision which calls for exhauting the list 
was incorporated at the behest of Council 82.

18



appointments and the use of promotional ratios that reflect 
generally the interest of the plaintiff class and those of 
non-minority officers. It also recognizes the need to 
develope new selection procedures that do not place sole 
reliance on a written examination. (A. 14).

Summarizing its findings as to the appropriateness of 
the settlement, the district court found:

The present settlement agreement is not only 
justified by legal precedent, but is inherently 
reasonable and sound as a matter of policy. The 
benefits to plaintiff class of minority applicants 
inevitably result in some detriment to non­
minority correctional officers competing for 
promotion to the rank of Lieutenant. 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 
settlement.

(A. 15). The district court went on to address in detail
the prinicipal objections of the intervenors and rejected
them. The court concluded:

All of the points made by the objectors have been 
carefully considered. None of them has merit.

(A. 31).

19



IV. SUMMARY OF ARGUMENT
There is a strong policy in favor of settlement of Title VII 

cases and district courts should approve such agreements where 
they are fair, adequate and reasonable under all of the cir­
cumstances. While affected third parties are entitled to object 
to the settlement and to prove that the settlement is unlawful 
or unreasonable with respect to their interests they are not 
entitled to require the parties to litigate the merits of the 
case. They may seek to show that the remedy unnecessarily tram­
mels their interests. The district court properly applied the 
standards governing settlements. It considered the interests 
of the intervenors but properly declined to permit them to turn 
settlement proceedings into a trial on the merits. The race-con­
scious affirmative remedies incorporated in the settlement are 
lawful and appropriate under the facts of this case. The settle­
ment does not unnecessarily trammel the interests of the intervenors.

The intervenors were not entitled to intervene as of right.
While the district court could properly deny their applications 
for intervention as untimely, it permitted them to participate 
fully in the settlement proceedings. The lower court properly 
imposed restrictions on their intervention. They received as 
much due process as indicated by their interest in this case.

V. ARGUMENT 
1. Introduction

Although each of the intervenors have listed six points in 
their briefs to this Court, the case involves only two questions: 
Whether the district court abused its discretion when it approved 
the settlement; and whether the district court abused its dis­
cretion when it granted only conditional intervention. In the

20



pages that follow plaintiffs will discuss the proper legal standard 
that apply in these cases, will demonstrate that the district court 
properly applied these standards in this case and will address 
the principal arguments advanced by intervenors.

2. The District Court Properly Exercised 
Its Discretion And Approved The 
Settlement Agreement.
a . A Settlement Should Be Approved

If It Is Fair, Reasonable and
Adequate Under All Of The Cir-
cumstances

The district court was asked to approve the settlement of a 
class action pursuant to Rule 23(e), F.R. Civ. P. In this pos­
ture the following principles apply.

(1) Title VII consent decrees should be viewed in light 
of Congress' determination that voluntary compliance is a pre­
ferred means of enforcing nondiscriminatory employment policies 
and practices. See Alexander v. Gardner-Denver Co., 415 U.S.
36, 44 (1974); Patterson v. Newspaper & Mail Deliverers Union 
of N. Y. & Vicinity, 514 F.2d 767, 771 (2d Cir. 1975); United
States v. City of Miami, 614 F.2d 1322, 1331 (5th Cir. 1980),

_ l
vacated on other grounds, 664 F.2d 435 (1981) (en banc); Wi11 jams 
v. City of New Orleans, No. 82-3435, Slip op. at p. 6 (5th Cir. 
Dec. 16, 1982).

_/ The en banc court vacated the panel decision in part 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. 198-1) .

21



In class actions such as the instant case, "there is an over­
riding public interest in favor of settlement." Cotton v. Hinton,
559 F.2d 1326, 1331 (5th Cir. 1977). Accord, City of Miami, 664 
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 Milwau­
kee, 616 F.2d 305, 313 (7th Cir. 1980).

(2) A proposed settlement of a Title VII class action is 
entitled to a strong presumption of validity. See Guardians 
Assn, of N.Y.C. v. Civil Service Commission, 527 F. Supp. 751, 757 
(S.D.N.Y. 1981); United States v. City of Alexandria, 614 F.2d 
1359 , 1362 (5th Cir. 1980) .

(3) Furthermore, courts have recognized that a consent 
judgment is essentially a contract between the parties, u.S. v. City 
of Jackson, 519 F.2d 1147, 1151 (5th Cir. 1975); 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 determina­
tion of the merits of the action. See Patterson v. NMDU, 514 
F.2d at 769. Therefore the issues raised by objectors or inter- 
venors 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 agreements." Airline Stewards, 573 F.2d 
at 963. Accord, State of West Virginia 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.

22



City of Jackson, 519 F.2d at 1152. Moreover,"the district court's
1/

function is not to tailor the relief to what it considers 
necessary, as it might when fashioning relief itself after 
trial on the merits." Wi 11 jams, slip. op. at p. 12.

(4) The issue at the hearing is whether the proposed settle­
ment 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 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

_1 / 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 lO 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 
explore the likelihood of settlement apprehensive as 
they woudl be that the application for approval would 
necessarily result in a judicial determination that 
there was no escape from liability or no hope of re­
covery and hence no basis for a compromise.

23



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 probabilities 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, un­
reasonable or ineguitable." City of Alexandria, 614 F.2d at 1361.

(5) In deciding whether the proposed settlement is fair,
adequate, and reasonable, the Court should consider several fac­
tors: 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).

(6) 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

2 4



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 452. Airline Stewards, 573 F.2d at 963-64; Kuck v. 
Berkey Photo, Inc., 87 FRD at 80.

(7) In determining the fairness, adequacy, and reasonable­
ness 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, incum­
bent non-minority corrections officers whose interests are 
represented in this lawsuit by the Althiser and McClay groups of 
iontervenors. Armstrong, 616 F.2d at 313; City of Miami, 614 F.2d 
at 1332; Vulcan Soc. of Westchester Co. v. Fire Dept., City of 
White Plains, 505 F. Supp. 955, 962 (S.D.N.Y. 1981).

(8) 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 substantially 
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

25



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.
(9) Where "it has been established that a selection pro­

cedure 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. Moreover, "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).

(10) Where the plaintiffs and the defendant-employer have

26



agreed to a stipulation settling their Title VII case, inter­
vening 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 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 discrimina­
tion 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

27



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).

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 422 (Rubin) and 461 (Johnson); 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 
discriminatory 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.

28



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

_/
Service Commission rules, or state law, those rights 
are not absolute but must give way to reasonable affirma­
tive 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. See City of Miami, 664 F.2d at 446 (Rubin) 
and 451-52 (Gee); Sarabia v. Toledo Police Patrolman's 
Ass'n., 601 F .2d 914 (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).
(10) 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.2d at 442; Armstrong, 616 F.2d 
at 315; EEOC v. A T & T Co., 556 F.2d at 173-74.

/ In this case none of the limited intervenors have rights 
that could be characterized as "vested" under either CSC rules 
or New York law. Indeed intervenors do not claim to have such 
vested rights. See e.g., Althiser Br., p. 27.

29



b . The District Court Properly- 
Applied The Law In This Case

As indicated above the determination of the district court 
approving the settlement should not be disturbed unless inter- 
venors can carry the heavy burden of demonstrating that the 
lower court abused its discretion. Intervenors recognize that 
they must meet this burden, see e.g., Althiser Br., 
p. 23, but they have not made the required showing. A review of 
the opinion rendered by the district court shows that it paid 
close attention to the established legal principles, applied 
those principles properly and addressed at length intervenors 
principal objections. (A. 5-32).

The district court recognized the strong presumption in 
favor of settlement of Title VII cases. (A. 20). It recog­
nized that plaintiffs were prepared to present a substantial 
case (A. 10, 15) but properly refrained from attempting to 
precisely delineate the party's legal rights (A. 15, 24). The 
district court recognized that defendants were under no obliga­
tion to rebut plaintiffs prima facie case. (A. 25). It cor­
rectly refused to permit intervenors to force the parties to 
litigate the merits of the case and properly declined to permit 
them to take up the defendants defenses. (A. 26).

The district court was also sensitive to the legitimate 
interests of the intervenors (A. 22-3) but recognized that the 
affirmative relief provisions of this settlement has all of 
the characteristics of lawful remedial measures that have 
been approved by this Court and the Supreme Court. (A. 30-1).

30



The district court found that "the benefits to plaintiff class 
are modest and are carefully tailored to the precise problem 
raised by them in this litigation" (A. 15). It also recognized 
that the positions intervenors held on the original eligibility 
list were not vested property rights and found that the ratios 
provided for in the settlement are valid under federal law (A. 28). 
Given these circumstances, approval of the settlement was appro­
priate and required. See Williams.

c . Intervenors1 Claims Of Error 
Are Meritless

Plaintiffs now turn to the specific criticisms intervenors
have raised. Many have already been disposed of by the district
court. We note too that some of the claims are made for the

_/
first time in this Court and others go well beyond the scope of

_ /
the conditional grant of intervention permitted. We suggest 
that those claims that fall into the latter category be ignored.

_/ For example the Althiser intervenors assert without proof 
that evidence of adverse impact in the written test is lacking 
(see Althiser Br., pp. 11-13) and more generally that evidence 
of adverse impact is "inconclusive." (See Althiser Br. p. 35). 
Both of these assertions are without merit. See pp.10-11, supra.
_/ The district court granted permissive intervention (A. 563) 
"for the sole purpose of objecting to the settlement and all 
proceedings . . . will be directed solely to the question of 
the appropriateness of that settlement and the question of whether 
the Court should or should not approve it." (A. 566). This 
limitation was important because the mere fact of further delays 
would have resulted in the making of additional appointments on 
the basis which precipitated the litigation. Thus intervenors 
had a real incentive for prolonging the proceedings. (A. 566).

31



We address intervenors' arguments seriatim.
1. The Althiser intervenors assert for the first time

that plaintiffs have failed to make a sufficient showing upon
which to base the settlement approval. See Althiser Br., pp.
32-35. They claim that there is no adverse impact at the pass/
fail point (Althiser Br., p. 32), that the concentration of
minority candidates at the bottom of the eligible list "may
well be" caused.by factors other than the written test itself
(Althiser Br., p. 34) and that in any event plaintiffs should
be held to a higher standard of proof where the showing of

_ /
advers impact is the result of rank ordering. (See Althiser Br., 
p. 34). They offer no facts or law to support these contentions. 
The record of this case directly contradict the first two 
claims. See pp.10-11, supra. The third claim amounts to an 
argument that while refusal to permit blacks to ride the bus might 
amount to a violation of law, a requirement that they occupy 
the back of the bus is not as onerous and should not be regarded 
as unlawful. Of course the standard of proof reguired to 
satisfy plaintiffs' burden of establishing a prima facie case 
of a violation of Title VII is the same whether the adverse 
impact results from an inappropriately fixed cut-off score or

_/ Plaintiffs have never argued or even suggested that they 
"have a right to a certain percentage of representative test 
takers score at each grading level of the examination, regard­
less of the validity of the exam." See Althiser Br., p. 33.
We do contend that where the record shows minorities concentrated 
at the bottom of a rank-ordered eligible list, the use of test 
scores to produce that list must be changed or justified. See 
Guardians, 630 F.2d at 102-4.

32



inappropriate use of rank ordering. See Guardians, 630 F.2d
at 104. This contention is utterly meritless.

2. Commencing with the assumption that Examination No. 
36-808 is job related, the intervenors argue that it was an 
abuse of discretion for the district court to "disregard" its 
results. See Althiser Br., pp. 35-8. The Althiser intervenors 
recognize that an employer may rebut a plaintiffs' prima facie 
case of unlawful discrimination under Title VII by showing, as 
an affirmative defense, that the selection procedure in question 
is job related. See Althiser Br., p. 35. Nevertheless they 
reverse the method of analysis and presume job relatedness of 
the test.

As the district court notes, an employer is under no obliga 
tion to mount such a defense. (A. 24-5). As in this case, it 
may elect to settle and third parties cannot force it to defend 
instead of settle. (A. 26). Although the althiser intervenors 
argue otherwise, see Althiser Br., p. 37, the rule is not 
different when the employer is a governmental unit. See DPOA, 
608 F.2d at 689. Public employers routinely enter into settle­
ment agreements and adopt voluntary affirmative action plans 
that result in alteration of the use of previously established 
selection procedures. See e.g., DPOA, 608 F.2d at 689; Williams

_/ Employers normally perform "validation studies" in order to 
determine if the test bears a "manifest relationship to the 
job in question." See Griggs v. Duke Power Co., 401 U.S. 424, 
431 (1971); Albermarle Paper Co v. Moody, 422 U.S. 405 (1975).

33



supra and cases cited by district court at A. 25-6.
3. The McClay intervenors assert that, absent a showing

of discriminatory purpose, §703(h) of Title VII, 42 U.S.C. 
§2000e-2(b), exempts the use of the Lieutenants eligible list 
from challenge since it was promulgated pursuant to "a bona fide 
merit system." See McClay Br., pp. 19-23. They cite a series 
of cases that involve challenges to seniority systems. Those 
cases are inapposite. There is no requirement that a non-job- 
related test that has a disparate racial impact be shown to have been 
designed or intended to have adverse racial effects. See 
Connecticut v. Teal, ___ U.S. ___, 73 L.Ed. 2d 130, 140 (1982).

4. The intervenors contend that absent an overriding 
federal or constitutional or statutory basis, their state law 
expectations may not be disturbed. See Althiser Br. , pp. 24-32. 
They "recognize that the law in the Second Circuit is such that 
rank ordering pursuant to the requirements of New York State law 
cannot be relied upon to justify any discriminatory employment 
practice. See e.g., Guardians Association v. Civil Service,
630 F.2d 79, 104-05." Althiser Br., pp. 23-4. Ignoring the 
effect of plaintiffs' statistical prima facie case and the 
defendants willingness to settle rather than defend this lawsuit, 
the Althiser intervenors assert that "the stipulation points to 
no overriding federal constitutional or statutory basis to 
support departure from" making appointments in strict rank order 
off the existing eligible lists. Consequently, they conclude, 
the "state defendants are powerless" to enter into the

34



settlement. See Althiser Br., p. 26. This extraordinary 
position - that a state employer may never settle a federal 
discrimination action - is premised on the belief that the test 
is job related and that plaintiffs' prima facie case should have 
no effect. The district court addressed this point. It found 
that "the reorganization of the rank order eligible list into 
zones is a reasonable step on the part of the Civil Service 
Commission to make the list accord with merit and to have 
arbitrary and unfair rankings eliminated" (A. 27). The court 
continued that "insofar as the 21% and one-to-four ratios are 
concerned, it is unnecessary to determine whether they would be 
in accordance with state law. It is clear that state law must 
yield to federal law in a Title VII case." (A. 27). These 
determinations are correct.

5. The Althiser intervenors argue here, as they have in the 
lower court, that they are entitled to require the parties to 
fully litigate the merits. They have summarized their position 
as follows:

The intervenors are entitled to specific 
findings of fact and conclusions of law which 
justifies any loss of their rights and must 
be given an opportunity to present their case 
to this Court. If the intervenors are without 
power to force the principal parties to liti­
gate the merits of the case in the face of the 
Attorney General's concepts of social justice, 
this is no bar to permitting the intervenors 
to have their day in court before their property 
rights are taken away by the collusive action 
of the plaintiffs and defendants.

Althiser Br., p. 43. We do not read this statement to be a charge 
of collusion between plaintiffs and the Attorney General of the 
State of New York. There has been no collusion between plaintiffs

35



and the Attorney General or anyone associated with defendants. 
These intervenors have cited no cases in support of the proposi­
tion quoted above, save United States v. City of Miami, a case—j

which the district court found inapposite. (A. 21-2). The law 
is clear that others who are necessarily affected by the affirma­
tive remedial aspects of the settlement are entitled to appear 
and show that the settlement is unreasonable or unlawful. See 
pp. 26-1> supra. The intervenors have been afforded that oppor­
tunity. Their real complaint is that they have not been 
permitted to require the parties to litigate to judgment, but 
they have no entitlement to it. See p. 27, supra.

The Althiser intervenors have criticized plaintiffs submis­
sion of the affidavit of Dr. James Outtz and complain that the 
lower court deprived them of an opportunity to challenge its 
contents. Althiser Br., pp. 9-10. This criticism is part and 
parcel of their assertion that they are entitled to litigate the 
merits of the case. See Althiser Br., p. 43.

Dr. Outtz's affidavit was submitted to provide the court 
with respect to whether or not the apparent adverse impact of 
Examination 36-808 and the eligible list that was later

_/ These intervenors argue that the fact that they are not named 
defendants made a difference as to the applicability of City of 
Miami to this case. The Fifth Circuit reversed a lower court 
order approving that settlement because the consent decree pur­
ported to bind a party who had not consented. Here no one has 
sought to bind any of the intervenors. Clearly the settlement 
does not upset any contractual rights Council 82 might have as is 
evidenced by its unwillingness to appear in its own name.

The Althiser intervenors also cite City of Miami for the 
proposition that the ordinary rule of law that consent decrees 
carry with them a presumption of validity somehow dissipates as 
the impact of the decree increases to burden third parties and 
to have continuing effect into the future. See Althiser Br.,

36



promulgated on the basis of the results of that test was statistic­
ally significant. The affidavit also summarized his views as to 
the job relatedness of the test.

The latter portion of the affidavit was offered to demon­
strate that plaintiffs have a substantial case and were likely 
to withstand defendants' efforts to carry their affirmative 
defense. The district court properly refused to permit the inter- 
venors to contest the issue of job relatedness. Accordingly thet 
lacked standing to challenge Dr. Outtz's views on the issue of 
job relatedness.

Contrary to intervenors claims, see Althiser Br., p. 10, the 
district court did not rely on Dr. Outtz1s affidavit to make 
findings as to the reliability of the examination. In fact, the 
district court refrained from deciding whether or not the exami­
nation is reliable. Instead the court properly restricted its 
comments to the observation that "there is serious doubt about 
the entire concept of a written test as the criterion for the 
ranking of candidates for positions such as the one in question." 
(A. 16). This notion is not unknown to the courts. See p. 13, 
supra.

These intervenors point to the "loss" of earnings they will 
suffer as a result of the settlement. See e.g., Althiser Br.,

_/ (Con't.) p. 42. A review of that case at the pages cited, 664 
F.2d at 440-41, simply does not support that claim. Moreover, as 
the district court found, the burdens imposed on white officers 
by this Stipulation is "modest and is in fact considerably less 
than what might have occurred if plaintiffs pressed their liti­
gation to the end" (A. 15). This is hardly the case for departure 
from the traditional rule according a presumption of validity to 
settlement agreements. Compare Williams, supra.

37



p. 40. However it should be recalled that this settlement 
merely accords plaintiffs near parity with their white peers, 
see pp. 15-16, supra. The intervenors are simply complaining 
that they are being returned to their rightful place and will no 
longer be able to reap the benefit of the unfair advantage they 
enjoyed prior to approval of the stipulation of settlement.

The Althiser intervenors also complain that many have had 
their "careers up in the air" for approximately ten years as a 
result of the Kirkland sergeants litigation. However, it should 
be remembered plaintiffs careers have also been "up in the air" 
and that plaintiffs have suffered for years as victims of unlaw­
ful racial discrimination. Moreover, a significant portion of 
the Kirkland sergeants litigation resulted from the intransigence 
of Council 82. It should also be recalled that Council 82 is 
at least partially responsible for barring application of the 
Kirkland sergeants remedy to the Lieutenants examination that 
is the subject of this litigation. Council 82 is also backing 
new litigation in the Northern District of New York that, if 
successful, will severely disadvantage its non-white members who 
are seeking promotions to the rank of Corrections Captain. See 
Bushey v. New York State Civil Service Commission, Civil Action 
No. 82 CV 1219 (N.D.N.Y.).

6. The Althiser intervenors assert that the district court 
may not give its approval of the settlement without a determina­
tion that the settlement was appropriate and necessary and is 
no more than Title VII allows or mandates. See Althiser Br., 
pp. 44-51. This argument is but a variation on the argument just

38



discussed. Intervenors would have the district court make 
detailed liability findings together with tightly drawn justi­
fications for each of the remedies contained in the settlement. 
The law simply does not require adherence to such a regimen 
especially where the issue to be determined is whether or not a 
consent decree which has been tendered by the parties is fair, 
reasonable and adequate. See pp. 25, 27-8, supra. In a recent 
decision the Fifth Circuit squarely rejected the position these 
intervenors espouse. That court held:

The plaintiffs are therefore correct that 
a settlement providing for race conscious 
relief, by way of an affirmative action quota 
may be approved where it is reasonably related 
to the legitimate state goal of achieving 
equal employment opportunities. City of Miami,
664 F.2d at 461; City of Alexandria, 614 F.2d 
at 1366. In determining whether to approve or 
reject a proposed decree, the district court's 
function is not to tailor the relief to what it 
considers "necessary," as it might when fashion­
ing relief itself after trial on the merits.
See City of Alexandria, 614 F.2d at 1362.
Quotas for black selection may be intrusive, 
but they are within the scope of a reasonable 
settlement so long as the interest of nonblacks 
"are not unnecessarily trammelled." Weber, 443 
U.S. at 208, 99 S.Ct. at 2730.

Williams, slip op., p. 12. Nevertheless, in this case the 
district court found that the settlement is "carefully tailored 
to the precise problem raised. . . in the litigation. (A. 15). 
The district court also addressed specifically the other con­
cerns these intervenors raised and properly rejected them.
(A. 27-31) .

39



3. The District Court's Decision To 
Grant Intervention Subject To Certain 
Conditions Constituted An Appropriate 
Exercise Of Discretion

The intervenors complain that the district court improperly 
restricted the scope of their participation in this case. 
Intervenor's agree, as they must, that this claim should be tested 
by the abuse of discretion standard of review. See Althiser 
Br., p. 23. Accordingly this Court should not review the dis­
trict court's exercise of its discretion unless the intervenors 
can show clear abuse. See Allen Calculators, Inc, v. National 
Cash Register Co., 322 U.S. 137, 142 (1944); United States Postal 
Service v. Brennan, 578 F.2d 188, 192 (2d Cir. 1978). We 
respectfully submit that the intervenors have not shown any 
abuse of discretion that would require reversal on this issue. 
Moreover the district court did permit the intervenors to partici­
pate in the settlement proceedings. It merely refused to permit 
them to turn those proceedings into a full blown trial on the 
merits. (A. 566).

The district court found that the intervenors were aware of 
this lawsuit from the time of its filing. (A. 563). Indeed 
counsel for the intervenors have been closely monitoring this 
case since the time it was filed. See fn. 3, supra. See also 
A. 506. However they made no effort to intervene until after 
the parties had reached agreement. At that point they commenced 
action in court and at the bargaining table to thwart reform of 
the eligible list.

The district court restricted the scope of intervention

40



not only because of the untimeliness of the formal application 
but also because there were indications that the intervenors 
would seek to drag out the settlement proceedings. (A. 566,
518, 513-14, 446-47). Everyone was well aware that every delay 
in these proceedings would result in the appointment of more 
white officers ahead of minority officers. (A. 566). The 
intervenors were demanding a full trial on the merits. (A. 447, 
513-14). Counsel for the Althiser intervenors had already 
prepared a form affidavit for the use of white corrections 
officers (A. 44)) and Council 82 had solicited over 200 of its 
members to sign and return them to the lawyers who prepared the 
form (PSA , A. 505). By the end of September these inter­
venors had inundated the court with paper. (A. 436-38). 
Accordingly the court opted to limit the scope of intervention, 
and seek clear definition of the issues that would have to be 
addressed in the context of settlement proceedings. (See Oct.
4, 1982 hearing, pp. 8, 15 and A. 552-53). It was therefore 
able to limit the proceedings to the issues that were important.

The district court determined that the intervenors were 
not entitled to litigate the issue of the validity of the test.
We submit that this result obtains regardless of whether or not 
the intervenors had appeared earlier and had been granted 
unlimited intervention. See p. 27 , supra.

VI. CONCLUSION
For the reasons set forth above the decision of the district 

court should be affirmed and the intervenors directed to pay

41



costs on this appeal.
Respectfully submitted,

PENDA D. HAIR 
Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019 
(212) 586-8397

Attorneys for Plaintiffs-Appellees

CERTIFICATE OF SERVICE
This is to certify that on the 4th day of January, 1983, 

copies of the foregoing Brief for Plaintiffs-Appellees Edward 
Kirkland, et al., were served on each of the counsel set forth 
below:

Barbara B. Butler, Esg.
New York State Department of Law 
2 World Trade Center 
New York, New York 10047
Herbert Halberg, Esq.
Beck Halberg & Williamson 
40 Exchange Place 
Suite 1918
New York, New York 10005
Richard Rowley, Esq.
Rowley, Forrest & O'Donnell, P.C. 
90 State Street 
Albany, New York 12207

42