Kirkland v. The New York State Department of Correctional Services Appellee's Petition for Rehearing and Suggestion for Rehearing En Banc

    UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

EDWARD L. KIRKLAND and NATHANIEL HAYES, each individ­
ually and on behalf of all others similarly situated,

Plaintiffs-Appellees,-against-
THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; 
RUSSELL OSWALD, individually and in his capacity as 
Commissioner of the New York State Department of 
Correctional Services; THE NEW YORK STATE CIVIL SERVICE 
COMMISSION; ERSA POSTON, individually and in her 
capacity as President of the New York State Civil 
Service Commission and Civil Service Commissioner; 
MICHAEL N. SCELSI and CHARLES F. STOCKMEISTER, each 
individually and in his capacity as Civil Service 
Commissioner,

Defendants-Appellants,
-and-

ALBERT M. RIBEIRO and HENRY L. COONS,
Intervenors-Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK
APPELLEE'S PETITION FOR REHEARING 

AND SUGGESTION FOR REHEARING EN BANC

JACK GREENBERG 
MORRIS J. BALLER 
DEBORAH M. GREENBERG 

10-Columbus Circle 
Suite 2030
New York, New York 10.019

Attorneys for Plaintiffs- 
Appellees .



UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT 

NO. 74-2116

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

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

Defendants-Appellants,
- and -

ALBERT M. RIBEIRO and HENRY L. COONS,
Intervenors-Defendant-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK

APPELLEES' PETITION FOR REHEARING 
AND SUGGESTION FOR REHEARING EN BANC

Plaintiffs-Appellees Edward L. Kirkland, et al. (herein­
after, plaintiffs"), hereby petition the Court for rehearing 
and reconsideration of one aspect of its decision entered 
August 6, 1975 which is of far-reaching significance: its 
reversal of that provision of the District Court's decree which 
ordered the appointment of Correction Sergeants in the ratio of 
one Black or Hispanic for each three whites until minority 
representation in that rank equals minority representation



in the underlying rank of Correction Officer. Plaintiffs request 
that, upon rehearing, the Court reverse its judgment as to this 
ruling. Plaintiffs further respectfully suggest that inasmuch 
as the panel's decision is in irreconcilable conflict with other 
decisions of this'Court and involves important questions of public 
policy and judicial administration, this issue be reheard en banc.

Statement of the Case
In the Correction Officer series of the New York State Department

of Correctional Services, the entry level position is Correction
Officer. Promotions are made to successive supervisory positions
of Sergeant, Lieutenant, Captain, Assistant Deputy Superintendent,
Deputy Superintendent and Superintendent on the basis of a series

1/of written examinations (A.1327-29). As of May 1, 1973, of 122 
permanent Correction Sergeants, not one was Black or Hispanic 
(A.1448). Since 1961, there have been only two Blacks and no 
Hispanics permanently appointed to the rank of Sergeant or above 
in the entire New York State prison system (A.286, 395, 473-74,
533, 1447). There is no evidence in the record that any minorities 
held supervisory positions prior to 1961.

The complaint in this action, filed April 10, 1973 challenged 
the legality, under 42 U.S.C. §§1981 and 1983, of Civil Service 
examination 34-944 for promotion to the position of Correction 
Sergeant (Male), administered October 14, 1972, on the ground that 
it a disproportionately adverse impact upon Black and Hispanic
candidates and could not be shown to be job-related (A.7-24).

1/ This form of citation is to pages of the Joint Appendix.

2



Plaintiffs filed an amended complaint June 22, 1973 alleging that 
Sergeant examinations administered prior to 1972 also had a dis­
criminatory impact on Blacks and Hispanics and could not be shown 
to be job-related (A.28-31).

Decision of District Court
The District Court found that examination 34-944 had a dis­

proportionate impact upon Blacks and Hispanics and that defendants 
had not met their burden of establishing its job-relatedness. As 
to past examinations, the District Court found that "while there is 
evidence in the record of the discriminatory impact of the earlier 
tests, there is no evidence as to their job-relatedness" (A.181).
It enjoined the use of eligibility lists promulgated on the basis 
of performance on examination 34-944 and ordered the preparation of 
a new selection procedure.

The District Court also ordered that any permanent appointments 
to the position of Correction Sergeant made either prior to the 
development of a new selection procedure or pursuant to the new 
selection procedure be in a ratio of one Black or Hispanic for 
each three whites "until the combined percentage of Black and 
Hispanic persons in the ranks of Correction Sergeants (Male) is 
equal to the combined percentage of Black and Hispanic persons in 
the ranks of Correction Officers (Male)" (A.244).

The Panel1s Opinion
The panel affirmed the District Court's findings that examina­

tion 34-944 had a discriminatory impact and was not job related and

3



upheld the provisions of the decree enjoining defendants from making 
appointments based upon the results of that examination and direct­
ing the development of a new selection procedure. The panel also 
affirmed that portion of the decree relating to appointments made 
during the interim period prior to the development of a new selection 
procedure. It reversed, however, the District Court's order with 
respect to appointments made after the development of a new selec­
tion procedure.

The panel's reversal is based upon the ground that appointments 
of persons to civil service jobs in a sequence other than their 
order on a civil service eligibility list because of their race is 
"Constitutionally forbidden reverse discrimination" (slip op. at 
5412). This holding interposes the New York State Civil Service 
Law as an insurmountable barrier between the victims of racial 
discrimination and the Court's duty to grant affirmative relief 
to eliminate, so far as possible, the effects of past discrimination, 
Louisiana v. United States, 380 U.S. 145, 154 (1965); cf. Albemarle 
Paper Co. v. Moody, 43 U.S.L.W. 4880, 4884 (1975). It is in 
irreconcilable conflict with the decisions of this Court in United 
States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 
cert, denied, 412 U.S. 939 (1973); Vulcan Society of the New York 
Fire Department, Inc., v. Civil Service Commission, 490 F.2d 387 
(1973); Bridgeport Guardians Inc, v. Bridgeport Civil Service 
Commission, 482 F.2d 1333 (1973); Rios v. Enterprise Association 
Steamfitters Local 638, 501 F.2d 622 (1974); and Patterson v. 
Newspaper and Mail Deliverers' Union, 514 F.2d 767 (1975).

4



State constitutional and statutory provisions regulating civil 
service appointment cannot limit the federal court's power and duty 
to render affirmative relief, in light of the Supremacy Clause of 
Article 6 of the United States Constitution. Carter v. Gallagher,
452 F .2d 315, 328 (8th Cir. 1971 and rehearing en banc,1972).

The panel supports its holding with assertions which reflect 
legal standards that uniformly have been rejected by this Court and 
others. Chief among these are 1) that plaintiffs did not prove 
that past examinations were discriminatory because they were unable 
to present complete statistical pass-fail data (slip op. at 5409-10) 
and because they did not prove that past examinations were not 
job-related (id. at 5410) and 2) that plaintiffs did not prove 
egregious, intentional racial discrimination (id.at 5409,5410).

Standards Applied by this Court in Approving Affirmative Relief
This Court has repeatedly affirmed relief similar to the 

promotional preferences mandated by the District Court. In the 
private employment context, it has held that "while quotas to attain 
racial balance are forbidden, quotas to correct past discrimination 
are not," Lathers, supra, 471 F.2d at 413 and that "[t]he effects 
of . . . past violation of the minority's rights cannot be eliminated 
merely by prohibiting future discrimination, since this would be 
illusory and inadequate as a remedy," Rios, supra, 501 F.2d at 631.
In the civil service context, it has also sanctioned "quotas aimed 
at curing past discrimination." Bridgeport, supra, 482 F.2d at 1340.

Quotas have been approved in the face of express findings that

5



the discrimination was not "egregious" or "intentional." See 
Vulcan, supra, 490 F.2d at 390; Bridgeport, supra, 482 F.2d at 
1336; Patterson v. N.M.D.U.,384 F.Supp. 585, 589 (S.D.N.Y.,1974), 
aff'd 514 F.2d 767, (1975). Compare with panel opinion at 5409.
The single element that makes the affirmative provisions both lawful 
and necessary is proof of prior discrimination and its continuing 
effects. Louisiana v. United States, supra.

Plaintiffs respectfully submit that application of the legal 
standards established by this Court to the facts of this case fully 
justifies the affirmative relief granted by Judge Lasker.

Past Discrimination
There is uncontroverted evidence that there have been only two 

Blacks and no Hispanics permanently appointed to the rank of Sergeant 
or above. There is substantial unrebutted evidence that this 
startling under-representation has been brought about by the screen­
ing out effect of the non—job—related civil service examinations.

Defendants,who were the only possible source of such information, 
were unable to provide complete racial/ethnic pass-fail data for 
Sergeant examinations conducted prior to 1972 (A.1303). However, 
they were able to provide information with respect to those persons 
who took the 1970 Sergeant examination and were still employed on 
January 1, 1973. Of the 997 whites who took the 1970 examination 
and were still employed on January 1,1973, at least 94 or 9.4% 
passed; of the 46 Blacks and Hispanics who took the examination 
and were still employed on January 1, 1973, none received a passing

%

6



score (A.1436-43). With respect to pre-1970 Sergeant examinations,
plaintiff Kirkland testified that at Ossining Correctional Facility-
alone 25 Blacks took the 1968 Sergeant exam and 10 to 15 Blacks took
the 1965 Sergeant exam. Named plaintiffs and five other Blacks
testified that they took the examination as many as four times and
never scored high enough to be appointed (A.282, 349-50, 388, 436-37,
467, 518, 543). This evidence, taken with undisputed testimony
that there were only two minority supervisors appointed since 1961,
and expert testimony that Blacks and Hispanics tend to achieve lower
scores than whites on the type of examinations in issue (A.1176-78,
1229) is sufficient to shift to defendants the burden of justifying
their use. As Judge Friendly observed in Vulcan, in holding that
Judge Weinfeld's finding of the racially disproportionate impact
of the fireman's examination was not clearly erroneous.

It may well be that the cited figures and other 
more peripheral data relied on by the district 
judge did not prove a racially disproportionate 
impact with complete mathematical certainty. But 
there is no requirement that they should ... We 
must not forget the limited office of the finding that Black and Hispanic candidates did significantly 
worse in the examination than others. That does 
not at all decide the case; it simply places on 
the defendants a burden of justification which they 
should not be unwilling to assume.

490 F.2d at 393. Accord: Boston Chapter, N.A.A.C.P., Inc, v.
Beecher, 504 F„2d 1017 (1st Cir. 1974).

When widespread minority underemployment is shown 
to exist in a given occupation, primary selection 
devices should not be immunized from study by placing

2/

2/ The passing score was 70% of 90 (the number of items on the 
exam) or 63.

7



an unrealistically high threshold burden upon 
those with least access to relevant data.

Id. at 1020-21. See also Rogers v. International Paper Co., 510
F2d 1340, 1349(8th Cir. 1975).

The record is silent as to the job-relatedness of the pre-1972 
exams except for substantial evidence that they were cut from the 
same cloth as examination 34-944. Sergeant examinations have for 
many years been prepared by the same process by which examination 
34-944 was developed (A.624), a process which the panel agreed did 
not meet legally required standards (slip op. at 5405).
The fact that a) the scope of every examination since 1964 was 
virtually identical (A. 1469), b) the class specifications for 
Correction Sergeant were unchanged since 1962 (A.1474-84), and 
c) prior examinations were consulted in preparing examination 
34-944 (A.889) led the trial court to conclude that pre-1972 
Sergeant examinations were similar to examination 34-944 (A.180-82). 
The panel's observation that since the duties of a Correction 
Sergeant have changed over the years "so that no retroactive 
inference concerning job-relatedness could be made as a result of 
examination 34-944 which was evaluated in relation to the job as 
it then existed" (slip op. at 5401) implies that the burden was 
on plaintiffs to establish that the earlier examinations were not 
job-related. This is contrary to the holdings of the Supreme 
Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971), this Court 
in Chance v. Board of Examiners, 458 F.2d 1167 (1972) and their 
progeny.

8



The panel did not rule that the findings by the District 
Court that past examinations were discriminatory and had not been 
shown to be job-related (A.181) were clearly erroneous, nor, on 
this record, could it have done so.

Appropriateness of the Relief Granted 
The Court has recognized as "the basic tenet" in passing 

upon relief granted by a trial Court in a case of this sort that 
"the district court, sitting as a court of equity, has wide power 
and discretion to fashion its decree not only to prohibit present 
discrimination but to eradicate the effects of past discriminatory 
practices," Bridgeport, supra, 482 F.2d at 1340, citing Louisiana 
v. United States, 380 U.S. 145, 154 (1965) and Lathers, supra, 471 
F.2d at 413. In Vulcan, this Court, quoting International Salt Co. 
v. United States, 332 U.S at 392, 400 (1947), stated, "The framing 
of decrees should take place in the District rather than in the 
Appellate Courts." 490 F.2d at 399. Most recently, in Rios 
v. Enterprise Association Steamfitters Local 638, 501 F.2d 622,631 
(1974) ("Rios"), this Court has reiterated its determination to
leave the nature and extent of relief from past discrimination to 
the sound discretion of the trial judge.

In Bridgeport, supra, this Court approved a hiring ratio, aimed 
at a goal of 15% Black and Puerto Rican representation, that required 
50% of the first ten vacancies,75% of the next twenty, and 50% of 
the next sixty to be awarded to minority group members. 354 F.Supp.

9



778, 798-99.
There is no indication in the opinions of either the District 

Court or this Court that such appointments were to be limited to the 
period during which a new selection procedure was being developed. 
The ratios were to be maintained until the goal was reached.

3/

In Bridgeport the Court specifically enumerated the 
factors that persuaded it to approve Judge Newman's hiring quota,

3/ These numbers represent a hiring quota. This Court reversed 
the district judge's quota on promotions. This reversal was not 
based on any doubt that such a remedy, where appropriately sup­ported, would be lawful and necessary. Rather, as this Court 
reaffirmed in Patterson, supra, 514 F.2d at 774, "The Bridgeport 
Guardians decision was based upon the failure to establish any 
discrimination within the promotional system, the proof being limited 
to discrimination at the point of entry into the police force, i.e., 
in qualifying for the rank of patrolman. See 482 F.2d at 1338-41." 
In Patterson, this Court approved, over the objections of a white 
incumbent, a settlement agreement which provided that minority 
persons not previously employed in the industry would achieve a 
higher priority status for daily hiring and promotion than whites 
who had worked under the collective gargaining agreement for years.

. . . To the extent that the settlement may 
cause a temporary decline in Group ill white 
workers' rate of promotion and daily work 
priority, it merely compensates for past dis­
crimination by allowing a reasonable number of minority persons to be promoted to the "right­
ful place" on the seniority ladder, which they 
would have occupied but for industry-wide racial discrimination.

514 F.2d at 775. Similarly, in Rios, supra, this Court affirmed, 
in relevant part, a decree providing for quota admissions to A 
Branch of the union, despite the fact that this would give "new" 
minorities a higher priority status than senior whites in B Branch who did A Branch work when there was a shortage of Group A 
Branch members, 360 F.Supp. 979,936 (S .D.N. Y.d.973) (Finding of Fact No.18).

10



factors equally applicable to the present record. First, the 
Court noted that

the defendants were employing an archaic 
test which was not validated and which . . .
was not job related. Attacks by Blacks 
and others upon examinations emphasizing 
verbal skills and not testing the professional 
skills of the vocation applied for, have been 
under increasing attack, and the failure here 
of the defendants to recognize the increasing 
evidence that tests of this type have an innate 
cultural bias, cannot be overlooked.

482 F.2d at 1340. Examination 34-944 and other recent Sergeant 
examinations were also "archaic." They differed scarcely at all 
from past examinations, in spite of sweeping recent changes in what 
is expected of Sergeants (A.769, 1460). Not only should these 
defendants have been aware that they were using a hopelessly out­
moded and discriminatory promotional procedure/ they actually were.

1/A.1458-60.
Second, the Bridgeport Court relied on the defendants' failure 

to undertake any affirmative steps to recruit minority personnel,
482 F.2d at 1340. Here, the record is barren of any affirmative 
efforts of any nature to overcome discrimination or the gross 
underrepresentation of minorities in the system.

Third, and more important, the Court noted that the District 
Court had provided that the quota would be filled by "qualified Blacks

4/ Cf. Attica, The Official Report of the New York State Special
Commission on Attica (1972), in a discussion of "the department 
as it exists, what the problems are," at p.26:

For promotion, evaluations of an officer's 
performance on the job and his ability to relate to inmates were not considered. Written 
examinations were the key, and after three years' 
service any Correction Officer could take an exam for Sergeant.

11



and Puerto Ricans and not merely token personnel selected because
of race and not qualification." 482 F.2d at 1341. As in Bridgeport,
the lower court here has assured that persons who ultimately benefit
from affirmative relief provisions are qualified by ordering the

5/development of validated selection procedures.
Finally, the Court in Bridgeport noted with emphasis that,

This is not a private employer and 
not simply an exercise in providing minorities 
with equal opportunity in employment. This 
is a police department and the visibility of 
the Black patrolman in the community is a 
decided advantage for all segments of the 
public at a time when racial divisiveness is plaguing law enforcement.

482 F.2d at 1341. The same comment is equally forceful in the 
correctional field, a crucial aspect of the law enforcement system.
The point is made more telling by the fact that in most of New York 
State's correctional facilities the inmate population ranges 
upward from 50% to over 80% Black and Hispanic (A.1279). Recent events 
have spotlighted the dangers of a largely minority-group, urban 
inmate population controlled by almost exclusively white, rural

5/ The panel opinion states that the District Court's order 
provides for appointment of minorities (after the development of a 
new selection procedure) "without regard to whether the benefitted 
Black or Hispanic received a passing grade" (slip op. at 5414). The 
decretal provision in question reads as follows:

"Upon completion of the development of the revised 
selection procedures and subject to the Court's 
approval thereof, the defendants . . . are enjoinedfrom failing to appoint as permanent Correction 
Sergeants (Male) pursuant to the,new procedures at 
least one Black or Hispanic employee for each three 
white employees so appointed, until the combined 
percentage of Blacks and Hispanic persons in the 
ranks of Correction Sergeant (Male) is equal to the combined percentage of Black and Hispanic 
persons in the ranks of Correction Officers 
(Male)." (A.244) (emphasis added).  ̂ nt'd)

12



corrections personnel. See generally, Attica: The Official Report 
of The New York State Special Commission on Attica (Bantam, 1972).

An additional factor which has been cited in approving relief 
of this nature is that the quota is of short duration. Patterson, 
supra, 514 F.2d at 776 (concurring opinion of Feinberg, C.J.); 
Vulcan, supra, 490 F.2d at 399. In the instant case, the goal 
could be met immediately. While there is no record evidence as to 
current minority representation in the rank of Correction Officer, 
the Brief for Defendants-Appellants states that as of May 27, 1974, 
13.1% of Correction Officers were Black or Hispanic (Br. at 131).
At the time defendants' brief was filed, November 6, 1974, there
were 245 sergeant "slots," 128 of which were being filled by 
provisional appointees (id_.at 122-23 and n.*)- Defendants are 
under an obligation, under the provisions of the decree affirmed 
by the panel and pursuant to State law, to develop a new selection 
procedure as quickly as possible in order to replace provisional 
appointees with permanent appointees.

If when the 128 provisional appointees are replaced by
permanent appointees, appointments are made in the ratio of one
minority for every three non-minorities, that is, 32 minorities and

6/96 non-minorities, the goal will have been met.

5/ |cont'd).
Plaintiffs read this as requiring the appointment only of persons who have been found to be qualified under the new selection procedures. 
Any ambiguity, could, of course, be resolved on remand.
6/ 13% of 245 (the total number of Sergeants) equals 32. While the
decree does not fix the time at which the percentage of minority 
representation among correction officers is to be ascertained for

13 (cont1d)



Conclusion
Rehearings eii banc are normally reserved for cases of

exceptional importance and to resolve conflicts of decision
2/within the circuit. The issue of affirmative relief is 

manifestly one of great importance, both to groups which 
have been the victims of racial discrimination and to the 
public at large. The panel decision is in conflict with other 
decisions of the circuit; unsettled law discourages settlement 
and encourages litigation and appeals. This decree involving 
affirmative relief which could be implemented immediately 
(p.13, supra), and reflecting the care and wisdom of a highly 
respected judge "should be almost the last to attract appellate

6/ (cont'd)
purposes of determining whether the goal for minority Sergeants 
has been met, plaintiffs have not interpreted the decree to require a "permanent" quota (compare slip op. at 5414), but 
merely to require that at one point in time the minority representation among Sergeants reach the level of minority 
representation among Officers. If the Court feels that the 
order is unsatisfactory in that it does not designate either 
a fixed percentage or a fixed time for ascertaining the 
percentage, this could be rectified on remand. Cf. Rios v. 
Enterprise Association Steamfitters, Local 638, 501 F.2d 622,
633 (2nd Cir. 1974).
1/  Rule 35, Federal Rules of Appellate Procedure; Moody v. 
Albermarle Paper Co. 417 U.S. 622, 626 (1974);, United States v. 
American Foreign Steamship Corporation, 363 U.S. 685, 689 (1960); 
Western P.R. Corp. v. Western P.R. Co., 345 U.S. 247, 270-71(1953) 
(concurring opinion of Frankfurter, J.)

14



intervention." Vulcan, supra, 490 F.2d at 399 (Friendly, J.) 
This, therefore, is one of the rare cases in which judicial 
efficiency would he advanced by en banc resolution of the 
conflict which the panel's opinion has generated.

Respectfully submitted,

MORRIS J. BALLER 
DEBORAH M. GREENBERC 10 Columbus Circle Now York. New York 10019
Attorneys for Plaintiffs- 

Appellees

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CERTIFICATE OF SERVICE
This is to certify that on this 20th day of August, 

1974, I served two copies of the Appellees' Petition for 
Rehearing and Suggestion for Rehearing En Banc upon the 
following counsel by United States Mail, postage pre­
paid :

Hon. Louis J. Lefkowitz 
Attorney General of the State 

of New York
Judith A. Gordon, Esq.Assistant Attorney General of 

the State of New York 
Two World Trade Center 
New York, New York 10047
Richard R. Rowley, Esq.
Sneeringer & Rowley, P.C.
90 State Street 
Albany, New York 12207

Attorney for Plaintiffs-Appellees 
Edward L. Kirkland and 
Nathaniel Hayes