Bushey v The New York State Civil Service Commission Brief of Defendant-Intervenor

    UNITED STATES DISTRICT COURT 
DISTRICT OF COLUMBIA 

ANGEL G. LUEVANO 

35572 Cabral Drive 
Fremont, Calinfomia 
(415) 489-3642 

94536 

MELODY A. VAN 

2643 Ocala Street 
Hayward, California 
(415) 785-8331 

94545 

VICKY L. CHAPMAN 

3080 Monaco Parkway 
Denver, Colorado 80207 
(303) 322-8770 

CIVIL ACTION 

No. 79- 

IMAGE DE CALIFORNIA, 

3004 16th Street, Room 106 
San Francisco, California 
(415) 

94103 
863-8232 

Plaintiffs 

We 

ALAN CAMPBELL, Director, 
Office of Personnel Management, 

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Defendant. ) 

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CLASS COMPLAINT FOR DECLARATORY, 
INJUNCTIVE AND OTHER RELIEF 

(CIVIL RIGHTS) 

Ze JURISDICTION AND VENUE 

1. This action is brought by the individual Plain- 

tiffs, on their own behalf and on behalf of the class they seek 

to represent, to enforce the provisions of g 717 of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e-16, with respect to the 

Professional and Administrative Career Examination (PACE), the 

primary entry-level examination for more than a hundred differ- 
ent professional, administrative, and technical occupations in 



a large number of federal agencies. This action is brought by 

the organization plaintiff on behalf of its members and on 

behalf of the class it seeks to represent, to enforce the same 

provision of law with respect to the same test. Injunctive 

and other appropriate equitable relief, including back pay, is 

sought. Jurisdiction is conferred upon this Court by §§ 706(f) 

(3) and 717(c) and-(d) of the Civil Rights Act of 1964, 42 U.S.Ci 

§§ 2000e-5(f) (3) and -16(c) and -(d). This is also a proceed- 

ing, pursuant to 28 U.S.C. § 2201, for a declaratory judgment 

as to the rights established under such provisions. 

2. This is the district in which the unlawful 

employment practice was committed and in which employment 

records relevant to such practice are maintained. 

The venue of this action is proper under g§ 706(f) 

of the Civil Rights Act of 1964, 42 U.S.C. § 2000ce-5(f). 

II. - PARTIES 

3. Plaintiff Angel Luevano is a Hispanic citizen of 

the United States. Plaintiff is a member of I.M.A.G.E. He is 

an applicant for Federal employment in a professional, adminis- 

trative or technical job in the San Francisco area. In April 

1978, Plaintiff Luevano was administered the PACE by the Civil 

Service Commission, the predecessor of the defendant Office of 

Personnel Management. _m May 1978, the Civil Service Commission 

informed plaintiff that he failed to achieve a passing score on 

the April 1978 administration of the PACE. This has barred him 

from consideration for all entry-level positions for which the 

PACE examination is used, without regard to his qualifications 

to fill such positions. 

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4. Plaintiff, Melody A. Van is a black woman, and 

is a citizen of the United States. She is an applicant for 

Federal employment in a professional, technical or adminis- 

trative job in the San Francisco area. In April 1978 Plain- 

tiff Van was administered the PACE by the U.S. Civil Service 

Commission. In May 1978, the Civil Service Conmission 

informed plaintiff that she failed to achieve a passing 

score on the April 1978 administration of the PACE. This 

has barred her from consideration for all entry-level posi- 

tions for which the PACE examination is used, without regard 

to her qualifications to fill such positions. 

5. Plaintiff Vicky L. Chapman is a black woman, and 

is a citizen of the United States. She is an applicant for 

Federal employment in a professional, technical or adminis-— 

trative job in the San Francisco area. In April 1978 Plain- 

tiff Chapman was administered the PACE by the U.S. Civil 

Service Commission. In May 1978, the Civil Service Commis-— 

sion informed plaintiff that she failed to achieve a passing 

score on the April 1978 administration of the PACE. This has 

barred her from consideration for all entry-level positions 

for which the PACE examination is used, without regard to her 

qualifications to fill such positions. 

6. Plaintiff, I.M.A.G.E. De California (IMAGE) is an 

unincorporated associated of Hispanic American Federal and 

State governmental employees organized solely to promote the 

employment of Hispanic Americans in government. In California, 



there are fifteen chartered IMAGE chapters and three prospec- 

tive chapters in various formative stages. Nationally, there 

are eighty IMAGE Chapters. IMAGE has approximately five 

hundred members in California and 3000 members nationwide. 

Approximately ninety-five percent of IMAGE members are employed 

by the Federal government. Plaintiff Angel Luevano is a member 

of IMAGE De California. Plaintiff IMAGE represents the 

interests of its members, and of other Hispanic persons who 

have been, are being or will be aggrieved by the discriminatory 

employment practices challenged herein. 

7 The defendant is the Director of the U.S. 

Office of Personnel Management. Under the provisions of 

Reorganization Plan No. 2 of 1978 and of the Civil Service 

Reform Act of 1978, 92 Stat. 1111, the U.S. Office of Personnel 

Management is the successor of the U.S, Civil Service Commission 

with respect to the functions which are the subject of this 

action. The U.S, Civil Service Commission developed the PACE as 

a screening system for selecting trainees for over one hundred 

professional, administrative and technical occupational series 

throughout the Federal government, and has had the responsibili- 

ty, to which the Office of Personnel Management has succeeded, 

of ensuring that the PACE not be used until it has been validated 

in accordance with the Uniform Guidelines on Employee Selection 

Procedures, 43 Fed. Reg. 38290 (1978), with the predecessor 

EEOC Guidelines on Employment Selection Procedures, 29 C.F.R. | 

§ 1607.1, or with the ‘Federal Executive Agency Guidelines on 

Employee Selection Procedures, 28 C.F.R. § 50.14, and Title VII. 

III, CLASS ACTION ALLEGATIONS 

8. This action is filed as a class action pursuant 

to Rule 23(b) (2) of the Federal Rules of Civil Procedure. The 

class includes all past, present and future Black and 

Hispanic applicants for professional, administrative or tech- | 



nical jobs for which the :!efendant administers the PACE ex- 

amination in the San Francisco Civil Service Region (Region IX), 

who have taken the PACE within the period of limitations or who 

will take it hereafter, and who have been, are being, or may in 

the future be, denied equal employment or promotional oppor- 

tunities as a result of defendant's use of the PACE as com- 

plained of herein. 

9(a)The class is so numerous that joinder of all 

members is impracticable. In just one administration of the 

PACE in the San Francisco Civil Service Region, in early 1977, 

a total of 183 persons were race-identified as Black or 

Hispanic. Even allowing for some class members taking the 

examination on more than one occasion within the period of 

limitations, the class should include at least a thousand 

members. 

(b)There are questions of law or fact common to the 

class. These include the questions (1) whether the PACE has a 

disproportionately adverse effect on Blacks and | 

Hispanics so as to shift to the defendant the burden of proving 

that the test is valid for the occupations for which it is used; 

and (2) whether the defendant's efforts to validate the PACE 

for these occupations have met the requirements of the Uniform 

Guidelines or of their predecessors. Where, as here, a test is} 

administered simultaneously to large numbers of people, ques- 

tions as to its disparate racial effect and as to its validity | 

are ideally suited for class treatment. 

(c)The claims of the plaintiffs are typical of the 

claims of the class. The individual plaintiffs have all been 

affected by the same practice that has affected the class mem- 

bers. They did not all apply for just one specific job, but 

were interested in a broad range of jobs subject to the PACE 

requirement. The members of IMAGE have been affected by these 

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practices in the same way that members of the proposed class 

| have been affected. 

(d) The plaintiffs will fairly and adequately protect 

{} the interests of the class. They have been affected by all of 

the practices challenged herein, and can prevail personally in 

this action only by prevailing on the class issues of disparate 

impact and of lack of a proper validation of the test, They 

therefore have no interests in conflict with those of the class. 

| The plaintiffs are represented by counsel who are experienced 

in the litigation of large-scale class actions challenging dis- 

i crimination in employment. 

| (e) By engaging in the practices described in para- 
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| graph 11, the defendant and his predecessors have both acted and| 

refused to act on grounds generally applicable to the class, 
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thereby making appropriate final injunctive relief and corres- 
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| ponding declaratory relief with respect to the class as a whole, 

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IV. STATEMENT OF CLAIMS | 
a eee ee | 

| 10. The PACE is a written examination which is 

supposedly a test of cognitive abilities. It has been developed 

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| and used by the U.S, Civil Service Commission and by its 

successor agency to select persons for entry-level positions in 

over one hundred nonclerical professional, administrative and 

technical occupational series in the executive branch of the i 

i federal government. Employees selected by the PACE are fre- 
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| uently placed in "career ladder" positions and subsequentl eae a y 

promoted to higher, ndén-supervisory levels without competition. 

Thus, failure to obtain employment through the PACE severely 

restricts opportunities in professional, administrative and 
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| technical positions in the Federal government. Competition is 

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| extremely intense for the jobs which are filled almost ex- 

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clusively through the PACE register, Nationally, there are 

approximately two hundred thousand (200,000) PACE testees vying 

Tat neiyti mitre: 



for the approximately eig) thousand (8,000) jobs filled from 

the PACE register. 

11. As a general rule, applicants are placed on the 

defendant's PACE register in rank order based solely upon their 

scores on the PACE written test. This means that, in most 

cases, the order in which interested applicants are considered 

for openings in the target occupations is based entirely on the 

score achieved on a single written test. Other abilities which 

may be relevant to the job are simply ignored. 

12. Because of the intense competition for the jobs 

filled from the PACE register, most PACE testees must score at 

least 90, although the passing score for the PACE is 70, to be 

considered for PACE-filled positions. Minute, statistically 

insignificant differences in PACE scores are often the de- 

termining factor as to which applicant is hired for such 

positions. 

13. The adverse impact of the PACE on plaintiffs and} 

their class is so severe that it threatens to segregate the mid-+ 

dle and upper levels of the executive branch of the Federal gov+ 

ernment. In the early 1977 administration of the PACE in San 

Francisco Civil Service Region, for example, 25.2% of the 

white applicants scored at or above 90 and were thus eligible 

for referrals to Federal agencies with jobs subject to the PACE 

available. Only 1.1% of blacks scored 90 or higher, and no 

Hispanics or Filipinos scored 90 or higher, 

14. Despite the disproportionately adverse effect of 

the PACE on Blacks and Hispanics, meither the de- 

fendant nor his predecessors has ever validated the PACE | 

according to any of the Guidelines described in paragraph 8, 

all of which have been in effect at some time during the develop- 

ment or use of the PACE. 

15. The actions and omissions alleged above were 



and are in violation of § 717(a) of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e-16(a). 

V. EXHAUSTION 
16(a). Plaintiff Luevano within 15 days of having been 

informed by the Civil Service Commission of his failure to achieve 

a passing score on the PACE, pursuant to 5 C.F.R. § 300.104 and 

5 C.F.R. 713.601 et seq., filed a personal and class charge of 

discrimination on the basis of race with the Civil Service 

Commission. The Civil Service Commission separated the 5 C.F.R. 

Part 300 aspect of the charge from the 5 C.F.R. Part 713 aspect | 

of the charge. No action has been taken on the 5 C.F .R, “Part 300, 

aspect, and more than 180 days have passed since the filing of | 

this charge. 

(b) The Civil Service Commission rejected the 5 C.F.R. 

Part 713 aspect of his charge. Plaintiff timely appealed that 

decision of the Civil Service Commission to the Civil Service 

Commission's Appeals Review Board (ARB). ‘The ARB referred plain- 

tiff's appeal to the Civil Service Commission's Internal Equal 

Employment Opportunity Office (EEOO). ‘The EEOO notified plain- 

tiff, by letter to his attorney dated June 7, 1978, that his class 

complaint had been rejected. Plaintiff timely filed an appeal 

with the ARB. On December 22, 1978 ARB issued a decision 

affirming the decision of the EEOO and informing plaintiff of 

his right to file an action in federal district court within 30 

days of receipt of the,decision (a copy is attached hereto as 

Exhibit A). The decision was received on December 30,2 1978; 

| therefore this action has been filed within 30 days of that date. 

17(a) Plaintiff Van within 15 days of having been in- 

formed by the Civil Service Commission of her failure to achieve 

a passint score on the PACE, pursuant to 5 C.F.R. § 300.104 and 

5 C.F.R. 713.601 et seq., filed a personal and class charge of 

discrimination on the basis of race with the Civil Service Com- 

mission. No action has been taken on the 5 C.F.R. Part 300 as- 

pect, and more than 180 days have passed since the filing of thi 

charge. sBeee 



(b) The Civil Service Commission rejected the 5 C.F. 

R. Part 713 aspect of her charge. Plaintiff timely appealed that 

decision of the Civil Service Commission to the Civil Service 

Commission's Appeals Review Board (ARB). ‘The AkB referred plain+ 

tiff's appeal to the Civil Service Commission's Internal Equal 

Employment Opportunity Office (EEOO). On September 18, 1978, the 

EEOO notified plaintiff, by letter to her attorney, that her 

class complaint had been rejected. Plaintiff timely filed an ap- 

peal with the ARB. No response has been received from the ARB. 

Plaintiff Van will take appropriate action to amend and supple- 

ment this Complaint when exhaustion is complete as to the 5 C.F. 

R. Part 713 aspect of her charge. 

18(a) Plaintiff Chapman within 15 days of having been 

informed by the Civil Service Commission of her failure to ach- 

ieve a passing score on the PACE, pursuant to 5 C.F.R. § 300.104} 

and 5 C.F.R. 713.601 et seq., filed a personal and chall charge 

of discrimination on the basis of race with the Civil Service | 

Commission. No action has been taken on the 5 C.F.R. Part 300 | 

aspect, and more than 180 days have passed since the filing of 

this charge. 

(b) The Civil Service Commission rejected the 5 C. | 

F.R. Part 713 aspect of her charge. Plaintiff timely appealed | 

that decision of the Civil Service Commission to the Civil Ser- 

vice Commission's Appeals Review Board (ARB). The ARB referred 

plaintiff's appeal to the Civil Service Commission's Internal 

Equal Employment Opportunity Office (EEOO). On September 18, 

1978, the EEOO notified plaintiff, by letter to her attorney, 

that her class complaint had been rejected. Plaintiff timely 

filed an appeal with the ARB. No response has been received from 

the ARB. Plaintiff Chapmen will take appropriate action to amend 

and supplement this Complaint when exhaustion is complete as to 

the 5 C.F.R. Part 713 aspect of her charge, 

19. On May 19, 1978, within 15 days of having been in- 

formed by certain of its members of their failure to obtain a 

passing score on the PACE, plaintiff IMAGE timely filed on behalf 

of its members who have been, are being, or may be adversely af- 

fected by the discriminatory practices of the Civil Service Com- 

er 



mission, complained of her in, formal complaints pursuant 

to 5 C.F.R. g 713.601, 5 C.F.R. § 300.104 and Title VII 

of the Civil Rights Act of 1964, as amended. The complaints 

stated, inter alia, that the PACE as administered by the Civil 

Service Commission to IMAGE members violated Title VII of the 

Civil Rights Act of 1964, as amended, The complaints further 

stated that the PACE, as administered in April, 1978 to IMAGE 

members, was racially discriminatory, had a severe adverse 

impact on members of said class, had not been validated 

according to either the EEOC Guidelines on Employment Selection 

Procedures, 29 C.F.R. § 1607.1, or according to the Federal 

Executive Agency Guidelines on Employment Selection Procedures, 

29 C.F.R. § 50.14, or according to the then proposed new 

Uniform Guidelines. In June, 1978, the Civil Service Commission | 

informed plaintiff that it could not file a complaint as an 

organization. Plaintiff timely requested the Civil Service 

Commission for an opportunity to consult an Equal Employment 

Office Counselor pursuant to 5 C.F.R. § 713.602. No response | 

has been received from the Civil Service Commission and more 

than 180 days have passed since the filing of plaintiff's 

initial complaint. 

Vi. PRAYER FOR RELIEF 

22. Plaintiffs and the class they represent are 

entitled to back pay to compensate them for losses suffered as 

a result of defendant's illegal acts, policies and practices 

complained of herein. Plaintiffs and the class they represent 

have no plain, adequate or complete remedy at law to redress 

the wrongs alleged herein and this suit for a declaratory 

judgment and injunctive relief is their only means of securing 

adequate redress from defendant's unlawful practices. Plain- 

tiffs and the class they represent, are now suffering and will 

continue to suffer, irreparable injury from defendant's acts, 

policies and practices set forth herein. 

WHEREFORE, plaintiffs respectfully pray that this Court 

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enter judgment granting p] \intiffs: 

BN A declaratory judgment that defendant's acts, 

policies and practices complained of herein, violate the rights 

of plaintiffs and the class they represent secured by Title VII 

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) 

et seq.; 
2 An injunction enjoining defendant, his agents, 

employees, and those acting in concert with them and at their 

direction from continuing to use the PACE; 

ae An injunction enjoining defendant, his agents, 

employees, and those acting in concert with them and at their 

direction from continuing or maintaining any policy, practice 

or custom of denying, abridging, withholding, conditioning, 

limiting, or otherwise interfering with the rights of plain- 

tiffs and the members of the class they represent to enjoy equal! 

employment opportunities as secured by Title VII of the Civil 

Rights Act of 1964, as amended 42 U.S.C. § 2000(e) et seq.; 

4. An award of back pay, in an amount to be proved, | 

to plaintiffs for their losses caused by defendant's dis- 

criminatory acts, practices and policies complained of herein. 

Sis Plaintiffs' costs of suit, including reasonable 

attorneys' fees. 

6. Such other and further relief as the Court may 

deem just and proper. 

Respectfully submitted, 

RICHARD T. SEYMOUR 

Lawyers Committee for Civil 
Rights Under Law 

733 15th Street, N.W., Suite 520 
Washington, D.C. 20005 
Telephone: (202) 628-6700 

ELAINE R. JONES 

BARRY L. GOLDSTEIN 

806 15th Street, N.W., Suite 940 
Washington, D.C. 20006 
Telephone: (202) 638-3278 

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Of Counsel: 

San Francisco Lawyers' 
Committee for Urban 
Affairs 

Eva J. Paterson 
625 Market Street, Suite 1208 
San Francisco, California 941 
Telephone: (415) 543-9444 

Legal Aid Society of Alameda 
County 

Russell Galloway 
2357 San Pablo Avenue 
Oakland, California 94612 
Telephone: (415) 465-4376 

JACK GREENBER' 

CHARLES STEPHEN RALSTON 

PATRICK 0. PATTERSON 

GAIL J. WRIGHT 

NAACP Legal Defense and 
Educational Fund, Inc, 

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

McCUTCHEN, DOYLE, BROWN & ENERSEN 

JACK G. KNEBEL 

3 Embarcadero Center 
San Francisco, California 94111 
Telephone: (415) 393-2000 

ERICKSON, BEASLEY AND HEWITT 

JOHN H. ERICKSON 

12 Geary Street, Eighth Floor 
San Francisco, California 94108 
Telephone: (415) 781-3040 

IMAGE Community and Economic 
Development Project 

VFERNANDO GARCIA 
3004 16th Street, Suite 106 
San Francisco, California 94103 

Attorneys for Plaintiffs 

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Fee