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VULCAN SOCY. OF NEW YORK CITY FIRE DEPT.

June 12, 1973

Vulcan Society Of New York City Fire Department, Inc. et al., Plaintiffs
v.
Civil Service Commission Of City Of New York et al., Defendants


Weinfeld, D.J.


The opinion of the court was delivered by: WEINFELD

WEINFELD, D.J.:

This is a civil rights action brought under 42 U.S.C., sections 1981 and 1983, and their jurisdictional counterparts, 28 U.S.C., sections 1331, 1343(3) and 1343(4), challenging the validity of the hiring and promotion procedures of the New York City Fire Department (hereafter the "Department") on the ground that they discriminate against blacks and Hispanics in violation of the equal protection clause of the Fourteenth Amendment. Essentially the claim is that the challenged procedures do not fairly test the skills and qualifications needed to become a fireman or, after appointment, to perform the duties of higher positions. The issues presented for the Court's determination at this time concern only the entrance procedures.

 The action was commenced as a class suit by five black and Hispanic plaintiffs who took the most recent civil service examination for firemen (hereafter "Exam 0159") but either failed to pass or whose rankings upon passing make it unlikely that they will be appointed. Plaintiffs also include the Vulcan and Hispanic Societies, whose memberships comprise most of the black and Hispanic firemen and officers of the Department, many of whom it is alleged have been effectively barred from promotion because of the discriminatory nature of the promotional examinations. *fn1" The defendants are the Commissioner of the Department, as well as the administrative agencies of New York City and those individuals responsible for promulgating and preparing the challenged entrance and promotional procedures.

 Upon the filing of the action plaintiffs moved for a preliminary injunction particularly directed towards enjoining the appointment of eighty-five men based upon the results of Exam 0159 who were ordered to report for duty on January 27, 1973, to commence an eight-week training course. Plaintiffs also sought to enjoin the contemplated appointment of some 628 others from this list beginning in March 1973 and extending over a thirteen-month period. *fn2" The motion was denied as to the eighty-five men in view of the critical shortage of manpower that existed in the Department and the delay by plaintiffs in making their application. In sum, the Court concluded, particularly in view of the sharply contested fact issues, that the harm to the public outweighed the irreparable injury alleged by the plaintiffs; however, the denial was without prejudice to further consideration of plaintiffs' application for a preliminary injunction as to those scheduled for future appointment. *fn3" The hearing on the continued application for preliminary injunctive relief took seven days, during which extensive testimony was offered by both sides, with a transcript running more than 1,000 pages, and many exhibits were received in evidence. With the issues so thoroughly probed, the Court, pursuant to Rule 65(a) (2) of the Federal Rules of Civil Procedure, ordered the trial of the action on the merits to be advanced and consolidated with the hearing on the motion for preliminary injunctive relief.

 The Examination Procedure

 An applicant for the position of fireman must first take a written entrance examination, which is given approximately every four years. Those who fail to score 70% on this examination are eliminated from further consideration, and those who achieve 70% or better are ranked in the order of their scores. The resulting "eligible list" remains in effect and is the exclusive source of appointments until the next entrance examination is administered and a new eligible list established. As openings occur in the Department, they are filled by candidates in the order of their ranking on the current eligible list, provided that they also pass a second stage qualifying process which consists of (a) a test of physical strength and endurance, (b) a medical examination and (c) a character evaluation. These components are administered on a pass-fail basis. In addition, there are three grounds for automatic disqualification from appointment which are relevant to this action: (a) lack of a high school or equivalency diploma, (b) a height of less than 5'6" and (c) any conviction for petty larceny or a felony. Plaintiffs challenge the constitutionality of the written examination, the character review and the grounds for automatic disqualification. They also attack the absence of a requirement restricting appointment to those applicants residing in New York City. *fn4"

 At the trial, plaintiffs' proof was directed principally toward the written examination (0159) which was administered on September 18, 1971. Defendants established an eligible list on January 18, 1973, *fn5" which ranked the approximately 85% of the candidates who passed Exam 0159 in the order of their scores. The written examination, designed to determine which applicants had the capacity to learn and perform the duties of a fireman, consisted of five sections, each containing twenty multiple choice questions. Sections were devoted to vocabulary; reading comprehension; mechanical, scientific and mathematical knowledge; job situation questions (which appear to test familiarity with various aspects of firefighting); and New York City government and current events. Plaintiffs contend that Exam 0159 not only had a discriminatory impact upon racial minorities, but failed to meet professionally acceptable standards. In particular, they challenge (1) the inclusion of the twenty questions on city government and current events, and (2) the use of a selection procedure which fails to accord competitive weight to the physical examination and bases the order of appointment solely upon the scores achieved on the competitive written examination. They argue that the physical aspects of the fireman's job are of such significance that they merit competitive rating and that the failure to do so adds to the discriminatory impact of the competitive written examination.

 The Prima Facie Case

 The initial question is whether plaintiffs have established that Exam 0159 had a sufficiently discriminatory impact on minority applicants to impose upon the defendants the burden of establishing the examination is justified notwithstanding its discriminatory impact. *fn6" Did the examination disadvantage minorities to a "significant and substantial" degree? *fn7"

 A total of 14,168 applicants took Exam 0159, of whom 12,049, or approximately 85%, passed with scores of 70 or above. According to a "head count" conducted by members of the Vulcan Society, 1,646, or 11.5%, of those who entered the examination halls were black or Hispanic. The Department, in due course, notified the highest ranking 7,987 candidates who had passed the written examination to report for their physical and medical examinations, and of these a total of 4,462 appeared for and passed the second stage of the selection process. *fn8" With respect to these 4,462, the Department conducted its own ethnicity survey, which reflected that 249, or 5.6%, were minorities. David Siegmund, a professor of mathematical statistics at Columbia University, was called by plaintiffs to determine, on the basis of the Vulcan Society's head count and the Department's sight survey, the relative impact of Exam 0159 on whites and minorities. Taking the first 4,000 on the eligible list, *fn9" of whom 2,418 were finally qualified, the expert calculated that while 11.5% minorities took the written examination, only 4.5% of those who passed the qualifying medical and physical examinations, as well as the written examination, were minorities. Another way of describing the relative impact of the examination, according to Professor Siegmund, is that 18.4% of whites who took Exam 0159 ranked in the top 4,000 and survived the medical and physical examinations, while the comparable figure for minorities is 6.6% -- a ratio of 2.8 to 1. He testified that the disparity reflected by these results was statistically significant to a very high degree; that the differential impact would have occurred by chance less than one time out of 10,000. In sum, he concluded that the entire examination process had a substantial discriminatory impact on the minority groups. Upon the basis of the entire 7,987 candidates called for medical and physical examinations, Professor Siegmund calculated that only 15% of minority examinees as against 34% of white applicants passed these procedures as well as the written examination -- a ratio of about 2.3 to 1. He considered the disparity concerning these 7,987 "significant" in the same sense he described the disparity regarding the first 4,000 candidates.

 Plaintiffs' statistical analysis of comparative examination performance is corroborated by the overwhelming disparity between minority representation in the Department (5%) and in the general population of New York City within the age group eligible for appointment (32%). Most courts have viewed comparisons of this kind as a factor to be considered where the job opportunity in question does not require specialized educational training, but is one open to the general public as is that of fireman. *fn10" At the least, this extreme incongruity *fn11" may be considered confirmatory of plaintiffs' statistical showing.

 Plaintiffs' statistical calculations, which defendants do not challenge in themselves, establish a prima facie case of de facto racial discrimination. In Chance v. Board of Examiners *fn12" the overall white passing rate was approximately 1.5 times that of minorities; whites passed the two most important examinations at rates of 2 and 1 1/3 times that of minorities. *fn13" Consequently, if the raw data upon which Professor Siegmund's analysis was based is accepted, the even greater disparity in the instant case readily meets the standard of a "significant and substantial" discriminatory impact adopted by the Court of Appeals in Chance, thereby requiring the defendants to establish that the examination was "job related," discussed hereafter. *fn14"

 The defendants seek to overcome the force of plaintiffs' statistical analysis and their contention that it reveals "a disparity of sufficient magnitude to amount to a prima facie case of invidious de facto discrimination" *fn15" by challenging the accuracy and sufficiency of the raw data relied upon by plaintiffs. The thrust of their attack is directed at the methods employed to gather the relevant data and certain alleged gaps in the information compiled. Before reviewing defendants' objections, however, it should be noted that where public employment practices are under challenge defendants usually have superior access to relevant statistical data than plaintiffs and that the latter will often be dependent upon the efforts and good faith of the former. In addition, statistical evidence by its very nature deals with probabilities rather than certainties. All that can be required of methods employed in gathering such evidence is that they assure reasonably accurate findings. Absolute perfection usually is not attainable in this kind of endeavor. *fn16" The right of racial minorities to demand that the state justify even de facto discrimination may not be so restricted that it exists in principle but not in fact.

 Defendants first attack the accuracy of the head count made by members of the Vulcan Society of the ethnicity of those who took the written examination. The counting procedures employed were sufficient to guarantee reasonably accurate results. *fn17" On the morning of the examination members of the Vulcan Society stationed themselves outside the entrance to each examination site long before the start of the examination and counted on clickers the number of blacks and Hispanics who entered. The candidates entered at a pace that permitted accurate counting of each black and Hispanic, and in cases of doubt whether an individual belonged to a minority group the counters, pursuant to instruction, did not include him in the count. The counters, who were blacks, considering their background and experience, could in the vast majority of cases readily ...


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