Appeal from an order and decree of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, invalidating as unconstitutionally discriminatory a Civil Service examination for sergeant in the New York State Department of Correctional Services. Affirmed in part and reversed in part.
Hays, Timbers and Van Graafeiland, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
On October 14, 1972, the New York State Department of Civil Service offered examination 34-944 for promotion to the position of correction sergeant in the New York State Department of Correctional Services. One thousand, two hundred sixty-three white correctional officers took this examination, and three hundred eighty-nine, or 30.8%, received a passing score. Of the one hundred four Blacks tested, eight, or 7.7% passed; of the sixteen Hispanics, two, or 12.5% passed. Thus was this litigation born.
On April 10, 1973, Edward Kirkland and Nathaniel Hayes, two Black officers who failed, joined with the Brotherhood of New York State Correction Officers, Inc., in instituting this civil rights class action*fn1 on behalf of their similarly situated fellow officers, seeking to enjoin any promotions to sergeant based on the results of the examination.
The case was tried before Judge Lasker in July of 1973, and this appeal is taken from his order and decree. Basically, the order provided as follows:
1. It declared examination 34-944 invalid as unconstitutionally discriminatory and enjoined defendants from making any appointments to sergeant based on the results thereof.
2. It mandatorily enjoined defendants to develop a lawful, non-discriminatory selection procedure for the position of sergeant, requiring that it be validated in accordance with the E.E.O.C.*fn2 Guidelines on Employment Selection Procedures and that all validation studies be performed by means of empirical, criterion-related validation techniques insofar as feasible. It also required that the proposed selection procedure be submitted to the plaintiffs for review and to the court for approval prior to its adoption.
3. It authorized defendants to request the court's permission for the making of interim appointments, with the provision that members of the plaintiff class receive at least one out of every four such promotions until the combined percentage of Black and Hispanic sergeants was equal to the combined percentage of Black and Hispanic correction officers.
4. It required that, following the development and court approval of revised selection procedures, defendants continue to promote at least one Black or Hispanic employee for each three white employees promoted until the combined percentage of Black and Hispanic sergeants was equal to the combined percentage of Black and Hispanic correction officers.
5. It awarded attorney's fees to plaintiffs as part of their costs, retaining jurisdiction in the court to determine the amount thereof.
Defendants have appealed from this order, contending primarily that examination 34-944 was job-related and therefore not unconstitutionally discriminatory; that the court erred in requiring future examinations be criterion-validated; that the imposition of promotion quotas was unjustified and constituted reverse discrimination; and that the award of attorney's fees was improper.
By order to show cause dated April 23, 1974, Albert M. Ribeiro and Henry L. Coons, correction officers who had taken and passed examination 34-944, sought leave to intervene as parties defendant on behalf of themselves and a class of similarly situated correction officers, alleging that they were indispensable parties, since the relief sought by plaintiffs would deprive them of their personal and property rights without due process of law. This motion was granted, with the proviso that intervenors could not litigate any matters which they might have litigated had they been parties from the outset. Intervention was also limited to the petitioners as individuals and not as representatives of a class.
Intervenors also appeal from the final order and decree, urging as additional error that they should have been joined at the outset as indispensable parties. Since this latter contention involves the litigation at its inception, we will address ourselves to it first.
DISMISSAL FOR NON-JOINDER
Intervenors' claim of indispensability is grounded upon the provisions of the New York Civil Service Law. The office of correction sergeant is in the competitive class under such law.*fn3 Article 5, Section 6, of the New York Constitution requires that appointments and promotions in the Civil Service "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive".
The Civil Service Law, following the mandate of the Constitution, requires the taking of competitive examinations and the appointment and promotion to covered positions from eligible lists promulgated from the results of such examinations.*fn4 Appointment or promotion is generally required to be made from one of the three persons standing highest on the eligible list.*fn5 When there is no appropriate eligible list available, provisional appointments or promotions are authorized, pending the creation of a new list;*fn6 and provisional appointees secure certain benefits which may be applied against future permanent appointments.*fn7
The eligible list from the examination preceding 34-944 became exhausted in the Spring of 1972, and intervenors, together with some members of plaintiff class, received provisional appointments to correction sergeant. Intervenors were among the ninety persons who had passing scores on examination 34-944, and it was expected that all ninety would receive permanent appointments as sergeant. Such appointments were prohibited, initially by the District Court's temporary restraining order and finally by the order and decree appealed from.
That the intervenors were adversely affected by such orders can hardly be gainsaid.*fn8 However, this in itself is not determinative of their right to be joined as indispensable parties. When litigation seeks the vindication of a public right, third persons who may be adversely affected by a decision favorable to the plaintiff do not thereby become indispensable parties.*fn9
It may be that because of the "reverse discrimination" aspects of this case which will be discussed hereafter, intervention with the right to participate in the trial would have been appropriate if timely request therefor was made.*fn10 However, that question is not before us. We hold that intervenors' argument that the complaint should have been dismissed because they were not joined as indispensable parties could not be made for the first time one year after the trial had been completed. At that late date, the test of "equity and good conscience" foreclosed any such rights which intervenors might possibly have had.*fn11
That intervenors were aware of the litigation at its inception was clearly shown by the fact that the District Court's preliminary injunction prohibited their appointments. The orderly processes of justice do not permit that, with such knowledge, they ...