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UNITED STATES v. NEW YORK

September 6, 1979

United States of America, Plaintiff
v.
State of New York et al., Defendants.



The opinion of the court was delivered by: FOLEY

MEMORANDUM

This action was commenced on September 8, 1977, by the Attorney General on behalf of the United States of America against the State of New York and William G. Connelie, Superintendent of the New York State Police, alleging a "pattern or practice" of discriminatory employment practices with respect to blacks, Spanish-surnamed Americans, and women in deprivation of the full enjoyment of rights secured by Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C. §§ 2000e Et seq., the Omnibus Crime Control and Safe Streets Act of 1968, As amended, 42 U.S.C. §§ 3701 Et seq., the State and Local Fiscal Assistance Act of 1972, As amended, 31 U.S.C. §§ 1221 Et seq., and the Fourteenth Amendment to the Constitution of the United States. The Attorney General charges a pattern or practice of discrimination along with eight individual claims of employment discrimination in connection with the hiring and promotional practices of the New York State Police. In response, the State of New York and the New York State Police (hereinafter at times referred to as the "N.Y.S.P.") assert that they have not engaged in any purposeful discrimination and that they have utilized a validated examination for appointments to the entry-level position of trooper.

More than a year prior to the filing of the complaint herein, the United States Department of Justice notified the State of New York that an investigation had begun concerning the employment practices of the New York State Police. Thereafter, on July 20, 1977, the Superintendent of the New York State Police was informed that the Attorney General had authorized the filing of a complaint based on that investigation. Attempts at voluntary compliance or conciliation failed, in part due to a state court ruling, Ruddy v. Connelie, 89 Misc.2d 413, 391 N.Y.S.2d 819 (Sup.Ct.Albany County 1977), Aff'd, 61 A.D.2d 372, 402 N.Y.S.2d 245 (3d Dep't 1978), which held that the New York State Constitution prohibited the appointment of state troopers from the current eligible list, established in June 1976 based on a competitive examination given in 1975, in any manner other than in strict compliance with its numerical order. See United States v. State of New York, 77-CV-343, at 2-3 (N.D.N.Y. November 18, 1977). Appointments to the New York State Police are made on the basis of merit and fitness from an eligible list established as a result of competitive examinations. See, e.g., N.Y.Const. art. V, § 6; N.Y.Civil Service Law § 61 (McKinney 1973). The nine individuals, white males, who had successfully challenged this effort by the New York State Police to hire members of minority groups without regard to the strict numerical order of the eligible list were subsequently joined in this lawsuit as parties-defendant. See United States v. State of New York, 77-CV-343 (N.D.N.Y. November 18, 1977); United States v. State of New York, 77-CV-343 (N.D.N.Y. December 23, 1977).

 Within days after the commencement of this action a new class of troopers was scheduled to be sworn and begin training at the New York State Police Academy in Albany, New York. Plaintiff's motion for a temporary restraining order enjoining the New York State Police from appointing the members of this proposed class, who had already been sent appointment notices, was denied. This class of 156 troopers was sworn on September 19, 1977. Such appointments are made for a probationary period of one year after which time a trooper becomes a permanent appointee. 9 N.Y.C.R.R. §§ 475.1, 475.2 (June 27, 1962). Then, on October 25, 1977, in accordance with the Omnibus Crime Control and Safe Streets Act of 1968, As amended, and pursuant to 42 U.S.C. § 3766(c)(2)(E) and (c)(3) the Court entered a preliminary injunction enjoining the United States from suspending payment of Law Enforcement Assistance Administration funds to the State of New York and enjoining the State of New York and Superintendent Connelie (hereinafter at times referred to as the "state defendants") from making any further appointments to the position of trooper until such time as this action could be heard on the merits and a decision rendered by the Court. See generally United States v. City of Los Angeles, 595 F.2d 1386 (9th Cir. 1979).

 Upon applications on behalf of the state defendants, this order was modified on January 25, 1978, and on June 16, 1978, to permit and provide for the appointment and training of two trooper classes. The need for these appointments was based on, among other reasons, the expected attrition rate in the force and the upcoming 1980 Winter Olympics to be held in Lake Placid, New York. The order of January 25, 1978, provided for the appointment of a class of 150 persons in rank order from the current eligible list but also directed that in addition there be appointed 12 qualified blacks, 8 qualified Spanish-surnamed Americans (hereinafter at times referred to as "SSA's"), See Finding of Fact No. 132, Infra, and 4 qualified females. The order of June 16, 1978, provided for the appointment of a class of 100 persons in rank order from the same eligible list and, again, an additional 18 qualified blacks and Spanish-surnamed Americans and 12 qualified females. This order also terminated the future use of this eligible list. See generally N.Y.Civil Service Law § 56 (McKinney Supp.1978).

 The trial of this action was concluded on July 21, 1978, after a total of 24 trial days. The submission with extensive briefs and detailed proposed findings of fact and conclusions of law necessarily took a long period of time before completion. Plaintiff's proposed findings of fact number 494, while the state defendants have submitted 477 proposed findings of fact and 78 pages of rebuttal to plaintiff's proposed findings of fact. There are a substantial number of proposed conclusions of law. The entire matter is now before the Court with jurisdiction predicated on 42 U.S.C. § 2000e-6(b), 42 U.S.C. § 3766(c)(3), 31 U.S.C. § 1242(g), and 28 U.S.C. § 1345. See United States v. State of New York, 82 F.R.D. 2 (N.D.N.Y.1978).

 In the interim, on November 21, 1978, the Court entered an order permitting the State of New York and Superintendent Connelie to prepare, recruit, announce, and conduct an examination for the position of trooper solely for the purpose of appointing a single class consisting of 160 qualified persons including 40 qualified blacks and Spanish-surnamed Americans and 24 qualified females. This examination has, as of this time, been completed and was conducted in accord with general procedures that were recommended by the parties to this lawsuit and approved by the Court.

 A case of this kind raises important, emotional, and complex issues touching upon the cross-cultural fabric of our society. The application of constitutional and statutory principles by a court cannot be expected to solve, even temporarily, all of the moral, social, and economic problems of a changing society. Nonetheless, such principles are flexible, and the ones pertinent here have been developed, interpreted, and applied in similar and in an increasing number of lawsuits of this nature. In exercising its responsibility "to announce its considered judgment," United States v. Butler, 297 U.S. 1, 62-63, 56 S. Ct. 312, 80 L. Ed. 477 (1936), on the legal arguments advanced in this litigation, the Court will do its best not to lose sight of the very basis for its existence to administer justice according to law. It is fully realized that there will be strong dissatisfaction and disagreement by many with and resentment to the rulings and conclusions herein made. It should be recognized, however, that personal interests at times have to be subordinated in order that important state and national interests can be properly served under controlling laws. In a progressive society, inequities cannot be ignored on the basis that they were caused by the conduct of previous generations for which the present generation shall bear no responsibility.

 In addition, I must note that no opinion on this matter could come near to incorporating all of the subtle and elusive factors underlying this action or attempt to announce proper procedures to be followed in validating an examination. I have been a federal judge for thirty years and never had the experience of preparing examinations of any kind. The ultimate issues for decision, however the existence of discriminatory employment practices and the job-relatedness of employee selection procedures can be determined as judges must do from the full record aided by the expert testimony produced. It must also be noted that on many occasions the figures and percentages cited in the findings of fact that support the final conclusions of law are only approximations. At times the figures reflect the fact that individuals failed to indicate their race or national origin on application forms. Minor discrepancies also appear in some of the various reports submitted to the Court. This does not detract from the significance of those figures or percentages and is noted merely for clarification.

 This has not been an easy decision. The factual findings necessitated in this area of the law are enough to boggle the minds of even the most educated of psychologists and lawyers. With that thought in mind, I must commend the attorneys on both sides for the competent manner in which this case has been presented. They have been more than diligent in their presentation and marshaling of the evidence and have been of great assistance to the Court. Their cooperation and courtesy with each other is appreciated. Their extensive and numerous proposed findings and conclusions were an invaluable source for my findings and conclusions.

 In an action such as this it is hard to escape the feeling that a court will be hopelessly entangled in the formulation of social policy and professional standards outside its field of expertise. This Court, indeed, has been led deep into the "jargon of psychology." See Vulcan Society v. Civil Service Commission, 490 F.2d 387, 394 (2d Cir. 1973). Yet, it is hoped that I have as much as possible steered clear of resting this decision on my own preconceived notions of desirable social legislation or that of others. It is my intention that the decision herein be reached on ascertainable legal principles as applied to the particular factual situation developed by the parties. See generally Friendly, The Courts and Social Policy: Substance and Procedure, 33 U.Miami L.Rev. 21 (1978).

 There is an important issue underlying this litigation that I feel I must address myself to. Even the most casual reader of this decision could not help but notice the friction and conflict between the United States Department of Justice and the United States Civil Service Commission (now replaced by the Office of Personnel Management and the Merit Systems Protection Board), See Reorganization Plan No. 2 of 1978, Reprinted in U.S.Code Cong. & Admin.News, pp. 9801-9807 (1978); 43 Fed.Reg. 60984 (December 29, 1978). No one could blame the state defendants if they feel misled by the federal government because of the conflicting positions of the employees of these two federal agencies. See generally Chaipis v. State Liquor Authority, 44 N.Y.2d 57, 66-67, 404 N.Y.S.2d 76, 375 N.E.2d 32 (1978). Such disagreements are to be expected in our massive structure of bureaucracy. As Justice Powell observed during the oral argument of Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978), with regard to the burden placed upon a court under somewhat comparable circumstances:

 
It is not easy to resolve issues of importance to the country when two cabinet level departments ...

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