The opinion of the court was delivered by: CARTER
Although the above four cases concern different subject matter (79 Civ. 5314 involves examinations for entry level police officers and 80 Civ. 5603, 81 Civ. 0537 and 81 Civ. 4510 involve examinations for promotion to police sergeant), the two stipulations of settlement proposed for disposition of these class actions may logically be discussed and determined in one opinion since the basic determinative considerations which affect decision are substantially the same in all of the cases.
Guardians Association of the New York City Police Department, et al. v. Civil Service Commission of the City of New York, 79 Civ. 5314 (RLC) is the oldest of the four cases and the only one that went to trial. The lawsuit was filed on October 5, 1979. Here plaintiffs complained that examination # 8155 for appointment of entry level police officers in the New York City Police Department had a racially discriminatory impact on black and Hispanic candidates. The court found that plaintiffs had sustained their burden of establishing a prima facie claim that Title VII of the United States Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., had been violated. The Policewomen's Endowment Association of the City of New York and the United States filed amicus curiae briefs in support of plaintiffs' claim that the examination violated Title VII. Defendants were ordered as a long term goal to seek to achieve 30 percent representation of blacks and Hispanics on the police force and as an interim goal to appoint 50 percent of the entry level police officers from among qualified black and Hispanic applicants, to use the eligibility list derived from examination # 8155 as the pool from which to select such officers, and to develop procedures for selection and appointment of entry level police officers consistent with Title VII. 484 F. Supp. 785 (S.D.N.Y.1980). On appeal, the interim requirement that 50 percent of the entry level police officers appointed be black and Hispanic was modified to 331/3 percent. In holding that Title VII had been violated, the court of appeals stressed the discriminatory nature of the use of examination # 8155 eligibility list in a rank order as the basis for selection. 630 F.2d 79 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S. Ct. 3083, 69 L. Ed. 2d 954 (1981).
While the matter was on appeal, a new examination (# 1010) for appointment to entry level positions was developed and given. 35.4 percent of those taking, and 28.5 percent of those passing, this examination were black and Hispanic. If rank order was the basis for appointment, 18 percent of the 8,000 top ranked candidates would be black and Hispanic.
Plaintiffs contended that examination # 1010, as did the prior examination, violates Title VII and the city was equally confident that no violation had occurred. Preparations for trial were underway, with the parties readying themselves for a trial date in June. During this period negotiations were going forward to settle the case. The court was notified in June that settlement had been reached in principle, and the stipulation of settlement, signed by the parties and agreed to by the amicus curiae, was filed and signed on August 6, 1981, by the court. Notice of the proposed settlement was sent to all members of the class and hearing on the proposal was scheduled for October 2.
The agreement provides for the use of the results of examination # 1010, with 64 accepted as the passing score. The rank order eligibility list of examination # 1010 is to be divided into two parts. All candidates scoring equal to or higher than the 12000th person on the list are to be randomly selected by computer for further processing for selection for appointment to the January, 1982 class of the Police Academy. Candidates in this group not selected, unless rejected for failure to meet other requirements, are to receive priority consideration for appointment to entry level positions above all other candidates on the # 1010 eligibility list. All the remaining candidates scoring 64 or above are to be randomly selected for appointment as the need arises. It is anticipated that 3500 to 4500 appointments are to be made within the next two years and that the list will be exhausted. It is also agreed that the list is to be used until exhausted or until it expires four years from the date of its promulgation.
The names and scores of candidates who took examination # 1010 are not to be revealed to the New York City Police Department, and any such information currently in the possession of the department is to be turned over to the New York City Department of Personnel. No one in the police department is to request any candidate to reveal his or her test score. The police department is to receive only the computer processed list of candidates prepared in accord with the terms of the agreement.
The city is committed to undertaking a professionally developed criterion related validity study to determine the degree of correlation between how well a candidate performed on examination # 1010 and how well the candidate, if appointed, subsequently performs as a police officer. Plaintiffs' experts are to be accorded timely opportunity to comment on the development and conduct of this study.
The Hispanic Society, et al. v. Civil Service Commission of the City of New York, et al., 80 Civ. 5603 (RLC), was filed on October 2, 1980. This suit was instituted on behalf of a class of Hispanic and black examinees who had either failed promotion to sergeant's examination # 8539 or had passed the test but are too low on the eligibility list to have any reasonable expectation of being reached for appointment in the foreseeable future. Plaintiffs alleged that the test had a discriminatory impact on blacks and Hispanics in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Policewomen's Endowment Association, et al. v. Civil Service Commission of the City of New York, et al., 81 Civ. 0537 (RLC), was filed on January 28, 1981, on behalf of a class of women examinees who, like the blacks and Hispanics, had either failed examination # 8539 or received such a low passing grade that appointment to the position of sergeant was not a reasonable expectation. The women claimed gender based discrimination in violation of Title VII.
In both cases injunctive relief was sought to bar the city from making use of the rank order results of the test. The cases were consolidated in effect with the filing of the Policewomen's case, although no formal order to that end was entered.
United States v. City of New York, et al., 81 Civ. 4510 (RLC), was filed on July 21, 1981. In that lawsuit the government charged that the city was engaged in a pattern or practice of discrimination against women, blacks and Hispanics in the selection and promotion of police officers in the New York City Police Department in violation of Title VII. Relief enjoining this pattern or practice was sought.
A group of individuals representing and on behalf of the Sergeant's Candidates Association moved to intervene as party defendants. The Sergeant's Candidates Association is an organization composed of non-minority members who had passed examination # 8539 and who had reasonable expectations of promotion if the examination's validity was upheld. The Sergeant's Benevolent Association also moved to intervene as party defendants in 80 Civ. 5603. This organization consists of members of the police force who had already attained sergeant status. A coalition of eight fraternal organizations in the police department also moved to intervene as party defendants.
On March 2, 1981, the motions of the Sergeant's Candidates Association and the Sergeant's Benevolent Association were granted pursuant to Rule 24(b), F.R.Civ.P. The members of the Sergeant's Candidates Association have a clearly defined interest in the outcome of the litigation because a conflict might develop between the city and the non-minority candidates and because the non-minority candidates might have a unique viewpoint to contribute to the litigation. The Sergeant's Benevolent Association was permitted to intervene despite its attenuated interest in the outcome of the litigation because, if successful, plaintiffs might be accorded a constructive seniority over some officers currently sergeants. Since all the real interests of non-minority candidates would be adequately protected by the city and the above intervenors, the motion of the fraternal groups was denied.
The Hispanic Society case was certified as a class action on April 27, 1981-the class consisting of all blacks and Hispanics who had taken examination # 8539 and had either failed the test or passed it with a score so low as not to afford any reasonable expectation of promotion to the rank of sergeant in the foreseeable future. On March 30, 1981, the Policewomen's Endowment Association sought class certification on behalf of women applicants who had taken the ...