The opinion of the court was delivered by: LASKER
In 1975 we held that examinations given by defendants in 1972 for the positions of Supervising Human Resources Specialist, Senior Human Resources Specialist, and Human Resources Specialist were unconstitutional. 391 F. Supp. 1064 (S.D.N.Y.1975), aff'd, 528 F.2d 696 (2d Cir.), cert. denied, 429 U.S. 825, 97 S. Ct. 80, 50 L. Ed. 2d 88 (1976). Pursuant to that finding, defendants were enjoined from utilizing the results of the 1972 examinations in selecting persons for positions in the Human Resources Specialist (HRS) series, and were ordered, inter alia, "to develop lawful non-discriminatory selection procedures" for filling positions in the HRS series "validated in accordance with the EEOC Guidelines on Employment Selection Procedures, 29 C.F.R. § 1607.1 (1970)," (Final Order and Judgment, May 23, 1975, P 5(b)). The defendants were directed to submit a detailed plan for the development of such selection procedures within thirty days of the final order and judgment, which was entered on May 23, 1975. The defendants did not submit such a plan, nor have they developed validated procedures for filling the positions.
In March, 1980, we authorized the defendants to conduct examinations for the HRS series which had not been validated according to the EEOC Guidelines, provided that the use of eligible lists from the examinations for appointment purposes would be subject to court approval. Plaintiffs consented to the utilization of the resulting eligibility lists provided that, pending determination of this motion for further relief, no adverse action would be taken with respect to class members who failed the examination, class members who passed the examination but whom defendants do not intend to appoint, and class members who did not take the recent examination. According to defendants, the 1980 examinations had no adverse impact on the plaintiff class. Plaintiffs do not contest this assertion.
Plaintiffs now move for further relief and to amend their complaints. With respect to the motion for further relief, the defendants have not objected to much of the relief requested in the motion (including the grant of retroactive seniority) except 1) the administration of a second set of promotional examinations and 2) permission for class members to retain their positions or be granted promotions despite their ranking from the recent set of examinations unless the defendants can demonstrate that they have performed unsatisfactorily in their provisional positions.
Plaintiffs contend that a second set of promotional examinations is necessary to ensure that they are made as nearly whole as is currently possible. They emphasize that, due to the illegal examination in 1972 and defendants' failure to comply with the injunctive portions of our 1975 order, some class members have served in provisional status for many years and others have even been promoted provisionally. The recent examinations afford only partial relief, plaintiffs contend, because they still may be deprived of opportunities to obtain permanent appointment to the positions in which they are in fact working. For example, as a result of the illegality of the 1972 examination, a class member performing satisfactorily for several years in provisional appointments to Senior and Supervising HRS positions may never have obtained a permanent entry level appointment as an HRS. Such a person was not permitted to take the 1980 examination for Senior or Supervising HRS, but instead had to take the examination for the entry-level HRS position. Plaintiffs concede that there is no way to reconstruct with precision the positions that each individual class member might have held if the 1972 examination had met constitutional standards, but argue that it is reasonable to assume that, in the absence of discrimination, class members would have attained permanent appointments to the job titles in which they have been serving provisionally.
Defendants respond that the recent non-discriminatory examinations together with the grant of retroactive seniority place the plaintiffs in substantially the same position they would have held had the 1972 examinations not been discriminatory. Defendants argue that, in light of the City of New York's intervening fiscal crisis, there is no basis for assuming that, had the earlier examinations been valid, new examinations would have been administered since then to permit promotion to higher permanent appointments. Defendants note that other City agencies, including the Police Department, the Transit Police Department, and the Department of Correction, have been without promotional examinations since 1973.
We find the defendants' position on the issue of the administration of a second set of promotional examinations persuasive. While it is unfortunate that defendants' employees are performing jobs for which they have been unable to obtain permanent status because of a lack of opportunity to take an applicable promotional examination, plaintiffs have failed to demonstrate that this circumstance is causally related to the unconstitutionality of the 1972 examinations. Had the 1972 tests not been discriminatory, plaintiffs would have taken the examination and been selected or rejected only for the position for which they were then eligible. At the present time, those who passed would have a permanent appointment to that position as well as whatever seniority they would have accrued in the interim. This is the same position in which the plaintiffs stand as the result of whatever selection procedure is now instituted, together with the grant of retroactive seniority. Plaintiffs, in short, have not demonstrated that promotional examinations for the HRS series would have been given since 1972 but for the invalidation of the 1972 examinations.
Plaintiffs next contend that they ought not be adversely affected by the recent set of examinations because those examinations have not been validated as required by our 1975 order. According to the plaintiffs, they believed throughout their negotiations with the defendants that the 1980 examinations would give great emphasis to work experience and would in all probability result in the permanent appointment of virtually all class members to the job titles they then held provisionally. Plaintiffs' motion for further relief thus sought judicial review of the status, plaintiffs believed, of the very few class members who may not be permanently appointed pursuant to the 1980 examinations. However, the results of the examinations have not matched their expectations. Specifically, while all class members who took the 1980 open competitive examination for entry-level HRS passed and were placed on the eligible list, defendants have appointed only 510 out of the approximately 1,600 candidates who took and passed the examination and propose to make 13 additional appointments according to the ranking from the examination, which would result in the termination of 13 class members who fall below the ranking on the eligible list, and who have been serving provisionally.
Plaintiffs argue that, whether the recent examinations have a disparate impact or not, it is improper to terminate class members on the basis of an examination which has not been validated as job related as required by our 1975 order. According to plaintiffs, they are presumptively entitled to individual relief which will make them whole and restore them to the positions they would have held but for the defendants' discrimination. Conceding that, in the confused posture of this case, they are no longer certain what the appropriate relief would be, plaintiffs propose the following alternatives: 1) permanent appointment for provisional employees who took the 1972 tests to their provisional positions with retroactive seniority, 2) preference for provisional employees who took and passed the recent examinations in appointment to permanent positions, without regard to rank on current eligibility lists, 3) an opportunity for a judicial hearing for class members who would be terminated or denied promotions on the basis of the recent examinations with the burden on the defendants to demonstrate their unfitness for permanent appointment to the position in question.
Defendants oppose any supplemental or corrective relief beyond review of alleged misgrading of examination papers. Defendants argue that, since the recent examinations had no cognizable disparate impact, any presumption that a class member would have passed the 1972 examinations had they not been discriminatory must fall if the class member failed the recent examination. Absent a discriminatory impact, defendants contend, there is no basis for providing class members relief from the recent examinations. Furthermore, defendants emphasize that the contention that the quality of class members' work as provisional employees is the appropriate selection criterion applies equally to non-class members and is, in effect, an argument against the entire New York Civil Service hiring system, which requires competitive examinations to determine merit and fitness.
We agree with plaintiffs that the recent set of examinations may not be allowed to affect the plaintiffs adversely. As already noted, our 1975 order required defendants to develop lawful selection procedures for the HRS series and to validate those procedures according to the EEOC Guidelines on Employment Selection Procedures, 29 C.F.R. § 1607.1 (1970). While the Court of Appeals has since ruled that the EEOC Guidelines may not be the appropriate standard for determining the validity of selection procedures, see Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission of the City of New York, 630 F.2d 79, 110 (2d Cir. 1980), that Court made no suggestion that it is inappropriate, as part of the remedy for unconstitutional employment discrimination, to require that new selection procedures be developed that are both non-discriminatory and validated as job related. In any event, defendants here have never moved for relief from that portion of our 1975 order requiring them to validate new selection procedures. Accordingly, as a result of our 1975 order, plaintiffs are entitled to have the decision whether they will receive permanent appointments to the positions for which they took examinations in 1972 determined by procedures which are both non-discriminatory and validated as job related. Defendants were ordered to submit a plan for the development of such selection procedures thirty days after our order. They failed to do so, and have failed to develop a validated selection procedure.
Defendants' contention that the recent examinations should be determinative because they have not been shown to have had a cognizable disparate impact misses the point of the determination now at issue. Defendants seek to treat the recent examinations as a substitute for the 1972 examinations, so that their lack of disparate impact would serve to remedy the constitutional flaw of the 1972 examinations. Whatever constitutional status the recent examinations might have enjoyed had they been administered in 1972, however, the present issue is whether they accord plaintiffs' remedial rights under the 1975 order. Since defendants do not assert that the recent examinations have been validated, the examinations do not fully reflect the plaintiffs' rights under the 1975 order and therefore they may not be utilized to the detriment of individual members of the plaintiff class. While in the first instance plaintiffs may have been entitled merely to a selection procedure which did not discriminate against them, in this litigation plaintiffs won not only the right to non-discriminatory selection procedures, but also the right to selection procedures which have been validated as job related.
Moreover, we cannot ignore the inequities which would result if the defendants' selection procedures were to be approved. Throughout their service as provisional employees, plaintiffs have suffered the uncertainty and insecurity of not having a permanent Civil Service appointment. See, e.g., Russell v. Hodges, 470 F.2d 212 (2d Cir. 1972); City of Binghamton v. Binghamton Civil Service Forum, 63 App.Div.2d 790, 404 N.Y.S.2d 918 (1978). Many members of the plaintiff class have given years of apparently satisfactory service in this capacity. Since their victory in this litigation, plaintiffs were at least entitled to rely on the provisions of our 1975 order that they would not be terminated or denied promotion except by procedures actually related to their job knowledge or performance. It is now over five years since our 1975 order was entered. Presumably, many class members have made career plans in reliance on the terms of our 1975 order. In these circumstances, it would be manifestly unfair to defeat plaintiffs' justifiable expectations, engendered by this very litigation, that satisfactory performance of their job functions would result in permanent Civil Service appointments. Defendants' proposal to utilize the recent examinations as a determinative selection procedure would thwart these reasonable expectations. While apparently enjoying the virtue of being non-discriminatory (the right to which plaintiffs were originally entitled in 1972), the lack of validation of the recent examinations may leave plaintiffs to the vagaries of randomness rather ...