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December 1, 1982

EDWARD L. KIRKLAND, JOSEPH P. BATES, SR., ARTHUR E. SUGGS, each individually and on behalf of all others similarly situated, Plaintiffs,
THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, THOMAS A. COUGHLIN, III, individually and in his capacity as Commissioner of the New York State Department of Correctional Services, THE NEW YORK STATE CIVIL SERVICE COMMISSION, JOSEPH VALENTI, individually and in his capacity as President of the New York State Civil Service Commission and Civil Service Commissioner, JOSEPHINE GAMBINO and JAMES McFARLAND, each individually and in his/her capacity as Civil Service Commissioner, Defendants

The opinion of the court was delivered by: GRIESA


 This is a motion under Fed. R. Civ. P. 23(e) to approve a class action settlement. The motion is granted.

 The Action

 The suit is brought on behalf of black and hispanic Correction Sergeants in the New York State Department of Correctional Services, challenging the legality of Promotional Examination No. 36-808, given for the position of Correction Lieutenant (G-20) on October 3, 1981. The claim is that the test and the resulting eligibility list are racially discriminatory in violation of the Fourteenth Amendment of the United States Constitution, 42 U.S.C. §§ 1981 and 1983, and Titles VI and VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) et seq. The complaint seeks declaratory and injunctive relief, as well as damages in the form of back pay for alleged past discrimination.

 Defendants are officials in the New York Department of Correctional Services and the New York Civil Service Commission. They have answered denying any unlawful discrimination, and asserting the validity of the test and the resulting eligibility list.

 The action was commenced on January 15, 1982. After discovery, followed by extensive negotiations, a settlement agreement was entered into in August 1982. It is this agreement which is the subject of the present application.

 Notice of the proposed settlement was properly given. A hearing was scheduled for September 29, 1982. By the time of that hearing no objections were received from any members of the class. However, over 200 written objections were received from non-class members -- i.e., white correctional officers. In addition, two groups of white correctional officers, each represented by counsel, moved to formally intervene in the action. On September 29, 1982 the court granted the motions to intervene, specifying that the interventions would be solely for the purpose of objecting to the proposed settlement.

 Additional hearings were held on October 4 and October 14, 1982. Briefs have been received from both the plaintiffs and the original defendants in support of the proposed settlement. The intervenors have submitted briefs in opposition.

 On November 9, 1982 the court entered an order approving the settlement. The order stated the court's conclusion that the settlement is fair, reasonable and lawful in all respects, and that the objections to the settlement, including the claims of constitutional defects, are without merit. The order stated that an appropriate opinion would be issued in due course.

 Factual Background

 The present case must be considered in the context of a prior action brought by Kirkland et al., in which they challenged the promotional examination for the position of Correction Sergeant. The action was commenced in 1973 in this court, and was tried before Judge Lasker, who found that the examination was racially discriminatory. Kirkland v. New York State Department of Correctional Services, 374 F. Supp. 1361 (S.D.N.Y. 1974). Judge Lasker directed that the State institute a new selection procedure for Correction Sergeant, and in addition imposed a permanent hiring ratio for minorities. Pending the institution of this procedure, he required an interim ratio.

 On appeal, the Second Circuit affirmed the finding of the unconstitutionality of the examination, but reversed the imposition of a permanent minority ratio. It should be noted, however, that the Court of Appeals upheld the interim ratio.

"The court directed that at least one out of four persons so promoted must be members of the plaintiff class. Since this portion of the decree is interim in nature, does not mandate the making of any promotions, does not disregard an existing civil service eligibility list, and since its benefits are limited to the members of plaintiff's class, we affirm it as not being an abuse of the District Court's discretion." Kirkland v. New York State Department of Correctional Services, 520 F.2d 420, 429-30 (2d Cir. 1975).

 The Court of Appeals remanded for the development of a nondiscriminatory testing procedure without the use of a permanent ratio.

 Following the remand, the State developed a new testing procedure consisting of two parts: first, a written test primarily designed to assess verbal skills; second, performance ratings made by the applicant's departmental superiors. The written test was administered. The resulting scores of the minority applicants were, on the average, somewhat lower than the scores of the white applicants, based on a "criterion-validation study." As a consequence, the Corrections Department re-scored the tests by adding 250 points for every minority applicant.

 In further proceedings before Judge Lasker, a group of white correctional officers was permitted to intervene to challenge the 250-point adjustment. Judge Lasker granted summary judgment in favor of the original parties to the action and against the intervenors. The Court of Appeals affirmed. Kirkland v. New York State Department of Correctional Services, 628 F.2d 796 (2d Cir.), cert. denied, 450 U.S. 980, 101 S. Ct. 1515, 67 L. Ed. 2d 815 (1981). The Court held that the 250-point adjustment was not illegal as creating a "quota" since it did not "require that a minimum number of sergeant appointments be given to any members of a minority group." 628 F.2d at 798.

 In the previous Court of Appeals opinion, there was a dictum criticizing what was referred to as "bumping" from a preferred position on an eligibility list because of racial considerations. 520 F.2d at 429. In the second Court of Appeals opinion, the Court explained that this earlier discussion related solely to strict racial quotas. The Court stated that the steps taken by the Department of Corrections in connection with the revised selection procedure

". . . do not constitute de jure or de facto quotas. This program does not bump white candidates because of their race but rather reranks their predicted performance as estimated by the combined test score and job performance ratings." 628 F.2d at 798.

 Finally, the Court gave its overall approval to all phases of relief as finally arrived at after the remand, "including quotas in interim appointments." Id. The promotional examination for Correction Lieutenant, which is at issue in the present case, was administered in October 1981. The State relied strictly on a written test, and did not establish any procedure for performance ratings, as had been done in the reformed selection for sergeants. The results of the test for minority and non-minority applicants were as follows: Minority Non-Minority Took Test 169 (22.9%) 570 Passed Test 148 (22.0%) 527 Plaintiffs in the present case do not contend that the examination involves racial discrimination on the basis of pass rate. The problem raised by plaintiffs relates to the rank-ordering based upon the relative scores of the applicants who passed the test. Plaintiffs have provided the following list, which shows the racial makeup of various groups on the eligibility list. Position No. % Min. No. No. Non-Min. Min. 1-107 5.6 6 101 108-229 9.8 12 110 230-298 16.0 11 58 299-416 19.5 23 95 417-525 29.4 32 77 526-619 33.0 31 63 620-672 47.2 25 28

 Appointments from the eligibility list commenced in early January 1982. As of July 28, 1982, 202 non-minority applicants had been promoted to Lieutenant from the list, and only 20 minority applicants (9.0%).

 Plaintiffs contend that the total 222 applicants promoted as of July 28, 1982 is a statistically significant sample to indicate whether or not the rank-order list improperly discriminates on a racial basis. Plaintiffs' expert calculates the discrepancy between minority and non-minority appointments as of July 28, 1982 to be statistically significant to level of 5.86 standard deviations (exceeding the.001 level of confidence). In Castaneda v. Partida, 430 U.S. 482, 496, n.17, 51 L. Ed. 2d 498, 97 S. Ct. 1272, (1977), the Supreme Court commented on the use of statistics in determining whether a plaintiff, complaining about racial discrimination under Title VII, has made out a prima facie case. The Court stated that, "if the difference between the expected value [from a random selection] and the observed number is greater than two or three standard deviations," a prima facie case is established.

 The same trend continued after July 28, 1982. Counsel for intervenors represented that, as of September 29, 1982, 225 appointments to Lieutenant had been made, of which 21 (about 9%) were minority applicants.

 The Settlement Agreement

 The settlement agreement contains two basic elements: first, measures to adjust the present eligibility list to correct for disproportionate racial impact; second, provision for the development of new selection procedures for promotion to Correction Lieutenant and Correction ...

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