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CUESTA v. NEW YORK OFFICE OF COURT ADMIN.

September 16, 1983

HERMINO CUESTA, JOANN BARBAGALLO, CARLOS CHALUISAN, JEANNETTE DAVILLA, CHRISTOPHER GARCIA, EARL HALL, JAMES LEE, SAMUEL LEON, KATHERINE OLIVER, VICTOR ORTIZ, PAUL E. PARKER, JOSEP RIFFAS, HENRY SELTZER, JEFF SKOPP, SHARON SMALLS and STEPHEN WALTERS, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
THE STATE OF NEW YORK OFFICE OF COURT ADMINISTRATION, HONORABLE HERBERT B. EVANS, in his capacity as State Administrative Judge of the New York State Office of Court Administration, THE NEW YORK STATE CIVIL SERVICE COMMISSION, and JOSEPH A. F. VALENTI, in his capacity as President of the New York State Civil Service Commission and Civil Service Commission, Defendants



The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

 PIERRE N. LEVAL, U.S.D.J.

 Plaintiffs are provisional New York State court officers. They were appointed by virtue of their performance on a 1977 competitive examination, but received only provisional appointments because that examination was challenged for racial discrimination in Underwood v. Office of Court Administration, 78 Civ. 4382 (CSH). Pursuant to a class action consent judgment in that case, the State developed and administered a new examination in 1982. A new eligibles list has been established based on the results of that exam, under which new permanent appointments are being made to positions provisionally held by plaintiffs.

 Plaintiffs, who include whites, blacks and Hispanics, assert that the new 1982 test is invalid under 42 U.S.C. §§ 2000e et seq. (Title VII) because it had a disparate impact on minorities and is insufficiently job-related. They also assert claims under New York law. They seek certification of a plaintiff class consisting generally of provisionals who are not likely to receive permanent appointment under the Underwood exam. They now move for a preliminary injunction against dismissal of any of the provisionals and against the permanent appointment of candidates from the new eligibles list. A hearing has been conducted by the submission of depositions and affidavits. All parties have advised the court that the record is complete for decision of the motion for preliminary injunction.

 In this Circuit preliminary injunctive relief requires a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2 Cir. 1979). Plaintiffs have not shown that they will suffer irreparable harm to meet the first part of the test. Even if they had, they do not meet either branch on the second part of the test. They fail to show a likelihood of success on the merits, and while there may be a fair ground for litigation, the balance of hardships is not decidedly in their favor.

 I. Irreparable Harm

 Plaintiffs allege that they will suffer irreparable injury because (1) they will lose their jobs, and (2) newly hired permanent court officers will block the opportunities for appointment in the event plaintiffs prevail.

 While I am sympathetic to plaintiffs' situation, the temporary loss of income and position is not necessarily an "irreparable injury," as that standard has been interpreted. Sampson v. Murray, 415 U.S. 61, 88-92 & n.68, 94 S. Ct. 937, 951-53, 39 L. Ed. 2d 166 (1974); Holt v. Continental Group, Inc., 708 F.2d 87, 90-91 (2 Cir. 1983). Dismissal may be an irreparable injury in special circumstances including, for example, cases of retaliatory dismissal. E.g., Sheehan v. Purolator Courier Corp., 676 F.2d 877, 879-80 n.3 (2 Cir. 1982) (remanding for consideration of, inter alia, plaintiff's claim that her employer prevented her from finding other employment); Aguilar v. Baine Service Systems, Inc., 538 F. Supp. 581, 584 (S.D.N.Y. 1982) (plaintiffs faced "eviction, cut-off of their utilities and the inability to provide for their children"). Plaintiffs have submitted only one affidavit attesting to harm caused a particular individual by the loss of her job, and it is insufficient to warrant preliminary relief. Certainly plaintiffs have made no showing of irreparable harm affecting the class across the board.

 Plaintiffs also allege that they will suffer irreparable injury because the appointment of permanent court officers will as a practical matter cut off the possibility of reinstatement should plaintiffs prevail. But if the new eligibles list developed under the Underwood decree is held invalid, the court's remedial powers can repair any damage done by the current appointments. This case is fundamentally different from those where use of a challenged eligibles list would intolerably prolong and cement the exclusion of minorities. See Chance v. Board of Examiners, 330 F. Supp. 203, 224 (S.D.N.Y. 1971), affirmed, 458 F.2d 1167, 1178 (2 Cir. 1972); Firefighters Institute v. City of St. Louis, 616 F.2d 350, 362 & n.21 (8 Cir. 1980).

 II. Likelihood of success

 Plaintiffs' claims on the merits cannot be characterized as likely to succeed.

 First, an injunction to maintain the status quo would grant relief beyond what can be expected when the litigation is completed. Even if plaintiffs succeed in proving the test invalid, they do not even claim a right to remain in their jobs. The best they can hope for is that a new selection procedure will be devised on which they can compete yet again for a permanent appointment. *fn1"

 Second, a preliminary examination of plaintiffs' attack on the merits of the 1982 examination suggests that their success is at best uncertain. Leaving aside whether the white plaintiffs have any claim at all, the plaintiffs seek to prove that the examination discriminated on the basis of race. Under the test first set forth in Griggs v. Duke Power, 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), they must show that the test had an adverse impact on minority candidates. This they may be able to do. *fn2" The burden then shifts to defendants to show that the test was job-related. A preliminary review of the evidence and argumentation submitted suggests that on this score defendants make a strong showing.

 The 1982 competitive examinations were developed by an employment testing concern, under the supervision of a Special Master who is a leading authority on the subject. The design began with a thorough analysis, which plaintiffs do not impugn, of the court officer's job. Defendants assert that in two legally adequate ways the test accurately measures for the job. First, they argue that it is "content valid," or that it measures the actual knowledges, skills or abilities required for the job. See Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 (Guidelines) § 14(C); Guardians Association of New York City v. Civil Service, 630 F.2d 79, 92 (2 Cir. 1980). Second, they argue that it is ...


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