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October 3, 1983

James BUSHEY, Roger D. Bell, Robert W. Ferber, William J. Norton, Robert J. Seitz, George Bartlett, Charles Page, Wayne Wilhelm, Wayne L. Strack, Robert Fucci, Gary H. Filion, Edward D. Rogan, Miles Barnes, Donald E. Clark and Gerald Sweeney, each individually and on behalf of all others similarly situated, Plaintiffs,
The NEW YORK STATE CIVIL SERVICE COMMISSION, Joseph Valenti, in his capacity as President of the New York State Civil Service Commission and Civil Service Commissioner, Josephine Gambino and James McFarland, in their capacity as Civil Service Commissioners, The New York State Department of Correctional Services, and Thomas A. Coughlin, III, in his capacity as Commissioner of the New York State Department of Correctional Services, Defendants, Gerald A. Wells, Wilbur I. Wright, Joseph P. Bates, Thomas D. Haskell and Percy Jones, Defendants-Intervenors

The opinion of the court was delivered by: MINER


 MINER, District Judge.


 This rather novel reverse discrimination action arises out of the alleged racially discriminatory treatment of non-minority plaintiffs in the context of their civil service employment with the State of New York. The action is brought pursuant to 42 U.S.C. §§ 1981 and 1983, and Titles VI *fn1" and VII *fn2" of the Civil Rights Act of 1964. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. Before this Court are motions by all parties *fn3" for summary judgment pursuant to Fed.R.Civ.P. 56(a) & (b).


 The relative simplicity of the facts surrounding this controversy belies the rather subtle and intricate legal issues which are raised. Plaintiffs, fifteen white employees of the Department of Correctional Services ("DOCS"), *fn4" commenced this action on November 8, 1982 seeking to enjoin *fn5" defendants from making promotions on the basis of a controversial "eligible list." This list was derived from the results of Civil Service Examination No. 37-526 ("examination"). The examination, developed, administered and scored by defendant New York State Civil Service Commission ("CSC"), was taken by plaintiffs in January of 1982 in order to compete for promotion to the rank of Correction Captain. The present controversy centers upon the actual grading of the examination by defendant CSC. Essentially, plaintiffs claim that minority candidates' test scores improperly were supplemented with a "racial bonus" in order to compensate for an alleged adverse racial impact contained in the written test. A full understanding of the scoring methodology employed, and the claimed need for its use here, requires a brief survey of past litigation involving Corrections Department personnel.

 In 1972, CSC, upon request of DOCS, prepared an examination to be taken by Corrections Department Officers in order to qualify for promotion to the rank of Sergeant. The examination was administered on October 14, 1972. Alleging that the test improperly discriminated against them on the basis of race, black and Hispanic Correction Officers challenged the test's constitutional validity. Kirkland v. New York State Department of Correctional Services, 374 F. Supp. 1361 (S.D.N.Y.1974), aff'd in part, rev'd in part, 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S. Ct. 73, 50 L. Ed. 2d 84 (1976) (" Kirkland Sergeants "). Judge Lasker determined that the Sergeants exam did indeed discriminate against minorities and ordered DOCS to develop new selection procedures to be validated by means of an empirical, criterion-related study. Between 1974 and 1979, DOCS attempted to comply with Judge Lasker's order and put forth its proposal for new selection procedures. The new proposal, which called for the addition of 250 points to the test scores of minority candidates, *fn6" was held by Judge Lasker to have satisfied the requirements established by the Second Circuit in their affirmance of his initial order. Kirkland v. New York State Department of Correctional Services, 482 F. Supp. 1179 (S.D.N.Y.), aff'd, 628 F.2d 796 (2d Cir.1980), cert. denied, 450 U.S. 980, 101 S. Ct. 1515, 67 L. Ed. 2d 815 (1981).

 In January of 1982, minority Correction Sergeants lodged a further challenge to DOCS' procedures, claiming that the promotional examination for the position of Correction Lieutenant was racially discriminatory against blacks and Hispanics. On August 20, 1982, the parties to the suit submitted proposals of settlement to Judge Griesa of the Southern District of New York. On November 9, 1982, Judge Griesa approved the proposed settlement. Kirkland v. New York State Department of Correctional Services, 552 F. Supp. 667 (S.D.N.Y.1982), aff'd, 711 F.2d 1117 (2d Cir.1983). The settlement agreement provided measures both to eradicate all disproportionate racial impact resulting from administration of the Lieutenant's examination as well as provisions for the development and administration of new selection procedures for promotion to Correction Lieutenant and Correction Captain. Holding that "voluntary compliance is a preferred means of achieving Title VII's goal of eliminating employment discrimination," the Second Circuit affirmed Judge Griesa's approval of the settlement agreement. Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1128 (2d Cir.1983) (" Kirkland Lieutenants ").

 Against this background, and apparently in an effort to forestall a third Kirkland -type suit with respect to the Captains examination, CSC took it upon itself to adjust minority candidates' scores upward, thereby eliminating what it perceived to be the adverse racial impact of the Captains test. It is this anticipatory defensive maneuver which serves as the basis for the instant action.

 The Civil Service Framework

 In New York, the State Civil Service Commission is charged with administration of the state's civil service system. N.Y.Civ. Serv.Law § 6 (McKinney 1983). The procedures regarding civil service examinations and appointments are greatly detailed and are set forth in the Civil Service Law. The overriding theme of the civil service system expresses the fundamental purpose that appointments be based on merit. E.g., N.Y. Const. art. V, § 6 ("Appointments and promotions in the civil service of the state and all of the civil divisions thereof . . . shall be made according to merit and fitness to be ascertained, so far as practicable, by examination which, as far as practicable, shall be competitive . . . ."); N.Y.Civ.Serv.Law § 52(2) (McKinney 1983) ("Promotion shall be based on merit and fitness as determined by examination . . . ."); Matter of Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65 (1938) ("The fundamental purpose running through our civil service provisions is that, so far as practicable, positions in the State service shall be filled by competitive examinations"). Section 95 of the Civil Service Law provides that:

It shall be the duty of all officers of the state of New York . . . to conform to and comply with and to aid in all proper ways in carrying into effect the provisions of this chapter, and the rules and regulations prescribed thereunder. No officer or officers having the power of appointment or employment shall appoint or select any person for appointment, employment, promotion or reinstatement except in accordance with the provisions of this chapter and the rules and regulations established thereunder.

 N.Y.Civ.Serv.Law § 95 (McKinney 1983).

 With respect to examinations, § 66.2 of the Rules and Regulations of the Department of Civil Service provides that "no candidate shall be passed in an examination or have his name entered upon an eligible list who fails to attain a passing mark in the examination as a whole . . . ." While the Civil Service Commission is thus constrained to act within the confines of its legislative mandate, a fragile balance is brought to bear when that mandate is alleged to interfere with citizens' constitutional rights. More specifically, if strict compliance with the mandated merit procedures were to lead to illegal racial discrimination under, for example, a Title VII analysis, then the state law must yield to this overriding federal constitutional consideration. See Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission, 630 F.2d 79, 104-05 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S. Ct. 3083, 69 L. Ed. 2d 954 (1981). In this light, a consideration of the propriety of defendants' remedial actions will be undertaken.

 The Examination

 Examination No. 37-526 was administered on January 30, 1982. After the candidates' raw scores had been compiled, CSC reviewed the test scores to determine whether the examination had an adverse impact upon racial or ethnic minorities. Based on the raw scores, 119 out of 243 (forty-nine percent) non-minority candidates passed the examination. Only eight out of thirty-two (twenty-five percent) minority candidates achieved a passing score. Applying the four-fifths rule of the EEOC Uniform Guidelines on Employee Selection, 29 C.F.R. § 1607.4[D], *fn7" CSC concluded that there was in fact an adverse impact upon minority candidates. Accordingly, in order to effect prospective compliance with Title VII, CSC determined to adjust minority scores upward. The statistical methodology employed by CSC to effect the adjustment was that of "separate frequency distribution." Essentially, the process entails preparing separate distributions of minority candidates in score order and nonminority candidates in score order, and equating the scores of each group by normalizing the separate frequency distribution. The result of the adjustment was to increase the number of minorities who passed the exam to sixteen out of thirty-two (fifty percent) compared with the raw score pass rate of eight out of thirty-two (twenty-five percent). *fn8"

 Plaintiffs contend that an adjustment made solely on the basis of race violated their constitutional rights by affording minorities a "racial bonus." Defendants, on the other hand, claim that the use of the separate frequency distribution was necessary in order to comply with Title VII. In other words, to the extent defendants perceived adverse racial impact, they now claim to be entitled to a prospective compliance defense under Title VII.


 On motions for summary judgment, it is well established that the court's function "is not to resolve issues of fact but to determine whether any material factual issues are raised after resolving all questionable inferences in favor of the party against whom the judgment is sought. Only if no material factual issues exist may summary judgment be granted." United States v. Matheson, 532 F.2d 809, 813 (2d Cir.), cert. denied, 429 U.S. 823, 97 S. Ct. 75, 50 L. Ed. 2d 85 (1976); see also Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444-45 (2d Cir.1980); Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319 (2d Cir.1975). Although the moving party bears the burden of clearly establishing the non-existence of any issue of fact that is material to a judgment in his favor, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 90 S. Ct. 1598, 1608-10, 26 L. Ed. 2d 142 (1970), the party opposing summary judgment must "set forth specific facts showing that there is a genuine issue for trial," in order to defeat the motion. Fed.R.Civ.P. 56(e). It is clear from the discussion which follows that defendants have failed to establish the existence of any disputed fact issues warranting the denial of plaintiffs' motion. More particularly, defendants have come forward with no evidence controverting that which has been proffered by plaintiffs with respect to the impropriety of defendants' actions.


 Essentially, plaintiffs' complaint raises alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e -- 2000e-17 (1981). *fn9" There is no question that Title VII prohibits racial discrimination against whites as well as non-whites. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 279-80, 96 S. Ct. 2574, 2578, 49 L. Ed. 2d 493 (1976); Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct. 849, 853, 28 L. Ed. 2d 158 (1971). "This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to 'cover white men and white women and all Americans,' . . . and create an 'obligation not to discriminate against whites . . . ." McDonald v. Santa Fe, 427 U.S. at 280, 96 S. Ct. at 2578 (quoting 110 Cong.Rec. at 2578 (remarks of Rep. Celler), 7218 (memorandum of Sen. Clark)). It is uncontroverted that defendants effected the score adjustment in favor of minorities solely on the basis of racial considerations. However commendable may have been defendants' motives, e.g., an effort to remedy what was perceived to be a discriminatory pattern against minorities, the guiding legal principles cannot be sidestepped. By its terms, Title VII expressly prohibits the actions undertaken by defendants:

It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race . . . or . . . to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color . . . or national origin.

 42 U.S.C. § 2000e-2(a).

 It cannot be, indeed is not, disputed that, by rescoring the examination, defendants succeeded in discriminating against plaintiffs. What is in dispute, and what presents a difficult and rather novel legal question is whether defendants' actions here may be justified in the name of prospective compliance with Title VII. At its most basic level, defendants' argument is this: Given the defendants' perception of the examination's adverse impact upon minorities and the inevitable prospect of a Kirkland -type suit, it was wholly proper to initiate unilateral, remedial action and thereby achieve Title VII compliance vis-a-vis minorities without incurring the expense and disruption of an eventual minority suit. See Affidavit of John McKenna, para. 17. While defendants' intentions well may have been laudable, cf. Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S. Ct. 993, 998 n. 14, 67 L. Ed. 2d 59 (1981) (strong preference for voluntary settlement of Title VII cases); Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 1017, 39 L. Ed. 2d 147 (1974) (same); Kirkland Lieutenants, 711 F.2d at 1128 (same); Berkman v. City of New York, 705 F.2d 584, 597 (2d Cir.1983) (same); Stotts v. Memphis Fire Department, 679 F.2d 541, 555 (6th Cir.1982) (Title VII consent decree "may produce more favorable results than more sweeping judicially imposed orders that might risk opposition and resistance. . . . Consent decrees also reduce the cost of litigation, engender judicial economy, and vindicate an important societal interest in affirmative action"), cert. granted, 462 U.S. 1105, 103 S. Ct. 2451, 77 L. Ed. 2d 1331 (1983), defendants' actions were undertaken without proper attentiveness to settled Title VII law. See Kirkland Lieutenants, 711 F.2d at 1132 ("simply stated, the remedies provided by a Title VII settlement, especially those containing race-conscious relief, must be substantially related to the objective of eliminating the alleged instance of discrimination . . ., and must not unnecessarily trammel the interests of affected third parties"); see also United Steelworkers of America v. Weber, 443 U.S. 193, 208, 99 S. Ct. 2721, 2729, 61 L. Ed. 2d 480 (1979); Berkman v. City of New York, 705 F.2d 584, 597 (2d Cir.1983) (district court should normally approve settlement "unless it contains provisions that are unreasonable, unlawful, or against public policy"); United States v. City of Miami, 664 F.2d 435, 441 (5th Cir.1981) (en banc) (plurality opinion) (voluntary Title VII compromise affecting third parties should be approved only if the court is satisfied that the effect on third parties is neither unreasonable nor proscribed); Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.1981) (en banc) ("The first burden on the employer in a reverse discrimination suit is to produce some evidence that its affirmative action program was a response to a conspicuous racial imbalance in its work force and is remedial. Some indication that the employer has identified a racial imbalance in its work force is necessary to ensure that new forms of invidious discrimination are not approved in the guise of remedial affirmative action . . . ."); United States v. City of Alexandria, 614 F.2d 1358, 1366 (5th Cir.1980).

 Plaintiffs do not contend that prospective compliance with Title VII is not in fact a recognized defense to alleged Title VII violations. In Kirkland Lieutenants, the Second Circuit expressly noted that "neither Title VII nor the Constitution prohibits compromise agreements implementing race-conscious remedies which are agreed to prior to a judicial determination on the merits." 711 F.2d at 1130; see also United Steelworkers of America v. Weber, 443 U.S. 193, 207-08, 99 S. Ct. 2721, 2729, 61 L. Ed. 2d 480 (1979); Setser v. Novack Investment Co., 657 F.2d 962, 966-68 (8th Cir.1981) (en banc). But see Teal v. Connecticut, 645 F.2d 133, 139 (2d Cir.1981) ("Nor are we persuaded that construing Title VII to invalidate a selection process that includes an affirmative action component to insure nondisparate overall results will frustrate the general objective of achieving racial balance in the workforce. While Title VII may permit voluntary affirmative action in some instances, . . . the statute was never intended to be interpreted as an affirmative action device. Indeed, § 703(j) of Title VII expressly provides that Title VII shall not be 'interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist' in that respect in the employer's workforce" (emphasis by the court)), aff'd, 457 U.S. 440, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982). The issue presently before this Court narrows, therefore, to a determination of the parameters of the prospective compliance defense.

 A. Adverse Impact

 Relying on the Supreme Court decision in Weber, defendants take the position that their actions are insulated from Title VII liability since they only sought to prevent a discriminatory result and not to promote one. *fn10" Weber did in fact sanction affirmative action aimed at eliminating a pattern of discrimination, as long as the method chosen did not unnecessarily trammel the interests of non-minorities. 443 U.S. at 208, 99 S. Ct. at 2729. Defendants also seek to justify their action by arguing that it was necessary in order to avoid an inevitable Kirkland -type suit by minority Correction Lieutenants. *fn11" In the language of Judge Wisdom of the Fifth Circuit, defendants obviously felt themselves in the unenviable position of being upon a "high tightrope without a net beneath them." Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216, 230 (5th Cir.1977) (Wisdom, J., dissenting), rev'd sub nom. United Steelworkers of America v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979). Despite the unfortunate Hobson's choice with which defendants perceived themselves confronted, the Court is unable to conclude other than that defendants' chosen action has unlawfully discriminated against these plaintiffs. This conclusion is reached on the basis of a number of serious flaws both in defendants' approach to the problem and in the underlying assumptions upon which they have proceeded.

 The most fundamental problem with defendants' remedial action is to be found in the very premise upon which they proceeded, namely, an ostensibly conclusive finding of adverse impact. It is well established that when an affirmative action "settlement contains race-conscious relief affecting third parties, some well substantiated claim of racial discrimination against the plaintiff class is necessary 'to ensure that new forms of invidious discrimination are not approved in the guise of [race-conscious remedies].'" Kirkland Lieutenants, 711 F.2d at 1130 (quoting Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir. 1981) (en banc)); see also Fullilove v. Klutznick, 448 U.S. 448, 497-98, 100 S. Ct. 2758, 2784, 65 L. Ed. 2d 902 (1980) ("this Court has never approved race-conscious remedies absent judicial, administrative, or legislative findings of constitutional or statutory violations."); Regents of the University of California v. Bakke, 438 U.S. 265, 307, 98 S. Ct. 2733, 2757, 57 L. Ed. 2d 750 (1978) (same); Valentine v. Smith, 654 F.2d 503, 508-09 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S. Ct. 972, 71 L. Ed. 2d 111 (1981); Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission, 630 F.2d 79, 108 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S. Ct. 3083, 69 L. Ed. 2d 954 (1981); Vulcan Society of the New York City Fire ...

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