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Bushey v. New York State Civil Service Commission

April 16, 1984

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 R. ROGAN, MILES BARNES, DONALD E. CLARK AND GERALD SWEENEY, EACH INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
v.
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-APPELLANTS, AND GERALD A. WELLS, WILBUR I. WRIGHT, JOSEPH P. BATES, THOMAS D. HASKELL, AND PERCY JONES, INTERVENORS-APPELLANTS



Appeal from an order and judgment of the United States District Court for the Northern District of New York, Miner, Judge, denying appellants' motions for summary judgment, granting appellees' motion for summary judgment and enjoining defendants-appellants from making appointments to the position of Correction Captain from an eligibility list based on examination scores adjusted to eliminate perceived adverse racial impact against minority candidates of a written civil service examination.

Timbers, Meskill and Pierce, Circuit Judges.

Author: Pierce

PIERCE, Circuit Judge:

Defendants-Appellants ("Defendants" or "the State") and Intervenors-Appellants ("Intervenors") appeal from an order and judgment of the United States District Court for the Northern District of New York, Roger J. Miner, Judge, filed October 4, 1983, denying Defendants' and Intervenors' motions for summary judgment and granting Plaintiffs-Appellees' ("Plaintiffs") motion for summary judgment. The district judge also enjoined Defendants from making appointments to the position of Correction Captain ("Captain") of the New York State Department of Correctional Services ("Correctional Services") from an eligibility list that was based on certain examination scores adjusted to eliminate what Defendants perceived to be the adverse racial impact against minority candidates of a written examination administered by the New York State Civil Service Commission ("Civil Service"). The district judge agreed with Plaintiffs, who are nonminority candidates for the position of Captain, that the State's adjustment of the minority candidates' raw test scores discriminated against nonminority candidates in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 to 2000e-17 (1976 & Supp. V 1981) ("Title VII").

For the reasons set forth below, we reverse the order and judgment of the district court and we remand for further proceedings consistent with this opinion.

I. BACKGROUND

This action represents the most recent chapter in the controversial history of promotional examinations administered by the Civil Service for supervisory titles in the State's Correctional Services. The instant dispute began on January 30, 1982, when the Civil Service and the Correctional Services conducted Promotional Examination No. 37-526 for the position of Correction Captain. At the time the examination was given, no minority officers held permanent appointments as Captains in the State's prisons. After administering the test, the Civil Service tabulated each candidate's right and wrong answers to arrive at the candidates' raw scores. The tabulation results indicated that nonminority candidates had passed the test at about twice the rate as minority candidates,*fn1 as follows:

Passing Passing

Test Takers Candidates Rate

cy

Nonminority 243 119 49%

Min ority 32 8 25%

In view of the "four-fifths" rule of the Equal Employment Opportunity Commission ("EEOC") Uniform Guidelines on Employee Selection, 29 C.F.R. § 1607.4(D) ("Guidelines"),*fn2 the State determined that the Captains' examination had an adverse racial impact on minority candidates because the passing rate of minority candidates was approximately fifty percent lower than the passing rate of nonminority candidates. Taking into account other factors that it felt reinforced its conclusion of adverse impact,*fn3 the State adjusted both the minority and nonminority candidates' scores by converting them to separate frequency distributions and then equating or normalizing them with the respective means. The effect was to increase to fifty percent the percentage of minorities who passed the test. From the State's perspective, this adjustment served to correct the adverse racial impact of the test by equalizing the passing rate of minority and nonminority candidates. In practical terms, the adjustment added eight minority candidates to the eligibility list without removing any of the 119 nonminorities from the list.

By acting to eliminate the perceived adverse impact of the examination on minorities, the State sought anticipatorily to avoid litigation it assumed minority candidates would bring challenging reliance on the test to promote candidates to the position of Captain. Such litigation had resulted from the use of past promotional examinations with respect to Correction Sergeants in 1972, Kirkland v. New York State Department of Correctional Services, 374 F. Supp. 1361 (S.D.N.Y. 1974), aff'd in part and rev'd in part, 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 U.S. 823, 50 L. Ed. 2d 84, 97 S. Ct. 73 (1976), on remand, 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) ("Kirkland Sergeants"), and Correction Lieutenants in 1981, ...


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