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SNEAD v. BURSTEIN

May 30, 1986

EDWARD SNEAD, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff,
v.
KAREN BURSTEIN, Individually and as the President of the Civil Service Commission of the State of New York, and as Commissioner of the New York State Department of Civil Service; the NEW YORK STATE CIVIL SERVICE COMMISSION and the NEW YORK STATE DEPARTMENT OF CIVIL SERVICE; Defendants



The opinion of the court was delivered by: MUNSON

HOWARD G. MUNSON, C.J.

MEMORANDUM-DECISION AND ORDER

 Plaintiff moved for a preliminary injunction restraining defendants from making any personnel changes based on the results of a New York Department of Civil Service examination that arguably had racially adverse impact. Because plaintiff failed to demonstrate irreparable harm if the preliminary injunction is not granted, the motion is denied.

 FACTS

 Plaintiff is a black male who since 1965 has been employed in various positions by the Department of Civil Service of the State of New York. In November 1979 plaintiff reached the permanent position of Senior Minority Group Personnel Specialist, salary grade 18, in the New York State Department of Civil Service. Plaintiff remained in that position until December 1982, when he received a provisional appointment pursuant to New York Civil Service Law § 65 n.1 [FOOTNOTE OMITTED] to the position of Associate Staffing Services Representative, salary grade 23. Plaintiff received the provisional appointment because at that time there was not an appropriate eligible list available for filling the vacancies in the grade 23 position.

 1 § 65 Provisional appointments

 1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination. Such non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.

 2. Time limitation on provisional appointments. No provisional appointment shall continue for a period in excess of nine months. The civil service department shall for competitive positions within its jurisdiction, and a municipal civil service commission shall for competitive positions within its jurisdiction, order a civil service examination for any position held by provisional appointment for a period of one month and such department or commission shall conduct a civil service examination, or see that such an examination is conducted, as soon as practicable thereafter, in order to prevent the provisional appointment from continuing for a period in excess of nine months.

 3. Termination of provisional appointments. A provisional appointment to any position shall be terminated within two months following the establishment of an appropriate eligible list for filling vacancies in such positions; provided, however, that where there are a large number of provisional appointees in any department or agency in the service of the state or any civil division thereof to be replaced by permanent appointees from a newly established eligible list, and the appointing officer or body deems that the termination of the employment of all such provisional appointees within two months following establishment of such list would disrupt or impair essential public services, evidence thereof may be presented to the civil service department or municipal commission having jurisdiction which, after due inquiry, and upon finding that it is in the best interest of the public service, may waive the provisions of this subdivision requiring the termination of the employment of provisional appointees within two months following the establishment of an appropriate eligible list and authorize the termination of the employment of various numbers of such provisional appointees at stated intervals prescribed by such commission; provided, however, that in no case shall the employment of such provisional appointee be continued longer than four months following the establishment of such eligible list.

 4. Successive provisional appointments. Successive provisional appointments shall not be made to the same position after the expiration of the authorized period of the original provisional appointment to such position; provided, however, that where an examination for a position or group of positions fails to produce a list adequate to fill all positions then held on a provisional basis, or where such list is exhausted immediately following its establishment, a new provisional appointment may be made to any such position remaining unfilled by permanent appointment, and such new provisional appointment may, in the discretion of the appointing authority, be given to a current or former provisional appointee in such position, except that a current or former provisional appointee who becomes eligible for permanent appointment to any such position shall, if he is then to be continued in or appointed to any such position be afforded permanent appointment to such position.

 N.Y. Civ. Serv. Law § 65 (McKinney 1983).

 Sometime during the summer of 1984, defendants began the process of preparing an examination, the results of which would be used to promulgate an eligible list to fill the position of Associate Staffing Services Representative. The resulting test, Examination No. 38-436, consisted of three parts: a series of short-answer essay questions, an oral test and a writing skills test.

 The written portion of the examination was given on March 9, 1985. A total of 111 candidates sat for the written examination. Of the 111 candidates, 80 were non-minority candidates and 31 were minority candidates (21 Blacks, 9 Hispanics, 1 Asian). Of the 80 non-minorities who sat for the examination, 11 achieved passing scores. Of the 31 minority candidates who sat for the examination, 1 achieved a passing score. Plaintiff did not achieve a passing score.

 The results of the examination represent a 13.75% passing rate for non-minorities and a 3.22% passing rate for minorities. The Equal Employment Opportunity Commission has established the following rule to ...


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