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FICKLING v. NEW YORK STATE DEP'T OF CIV. SERV.

December 20, 1995

JULIETTE FICKLING, LISA GOODWINE, PATRICIA FOWLER, SHERLEY KENYON, DHYALMA VASQUEZ, LENA COLEMAN-MINOR, SONYA E. GRAVES, and STEPHANIE KING, Plaintiffs, against THE NEW YORK STATE DEPARTMENT OF CIVIL SERVICE AND COUNTY OF WESTCHESTER, Defendants.


The opinion of the court was delivered by: PARKER

 BACKGROUND

 Plaintiffs Juliette Fickling, Lisa Goodwine, Patricia Fowler, Sherley Kenyon, Dhyalma Vasquez, Lena Coleman-Minor, Sonya E. Graves and Stephanie King (collectively "plaintiffs") brought this action for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the New York State Executive Law § 296, claiming that their termination as Welfare Eligibility Examiners as a result of their failing scores on competitive examinations was unlawful. Defendants are the New York State Department of Civil Service ("New York State DCS") and County of Westchester Department of Social Services ("Westchester County DSS") (collectively "defendants"). This Memorandum Opinion constitutes the findings of fact and conclusions of law of the Court after a bench trial held on September 21, 1995 comprising expert testimony and largely stipulated facts.

 Specifically, plaintiffs, seven African-American and one Hispanic former employees of defendant Westchester County DSS, allege that the use of an entry-level examination for the position of Eligibility Examiner with the Westchester County DSS had a racially disparate impact and failed to serve defendants' employment goal of fair competition among candidates for civil service positions. For the reasons set forth, the Court finds that the examination had a disparate impact and that it did not serve that goal because it lacked content validity. Cf. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659, 109 S. Ct. 2115, 2126, 104 L. Ed. 2d 733 (1989).

 FACTS

 As of March 1, 1991, plaintiffs were employed as provisional or temporary Social Welfare Eligibility Examiners by Westchester County DSS. In 1989 and 1990, each plaintiff took and failed, on more than one occasion, the New York State DCS examination for the position of Eligibility Examiner with the Westchester County DSS. The Westchester County Department of Personnel administered the Eligibility Examiner examinations to plaintiffs. The New York State DCS prepared, approved and graded the examinations.

 On February 4, 1991, Westchester County DSS informed each plaintiff that her employment was to be terminated effective March 15, 1991, and each plaintiff was terminated on March 15, 1991. Each plaintiff was terminated because her failing test score precluded her placement on the "eligible list" for the position of Eligibility Examiner. Each plaintiff, except Lena Coleman-Minor, had received satisfactory to excellent performance evaluations from at least one of her supervisors prior to her termination.

 Initially, access to the position of Eligibility Examiner is controlled by competitive examination. Applicants must attain a score of 70 on the examination to be placed on an Eligibility Examiner "eligible list." The "eligible list" is established on the basis of ratings received by the candidates in the competitive portions of the examination. N.Y.C.S.L. § 50(6). Appointment to the position of Eligibility Examiner is made by selecting one of the top three candidates on the "eligible list" who are willing to accept such appointment. N.Y.C.S.L § 61(1). Selection from the "eligible list" is then made on the basis of a candidate's qualifications, score on the written test, an oral interview and, following appointment, performance during a probationary period.

 Plaintiffs were employed as provisional or temporary Eligibility Examiners because Westchester County did not have an "eligible list" at the time. Provisional or temporary Eligibility Examiners may become permanent, however, only by passing the examination and being placed among the top three candidates willing to accept appointment on the "eligible list." N.Y.C.S.L. § 65(1).

 The examinations had a disparate impact on African-Americans and Hispanics in Westchester County and statewide. In Westchester County, the impact ratios (% minority passing% white passing) at the cutoff score on the 1989 examination ranged from 52.8% to 66.2% for African-Americans and between 43.1% and 56.6% for Hispanics. For the 1990 examination, the pass rate for African-Americans was between 40.4% and 50.8% of the white pass rate while Hispanics passed at between 25.5% and 34.9% of the white rate. Statewide, the impact ratio at the cutoff score on the 1989 examination ranged from 41.8% to 53.7% for African-Americans and between 36.6% and 44.6% for Hispanics and on the 1990 examination was between 38.2% and 43.1% for African-Americans and between 25.0% and 40.3% for Hispanics.

 The New York State DCS knew of the disparate impact of its Eligibility Examiner examinations since at least July of 1987. The New York State DCS did not notify the Westchester County DSS because it believed that the disparate impact was readily apparent from the results of the examinations.

 The examinations comprised 30 questions testing an understanding of concepts and practices of interviewing, and 30 questions testing the application of welfare-eligibility rules and regulations to hypothetical clients. The questions testing interviewing concepts and practices were presented in the form of vignettes describing typical work situations. Prior to taking the examination, plaintiffs were provided sample questions, instructions and other information concerning the procedural and substantive requirements of the examination.

 Defendants concede that the examinations at issue tested only 13 of the 49 KSAs (approximately 27%) identified by the summary report of the job analysis. Nevertheless, they argue that the examinations were reliable because test questions were continuously reviewed to ensure they were written at the appropriate level of difficulty for the position being tested. Post-test analyses were conducted after each the administration of the examination to determine how well test questions were performing. Based on the analysis and on appeals received from test-takers, test questions were changed or deleted.

 The New York State DCS has never done a predictive validity study on the examinations at issue.

 From 1989 to 1991, the New York State DCS conducted another job analysis in order to update its knowledge of the duties of Eligibility Examiners and to reevaluate the examinations for those positions. Field visits were conducted in 1989, the data from which was used to generate a list of 28 KSAs required of an Eligibility Examiner. Questionnaires were sent to hundreds of incumbent Examiners asking them to rate the 28 KSAs by the level of competence required and ...


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