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July 28, 2000


The opinion of the court was delivered by: Glasser, United States District Judge.


Having been removed from Suffolk County Supreme Court in May of this year, this action is before the Court on the plaintiffs' motion to remand, and on the defendants' motion to vacate a temporary restraining order entered in Supreme Court enjoining Suffolk County from hiring police officers. Because this action has been properly removed, the plaintiffs' motion to remand is denied. As to defendants' motion to vacate the state court restraining order, there is no need for a ruling because the issue is moot. As explained more fully below, the order expired shortly after being removed, and there have been no further proceedings regarding the plaintiffs' initial application for injunctive relief.


In 1983, the United States filed a civil action against Suffolk County (the "County"), the Suffolk County Police Department (the "SCPD"), its Police Commissioner, and the County's Civil Service Commission alleging, inter alia, that the County had engaged in employment discrimination against women, blacks and hispanics with respect to job opportunities in the County's Police Department, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. After some three years of litigation, the parties agreed to the terms of a Consent Decree entered by this Court in September, 1986. See United States v. Suffolk County, No. 83-CV-2737 (E.D. N.Y. Sept. 12, 1986) (Nickerson, J.).

By its terms, the Decree is designed to ensure that "women, blacks and hispanics are considered for employment by Suffolk County in the SCPD on an equal basis with white males, and that all employment decisions with respect to the SCPD shall be made on a nondiscriminatory basis without regard to an applicant's or an employee's race, sex or national origin." Decree ¶ 1. Of direct relevance to the proceedings in this case, the County pledged that it would "immediately undertake to design, develop and validate a new procedure to be used by it in the selection of candidates for Police Officer in the SCPD, which procedure is lawful under Title VII and conforms to the requirements of [various provisions of the Code of Federal Regulations]." Id. at ¶ 3. The County further agreed to retain a testing firm, Richardson, Bellows, Henry and Co. ("RBH"), to develop such a procedure for the future selection of police officers. Id. at ¶ 4.

The Decree states that RBH was being retained for the purpose of creating a selection regime that would have a "less adverse impact" than the previous regime on the hiring of women, blacks, and hispanics. Id. at ¶ 7. The previous regime had been based in large part on a test formulated by the Educational Testing Service, Inc. ("ETS"), which had, the parties agreed, "a substantial adverse impact upon black, hispanic and female, as compared to white and male, Police Officer candidates." Id. at ¶ 11.

The Decree commits the County to implementing a "vigorous recruitment program directed at enhancing the employment opportunities of qualified female, black and hispanic applicants for the rank of Police Officer in the SCPD." Id. at ¶ 16. The Decree also recognizes the right of the United States Department of Justice to "monitor the County's applicant flow pursuant to the County's obligation [to enhance the employment opportunities of minorities and women]. . . ." Id. at ¶ 18.

The Decree further binds the County to make available upon request to the Department of Justice "all documents, records or other memoranda pertaining to the recruitment, selection, hire, assignment, transfer, promotion, demotion, discipline and termination of all personnel in the SCPD," and otherwise to "furnish reports and information" concerning the County's compliance with the Decree Id. at ¶ 33. Finally, under the Decree this Court retained jurisdiction "for the purpose of entering all orders, judgments and decrees which may be necessary to implement that relief provided herein and to effectuate Suffolk County's full and complete compliance with Title VII." Id. at ¶ 37. The same provision permitted the County to move, after five years of the Decree's being entered, for its dissolution, and stated that the County would be entitled to that relief if it had "complied with this Decree in all material respects." Id.

In fact, the County has not moved to dissolve the Decree, which remains in force. In accord with its provisions, the County continues to submit its recruitment procedures to the Justice Department for approval, and continues to consult with DOJ on the construction of civil service examinations designed to screen potential officers for the SCPD. On May 22, 1999, such an exam was administered (the "SHL Exam"). It had originally been developed by a County contractor, SHL Landy, Jacobs, and was duly approved by the Department of Justice. Subsequently, candidates who had taken the SHL Exam were rated and ranked, and placed on an "eligibles list" on the basis of which hiring decisions would be made.

On May 17, 2000 the plaintiffs commenced a CPLR Article 78 proceeding in state court seeking judicial review of the SHL Exam.*fn1 On the same day they presented an order to show cause to Justice Robert A. Lifson of the Supreme Court, County of Suffolk, seeking a preliminary injunction against the County barring it from hiring police officers and from using the results of the SHL Exam pending disposition of the Article 78 proceeding. The order to show cause also contained a temporary restraining order pending the hearing on the preliminary injunction. Justice Lifson granted the TRO on plaintiffs' application in so far as it sought to enjoin the hiring of officers, and set a hearing on the application for a preliminary injunction for May 22, 2000.*fn2 On that day, the County filed a notice of removal with the Suffolk County Clerk, removing the case to this Court.

In their Article 78 action, the plaintiffs seek a judicial determination that the SHL Exam "was prepared, administered and graded in accord with all applicable laws, statutes and regulations" and "that the grading and weighting of answers to the selection device achieved a relevant level of true validity as a predictive device for job performance as a Suffolk County Police Officer." Petition at ¶ C. Plaintiffs also seek to enjoin "the creation of an eligible list, the processing of applicants into the police academy or any action taken to fill positions on the Suffolk County Police Department prior to petitioners and their experts having an opportunity to examine the test's validation studies . . . technical reports [and] final report. . . ." Id.

In support of its application for this relief, the Petition alleges that the plaintiffs' raw scores on the SHL Exam were "manipulat[ed]" and "weight[ed]" and otherwise adjusted to their detriment. Pet. at ¶ 7. The plaintiffs allege that the SHL Exam, on its face and as administered, violates both the New York Civil Service Law and the Suffolk County Code. Specifically, plaintiffs contend that by containing questions directed at gathering information about the candidate's background and personal characteristics, and by giving weight to the answers to those questions equal or in proportion to the answers to "cognitive" questions, the SHL Exam impermissibly discriminates against plaintiffs so as to generate higher "numbers of minority candidates in the top levels of the grading lists." Id. at ¶ 19. At the same time, plaintiffs allege, the SHL Exam also violates standards articulated in the state constitution, and reiterated in state and county law, that civil service appointments be made solely on the basis of "merit and fitness." Id. at ¶ 24.*fn3

The plaintiffs' petition further alleges that the 1986 Decree "dealt only with the RBH selection device," and therefore is inapplicable to the SHL Exam. Id. at ΒΆ 12. Plaintiffs also allege that the defendant Alan Schneider, Personnel Director for the County government, has erroneously construed the Decree ...

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