Kirkland v. New York State Dept. of Correctional Serv., 73 Civ. 1548.

• Citation: 374 F. Supp. 1361
• Decision Date: 01 April 1974
• Docket Number: No. 73 Civ. 1548.,73 Civ. 1548.
• Parties: Edward L. KIRKLAND and Nathaniel Hayes, each Individually and on behalf of all others similarly situated, Plaintiffs, v. The NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES et al., Defendants.
• Court: U.S. District Court — Southern District of New York

374 F. Supp. 1361

Edward L. KIRKLAND and Nathaniel Hayes, each Individually and on behalf of all others similarly situated, Plaintiffs, v. The NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES et al., Defendants.

No. 73 Civ. 1548.

United States District Court, S. D. New York.

April 1, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jack Greenberg, Jeffry A. Mintz, Morris J. Baller, Deborah M. Greenberg, New York City, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, New York City, for defendants; Judith A. Gordon, Asst. Atty. Gen., Stanley L. Kantor, Deputy Asst. Atty. Gen., of counsel.

OPINION

LASKER, District Judge.

This suit is another in an ever-extending series of challenges to civil service examinations. Plaintiffs, who are Correction Officers,¹ provisionally appointed to the rank of Correction Sergeant (Male), contend that the test for promotion and permanent appointment to that position discriminated against them on the basis of race. They seek to represent all Black and Hispanic Correction Officers and provisional Correction Sergeants who failed the examination, who passed it but ranked too low to be appointed or who were deterred by the appointment system from seeking promotion. Defendants are the New York State Department of Correctional Services, its Commissioner, and the New York State Civil Service Commission and its Commissioners.

The action is brought under the Fifth and Fourteenth Amendments to the Constitution and under the Civil Rights Act (42 U.S.C. §§ 1981 and 1983) and its jurisdictional counterpart (28 U.S.C. §§ 1343(3) and (4)). Plaintiffs make no claim under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17), despite the availability, by recent amendment, of remedies under it against states and municipalities (id. at § 2000e(a)).²

In spring, 1972, the 1970 eligible list for Sergeant appointments was exhausted. To fill needed positions pending establishment of a new list, the Department of Corrections appointed provisional Correction Sergeants, in August, 1972, to hold their posts until permanent appointments could be made. Both named plaintiffs were appointed at that time.

Upon request of the Department of Corrections, the Civil Service Commission prepared a promotional examination which was administered on October 14, 1972. That examination, 34-944, was taken and failed by plaintiffs and is the subject of this action.

34-944 was taken by 1,383 persons,³ including 1,264 whites, 103 Blacks and 16 Hispanics. The candidates examinations were graded and the passing grade was established at 70%. After adjustment for veteran's preference and seniority, those who passed were ranked by grade and an eligible list was promulgated on March 15, 1973. On April 10, 1973, this suit was filed and a temporary restraining order entered preventing defendants from making appointments from the list and from terminating the provisional appointments of plaintiffs or members of the class. By modification and stipulation, the restraining order was extended to maintain the status quo until a decision on the merits.

The ground rules for cases such as this have been thoroughly elucidated by recent decisions of the Court of Appeals for this Circuit. We note in particular Vulcan Society of the New York City Fire Department, Inc. v. Civil Service Commission ("Vulcan"), 490 F.2d 387 (2d Cir. 1973), aff'g, 360 F. Supp. 1265 (S.D.N.Y.1973); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission ("Guardians"), 482 F.2d 1333 (2d Cir.), aff'g in part and rev'g in part, 354 F.Supp. 778 (D. Conn.1973), and Chance v. Board of Examiners ("Chance"), 458 F.2d 1167 (2d Cir. 1972), aff'g, 330 F.Supp. 203 (S.D. N.Y.1971). To summarize the approach adopted by the cases, plaintiffs must first establish a prima facie case showing that the examination has had "a racially disproportionate impact." Vulcan, 490 F.2d at 391; Castro v. Beecher ("Castro"), 459 F.2d 725, 732 (1st Cir. 1972). If they succeed, it then becomes defendants' burden to justify the examination's use despite its differential impact by proving that it is job-related (Vulcan, 490 F.2d at 391) and that any disparity of performance results solely from variance in qualification and not from race (Griggs v. Duke Power Co., 401 U.S. 424, 430-431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Chance, 330 F. Supp. at 214). Discharging this burden would entitle defendants to judgment; failure would, of course, require the court to take the third step of determining what remedy would be appropriate.

As is typical in cases of this type, plaintiffs do not allege that defendants have intentionally discriminated against their class. Such an allegation is not a necessary part of their case. Chance, 458 F.2d at 1175-1176. As the Supreme Court stated in Griggs:⁴

"Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as `built-in head-winds' for minority groups and are unrelated to measuring job capability." 401 U.S. at 432, 91 S.Ct. at 854.

However, the fact that the alleged discrimination is not claimed to be deliberate modifies the burden placed on the state to justify its actions. Intentional racial discrimination would require the state to demonstrate a compelling necessity for its selection methods. Cf. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). However, "the Supreme Court has yet to apply that stringent test to a case such as this, in which the allegedly unconstitutional action unintentionally resulted in discriminatory effects." Chance, 458 F.2d at 1177. Agonizing over whether the state can discharge its constitutional obligations merely by suggesting a rational basis for the examination's use or whether it must satisfy a more demanding standard, short of the compelling interest test, is unnecessary. The guidelines have been so refined by the cases that no ambiguity obscures the road to determination regardless of the difficulties of classification which may remain to plague the theorists. Guardians, 482 F. 2d at 1337. The decisions impose on the state "a heavy burden of justifying its contested examinations by at least demonstrating that they were job-related." Chance, 458 F.2d at 1176; see also Guardians, 482 F.2d at 1337. This "heavy burden" is discharged if the state "comes forward with convincing facts establishing a fit between the qualification and the job." Vulcan, 490 F.2d at 393, quoting Castro, 459 F.2d at 732. Once the state proves its case to that extent, it need not establish, as would be required under the compelling interest approach, that no alternate means of selection are open to it. Castro, 459 F. 2d at 733; see also Vulcan, 490 F.2d at 393.

However clearly the issues are delineated by well-established precedent, nothing can make easy the task of deciding a case such as this. The competing interests are vital to the named parties, to other individuals who may be affected by the outcome and to the public at large. Plaintiffs strive to insure for themselves and the minorities they seek to represent the fair treatment in the public employment sphere which the Constitution guarantees. Their efforts bring them into conflict with those individuals who passed the challenged examination and have a vested interest in securing the promotions which are rightfully theirs if the examination is upheld. For both groups, the outcome is critical since it affects their ability to earn a living by advancing in the profession of their choice. Last and perhaps most important is the public's stake in establishing and maintaining a system of prison administration which is both competent and representative of the population. As members of the public, we include, of course, the inmates of the prison system who, more than anyone else in the community, are directly affected by the quality of correctional supervision. The delicacy of the decision is further compounded by the potential for heightened tension which attends any direct conflict along racial and cultural lines.

Bearing these factors in mind, we proceed, with caution but without more ado, to a consideration of plaintiffs' prima facie case.

I. DISPROPORTIONATE IMPACT.

Plaintiffs rest their case on the following uncontested statistics. The figures computed by defendants indicate that White candidates passed 34-944 at a rate of 30.9%, while only 7.7% of Black candidates and 12.5% of Hispanic candidates achieved a passing score. (Transcript at 500). That is, Whites passed at a rate approximately four times that of Blacks and 2.5 times that of Hispanics. Defendants concede the statistical significance of these differences. (Post-trial Memorandum at I-4.)

Plaintiffs' evidence reveals an even more startling disparity among those who ranked high enough to be appointed. The Department of Corrrections intends to appoint a maximum of 147 persons from the present eligible list.⁵ A computer display of the results of 34-944 (PX-12) reveals that, of 159 persons who scored 57 or above (a group large enough to satisfy the Department's projected needs), 157 were White, two were Black and none was Hispanic. Thus, 12.5% of the Whites who took 34-944 are likely to be appointed, while only 1.9% of Black candidates and no Hispanics have a chance at appointment. These results would lead to the appointment of Whites at 6.5 times the rate of Blacks and would bar completely the appointment of Hispanics.

The statistical significance of these figures is established beyond dispute by the earlier cases. In Chance, Guardians and Vulcan, the impact was less drastically disproportionate among the races. In Chance, the passing rate for Whites was 1.5 times that of Blacks and Hispanics (330 F.Supp. at 210); in Guardians, Whites passed at 3.5 times the rate for Blacks and Hispanics (354 F.Supp. at 784); and in V...