Bushey v. New York State Civil Service Com'n

• Decision Date: 03 October 1983
• Docket Number: No. 82-CV-1219.,82-CV-1219.
• Citation: 571 F. Supp. 1562
• Parties: 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 D. Rogan, Miles Barnes, Donald E. Clark and Gerald Sweeney, each individually and on behalf of all others similarly situated, Plaintiffs, v. The 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. Gerald A. Wells, Wilbur I. Wright, Joseph P. Bates, Thomas D. Haskell and Percy Jones, Defendants-Intervenors.
• Court: U.S. District Court — Northern District of New York

571 F. Supp. 1562

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 D. Rogan, Miles Barnes, Donald E. Clark and Gerald Sweeney, each individually and on behalf of all others similarly situated, Plaintiffs, v. The 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.

Gerald A. Wells, Wilbur I. Wright, Joseph P. Bates, Thomas D. Haskell and Percy Jones, Defendants-Intervenors.

No. 82-CV-1219.

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

October 3, 1983.

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Robert Abrams, Atty. Gen. of the State of N.Y., New York City, for defendants; Melvyn R. Leventhal, Barbara B. Butler, Brenda S. Spears, Ann Horowitz, Asst. Attys. Gen., New York City, of counsel.

Donovan, Leisure Newton & Irvine, New York City, for defendants-intervenors; Paul A. Crotty, John D. Shyer, Greta Glavis, New York City, of counsel.

Rowley, Forrest & O'Donnell, P.C., Albany, N.Y., for plaintiffs; Richard R. Rowley, Ronald G. Dunn, Albany, N.Y., of counsel.

MEMORANDUM-DECISION and ORDER

MINER, District Judge.

I

This rather novel reverse discrimination action arises out of the alleged racially discriminatory treatment of non-minority plaintiffs in the context of their civil service employment with the State of New York. The action is brought pursuant to 42 U.S.C. §§ 1981 and 1983, and Titles VI¹ and VII² of the Civil Rights Act of 1964. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. Before this Court are motions by all parties³ for summary judgment pursuant to Fed.R.Civ.P. 56(a) & (b).

II

The relative simplicity of the facts surrounding this controversy belies the rather subtle and intricate legal issues which are raised. Plaintiffs, fifteen white employees of the Department of Correctional Services ("DOCS"),⁴ commenced this action on November 8, 1982 seeking to enjoin⁵ defendants from making promotions on the basis of a controversial "eligible list." This list was derived from the results of Civil Service Examination No. 37-526 ("examination"). The examination, developed, administered and scored by defendant New York State Civil Service Commission ("CSC"), was taken by plaintiffs in January of 1982 in order to compete for promotion to the rank of Correction Captain. The present controversy centers upon the actual grading of the examination by defendant CSC. Essentially, plaintiffs claim that minority candidates' test scores improperly were supplemented with a "racial bonus" in order to compensate for an alleged adverse racial impact contained in the written test. A full understanding of the scoring methodology employed, and the claimed need for its use here, requires a brief survey of past litigation involving Corrections Department personnel.

In 1972, CSC, upon request of DOCS, prepared an examination to be taken by Corrections Department Officers in order to qualify for promotion to the rank of Sergeant. The examination was administered on October 14, 1972. Alleging that the test improperly discriminated against them on the basis of race, black and Hispanic Correction Officers challenged the test's constitutional validity. Kirkland v. New York State Department of Correctional Services, 374 F.Supp. 1361 (S.D.N.Y.1974), aff'd in part, rev'd in part, 520 F.2d 420 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976) ("Kirkland Sergeants"). Judge Lasker determined that the Sergeants exam did indeed discriminate against minorities and ordered DOCS to develop new selection procedures to be validated by means of an empirical, criterion-related study. Between 1974 and 1979, DOCS attempted to comply with Judge Lasker's order and put forth its proposal for new selection procedures. The new proposal, which called for the addition of 250 points to the test scores of minority candidates,⁶ was held by Judge Lasker to have satisfied the requirements established by the Second Circuit in their affirmance of his initial order. 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).

In January of 1982, minority Correction Sergeants lodged a further challenge to DOCS' procedures, claiming that the promotional examination for the position of Correction Lieutenant was racially discriminatory against blacks and Hispanics. On August 20, 1982, the parties to the suit submitted proposals of settlement to Judge Griesa of the Southern District of New York. On November 9, 1982, Judge Griesa approved the proposed settlement. Kirkland v. New York State Department of Correctional Services, 552 F.Supp. 667 (S.D. N.Y.1982), aff'd, 711 F.2d 1117 (2d Cir.1983). The settlement agreement provided measures both to eradicate all disproportionate racial impact resulting from administration of the Lieutenants examination as well as provisions for the development and administration of new selection procedures for promotion to Correction Lieutenant and Correction Captain. Holding that "voluntary compliance is a preferred means of achieving Title VII's goal of eliminating employment discrimination," the Second Circuit affirmed Judge Griesa's approval of the settlement agreement. Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1128 (2d Cir.1983) ("Kirkland Lieutenants").

Against this background, and apparently in an effort to forestall a third Kirkland -type suit with respect to the Captains examination, CSC took it upon itself to adjust minority candidates' scores upward, thereby eliminating what it perceived to be the adverse racial impact of the Captains test. It is this anticipatory defensive maneuver which serves as the basis for the instant action.

The Civil Service Framework

In New York, the State Civil Service Commission is charged with administration of the state's civil service system. N.Y.Civ. Serv.Law § 6 (McKinney 1983). The procedures regarding civil service examinations and appointments are greatly detailed and are set forth in the Civil Service Law. The overriding theme of the civil service system expresses the fundamental purpose that appointments be based on merit. E.g., N.Y. Const. art. V, § 6 ("Appointments and promotions in the civil service of the state and all of the civil divisions thereof ... shall be made according to merit and fitness to be ascertained, so far as practicable, by examination which, as far as practicable, shall be competitive ...."); N.Y.Civ.Serv.Law § 52(2) (McKinney 1983) ("Promotion shall be based on merit and fitness as determined by examination ...."); Matter of Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65 (1938) ("The fundamental purpose running through our civil service provisions is that, so far as practicable, positions in the State service shall be filled by competitive examinations"). Section 95 of the Civil Service Law provides that:

It shall be the duty of all officers of the state of New York ... to conform to and comply with and to aid in all proper ways in carrying into effect the provisions of this chapter, and the rules and regulations prescribed thereunder. No officer or officers having the power of appointment or employment shall appoint or select any person for appointment, employment, promotion or reinstatement except in accordance with the provisions of this chapter and the rules and regulations established thereunder.

N.Y.Civ.Serv.Law § 95 (McKinney 1983).

With respect to examinations, § 66.2 of the Rules and Regulations of the Department of Civil Service provides that "no candidate shall be passed in an examination or have his name entered upon an eligible list who fails to attain a passing mark in the examination as a whole ...." While the Civil Service Commission is thus constrained to act within the confines of its legislative mandate, a fragile balance is brought to bear when that mandate is alleged to interfere with citizens' constitutional rights. More specifically, if strict compliance with the mandated merit procedures were to lead to illegal racial discrimination under, for example, a Title VII analysis, then the state law must yield to this overriding federal constitutional consideration. See Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission, 630 F.2d 79, 104-05 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981). In this light, a consideration of the propriety of defendants' remedial actions will be undertaken.

The Examination

Examination No. 37-526 was administered on January 30, 1982. After the candidates' raw scores had been compiled, CSC reviewed the test scores to determine whether the examination had an adverse impact upon racial or ethnic minorities. Based on the raw scores, 119 out of 243 (forty-nine percent) non-minority candidates passed the examination. Only eight out of thirty-two (twenty-five percent) minority candidates achieved a passing score. Applying the four-fifths rule of the EEOC Uniform Guidelines on Employee Selection, 29 C.F.R. § 1607.4D,⁷ CSC concluded that there was in fact an adverse impact upon minority candidates. Accordingly, in order to effect prospective compliance with Title VII, CSC determined to adjust minority scores upward. The statistical methodology employed by CSC to effect the adjustment was that of "separate frequency distribution." Essentially, the process entails preparing separate distributions of minority...