Bushey v. New York State Civil Service Com'n
| Decision Date | 16 April 1984 |
| Docket Number | D,No. 779,779 |
| Parties | 34 Fair Empl.Prac.Cas. 1065, 34 Empl. Prac. Dec. P 34,337 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-Appellees, v. 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-Appellants, and Gerald A. Wells, Wilbur I. Wright, Joseph P. Bates, Thomas D. Haskell, and Percy Jones, Intervenors-Appellants. ocket 83-7893. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard R. Rowley, Albany, N.Y. (Ronald G. Dunn and Mark T. Walsh, Jr., Rowley, Forrest & O'Donnell, P.C., Albany, N.Y., of counsel), for plaintiffs-appellees.
Ann Horowitz, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Melvyn R. Leventhal, Deputy First Asst. Atty. Gen., Barbara B. Butler, and Brenda S. Spears, Asst. Atty. Gen., New York City, of counsel), for defendants-appellants.
Paul A. Crotty, New York City (John D. Shyer and Richard W. Mark, Donovan, Leisure, Newton & Irvine, New York City, of counsel), for intervenors-appellants.
Before TIMBERS, MESKILL and PIERCE, Circuit Judges.
Defendants-Appellants ("Defendants" or "the State") and Intervenors-Appellants ("Intervenors") appeal from an order and judgment of the United States District Court for the Northern District of New York, Roger J. Miner, Judge, filed October 4, 1983, 571 F.Supp. 1562, denying Defendants' and Intervenors' motions for summary judgment and granting Plaintiffs-Appellees' ("Plaintiffs") motion for summary judgment. The district judge also enjoined Defendants from making appointments to the position of Correction Captain ("Captain") of the New York State Department of Correctional Services ("Correctional Services") from an eligibility list that was based on certain examination scores adjusted to eliminate what Defendants perceived to be the adverse racial impact against minority candidates of a written examination administered by the New York State Civil Service Commission ("Civil Service"). The district judge agreed with Plaintiffs, who are nonminority candidates for the position of Captain, that the State's adjustment of the minority candidates' raw test scores discriminated against nonminority candidates in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-2 to 2000e-17 (1976 & Supp. V 1981) ("Title VII").
For the reasons set forth below, we reverse the order and judgment of the district court and we remand for further proceedings consistent with this opinion.
This action represents the most recent chapter in the controversial history of promotional examinations administered by the Civil Service for supervisory titles in the State's Correctional Services. The instant dispute began on January 30, 1982, when the Civil Service and the Correctional Services conducted Promotional Examination No. 37-526 for the position of Correction Captain. At the time the examination was given, no minority officers held permanent appointments as Captains in the State's prisons. After administering the test, the Civil Service tabulated each candidate's right and wrong answers to arrive at the candidates' raw scores. The tabulation results indicated that nonminority candidates had passed the test at about twice the rate as minority candidates, 1 as follows:
In view of the "four-fifths" rule of the Equal Employment Opportunity Commission ("EEOC") Uniform Guidelines on Employee Selection, 29 C.F.R. Sec. 1607.4(D) ("Guidelines"), 2 the State determined that the Captains' examination had an adverse racial impact on minority candidates because the passing rate of minority candidates was approximately fifty percent lower than the passing rate of nonminority candidates. Taking into account other factors that it felt reinforced its conclusion of adverse impact, 3 the State adjusted both the minority and nonminority candidates' scores by converting them to separate frequency distributions and then equating or normalizing them with the respective means. The effect was to increase to fifty percent the percentage of minorities who passed the test. From the State's perspective, this adjustment served to correct the adverse racial impact of the test by equalizing the passing rate of minority and nonminority candidates. In practical terms, the adjustment added eight minority candidates to the eligibility list without removing any of the 119 nonminorities from the list.
By acting to eliminate the perceived adverse impact of the examination on minorities, the State sought anticipatorily to avoid litigation it assumed minority candidates would bring challenging reliance on the test to promote candidates to the position of Captain. Such litigation had resulted from the use of past promotional examinations with respect to Correction Sergeants in 1972, Kirkland v. New York State Department of Correctional Services, 374 F.Supp. 1361 (S.D.N.Y.1974), aff'd in part and 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), on remand, 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) ("Kirkland Sergeants"), and Correction Lieutenants in 1981, 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), cert. denied, --- U.S. ----, 104 S.Ct. 997, 79 L.Ed.2d --- (1984) ("Kirkland Lieutenants").
The State did not succeed in staving off litigation; this time it was initiated by the nonminority candidates, who brought the instant action contending, inter alia, 4 that the State's adjustment of candidates' raw scores involved "reverse discrimination" in violation of Title VII. In its answer to the complaint, the State responded that it acted in good faith and in compliance with applicable law by voluntarily adjusting the raw scores to eliminate the examination's adverse impact. A group of minority candidates moved to intervene as defendants to assert that the written test had a facially discriminatory impact against them, that the use of separate frequency distributions to eliminate such adverse impact was proper, and that the remedial action taken by the State was the minimum necessary given the past pattern of discrimination that had been the subject of the Kirkland Sergeants and the Kirkland Lieutenants actions. The district judge granted the application to intervene by an order dated February 16, 1983.
In June, 1983, all parties moved for summary judgment. After hearing oral argument and reviewing the papers submitted by the parties in support of their respective positions, 5 Judge Miner denied Defendants' and Intervenors' motions, granted Plaintiffs' motion for summary judgment, and enjoined Defendants from making appointments to the position of Captain based on the eligibility list.
The district judge based his conclusion on three principal grounds. He held that the factors considered by the State--the distribution of scores from the written test, the litigation history of prior Correctional Services examinations for supervisory titles, the absence of empirical data indicating that minority and nonminority candidates would not perform equally well as Captains, and the availability of some data regarding the job performance of minority candidates in the two supervisory titles directly below Captain-- 6 did not establish a prima facie case of adverse racial impact vis-a-vis minority candidates. Moreover, he held that even assuming, arguendo, that the State had shown in defense of its actions a prima facie case of adverse racial impact, it still had acted in violation of Title VII because it had not proved that the inference of racial discrimination arising from a showing of adverse impact could not be rebutted by proof that the differences in test performance were job-related. In effect, the district judge held that before taking any voluntary action to eliminate the adverse racial impact of its selection process, the State, as an employer, had to meet the following two burdens: (1) make out a prima facie case of discrimination (in this context, adverse impact), and (2) prove that such prima facie case was not rebuttable. Finally, the district judge concluded that "[e]ven assuming the propriety of the need for defendants' actions in remedying the alleged discriminatory impact of [the] promotional procedures, the method by which defendants chose to effect their remedy was itself fundamentally flawed."
Upon review, we hold that the district court erred with respect to each of these grounds in granting summary judgment in favor of Plaintiffs. Consequently, we reverse and remand.
Plaintiffs argue that the district court held that the raw scores on the examination did not establish a prima facie case of adverse impact because, in Plaintiffs' words, the "statistical sample of Black and Hispanic candidates was simply too small to serve as a basis for a finding that the adverse impact was due to race or national origin." This contention, however, mischaracterizes the holding of the district judge, who expressly stated that he was "not prepared to hold that a pool consisting of thirty-two minorities and 240 or so nonminorities,...
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