Kirkland v. New York State Dept. of Correctional Services
| Decision Date | 18 August 1980 |
| Docket Number | No. 1127,D,1127 |
| Citation | 628 F.2d 796 |
| Parties | 23 Fair Empl.Prac.Cas. 1217, 24 Empl. Prac. Dec. P 31,189 Edward L. KIRKLAND and Nathaniel Hayes, each Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. The NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; Russell Oswald, Individually and in his capacity as Commissioner of the New York State Department of Correctional Services; the New York State Civil Service Commission; Ersa Poston, Individually and in her capacity as President of the New York State Civil Service Commission and Civil Service Commissioner; Michael N. Scelsi and Charles F. Stockmeister, each Individually and in his capacity as Civil Service Commissioner, Defendants-Appellees, and Dennis Fitzpatrick, Frank McDonnell, Bruce Farrell, Thomas Farron, Vincent DiGiorgio, Robert Vercile Rose, Raymond E. Friss, and Bruce Meservey, Intervenors-Appellants. ocket 80-7129. |
| Court | U.S. Court of Appeals — Second Circuit |
Jeffrey G. Plant, Albany, N.Y. (Rowley & Forrest, P.C., Richard R. Rowley, Albany, N.Y., of counsel), for intervenors-appellants Fitzpatrick et al.
Judith Reed, New York City (Jack Greenberg, O. Peter Sherwood, New York City, of counsel), for plaintiffs-appellees.
Judith A. Gordon, Asst. Atty. Gen., New York City , for defendants-appellees.
Before LUMBARD, VAN GRAAFEILAND, and KEARSE, Circuit Judges.
This is an appeal taken by intervenors, incumbent corrections officers employed by defendants, New York State Department of Correctional Services, challenging the lawfulness of the methods of testing and scoring developed by the defendants, pursuant to court order, for use in making promotions to the rank of corrections sergeant. Intervenors seek to enjoin promotions made on the basis of the disputed test; defendants and plaintiffs in the underlying discrimination suit approved of the test and sought summary judgment against intervenors. The District Court for the Southern District, Lasker, J., granted summary judgment against intervenors. We affirm.
The Department of Correctional Services makes permanent appointments to the rank of sergeant by means of competitive examination. In 1974, in a suit brought by black and hispanic corrections officers, Judge Lasker found that the test from which promotions to sergeant were being made at that time was discriminatory. Kirkland v. New York State Department of Correctional Services, 374 F.Supp. 1361 (S.D.N.Y.1974). We affirmed, 520 F.2d 420 (2d Cir. 1975). In our opinion, we spelled out the relief appropriate, which included the administration of a new, non-discriminatory test to be "validated in accordance with the E.E.O.C. Guidelines on Employment Selection Procedures," id. at 426 and we ordered that "the new testing procedures be validated by means of empirical criterion-related validation techniques if feasible." Id. at 431.
Pursuant to our directives, the Department developed Test No. 36-435. This examination consists of two parts: a written multiple-choice portion in which test-takers are asked to answer questions relating to the work of a corrections officer; and a set of "performance ratings" made by the test-taker's departmental superiors who have observed the candidate's on-the-job performance. The "performance ratings" are given in four major areas, and the candidates are assigned a numerical grade depending on how closely their performance meets, in the rater's view, the standards set out in paragraph-long descriptions of varying levels of job competence. For example, when rating an applicant's record in "Taking effective positive direct action in security situations," one of the four major areas graded, the standards range from:
Is alert and active in searching out and preparing for potential incidents. Acts efficiently and positively in taking charge at the scene of a disturbance . . .
to
He misappraises the security implications of situations. Does not take charge in situations which clearly call for it . . .
When a grader gives a particularly high or low grade (the examples given above represent opposite ends of the spectrum), he must provide additional explanation. Each applicant is graded by two different evaluators in the performance portion of Test No. 36-435, and if the scores assigned differ significantly, the two graders must explain, in writing, the reasons behind this difference. An applicant can appeal the score he receives in the performance portion of the exam, and if he does so, two other graders will be assigned to perform a de novo evaluation.
In December, 1978, Test No. 36-435 was given to approximately 2,300 applicants for the rank of sergeant. Pursuant to the district court's decree, a "validation study" was carried out in order to determine if the test would function accurately as a non-discriminatory predictor of on-the-job performance. The methodology employed, which in this respect is not challenged, 1 was to compare the raw scores of applicants grouped by racial identity on the performance portions of the exam, to their raw scores on the entire exam, in which the written multiple-choice exam results figured. A disparity of, on the average, 268 points out of a total of 8,830 was discovered. This figure represents the fact that, on average, a black applicant's raw score on the total exam was 268 points lower than that of a white applicant, in a case where both black and white applicants had scored equally well in the performance rating portion of the exam. In order to "validate" Test No. 36-435, the Department re-scored exam results by adding 250 points to the raw score of every minority group applicant.
Intervenors, who are non-minority test-takers, were granted leave by the district court to file a complaint under 42 U.S.C. §§ 1981 and 1983. They argue that the 250-point bonus is tantamount to a quota illegal under federal and state law and that the test violates New York's Civil Service laws. Judge Lasker granted the motion for summary judgment against intervenors made by plaintiffs and defendants.
We affirm. The intervenors raised no triable issues of material fact regarding Test No. 36-435, and we agree with the district court's conclusions of law.
Appellants are entirely misguided in arguing that the 250-point differential is a quota, 2 for it does not require that a minimum number of sergeant appointments be given to any members of a minority group. To the extent that appellants' argument is directed toward the fundamental fairness of the 250-point adjustment, we note that the district court found that the differential was necessary to prevent future discrimination of the kind found to have existed earlier in this case. Without the 250-point correction, the new test like its predecessor would not be "valid", since it would not serve as a race-neutral predictor of on-the-job performance. Contrary to appellants' interpretation, the E.E.O.C. guidelines recognize the possibility that a point correction to raw scores should be made in some situations, i. e., "to assure compatibility between the probability of successful job performance and the probability of being selected." 3 29 C.F.R. § 1607.14(B)(8)(d).
Appellants also argue that the 250-point differential is "reverse discrimination" in violation of part of our holding in the earlier appeal in this case, 520 F.2d 420 (2d Cir. 1979). In that opinion we said that "no one should be 'bumped' from a preferred position on the eligibility list solely because of his race." Id. at 429. Although we do not discount the continuing validity of this statement, we observe that its context demonstrates that it was directed primarily to the question of minority group quotas for promotions. Kirkland forbade such quotas and, as we have said above, the steps taken by the Department at issue in this case do not constitute de jure or de facto quotas. This program does not bump white candidates because of their race but rather re-ranks their predicted performance as estimated by the combined test score and job performance ratings. Finally, our previous opinion approved a broad range of affirmative action relief, including quotas in interim appointments, id. at 429-430, and made a distinction between quotas in initial hiring decisions and in promotions.
Of course, the 250-point differential does operate to favor minority test-takers if one assumes that the multiple-choice written portion of the exam is a truly objective measure of qualities important to success as a corrections officer. But even if "(s)ome non-minority applicants near the cut-off scores of appointment will be effectively denied employment owing to the elevation of scores of minority candidates," appellants have not cited us to any persuasive authority in federal law that makes such denial illegal. In light of the importance of non-discriminatory hiring in correctional institutions, where a high percentage of the inmates are members of minority groups, the lack of any such prohibition is easily understood.
Moreover, the issue of the 250-point differential is settled by the law of the case doctrine. Our earlier Kirkland decision requires any new test "to be validated by means of empirical criterion-related validation techniques if feasible." 520 F.2d at 431. By requiring the use of such techniques we, in effect, foreclosed the argument made now by intervenors. Criterion validation requires the abstracting of job performance characteristics and the rating of employees as to how they measure up to these characteristics. These ratings can then be compared to the performance of applicants who have taken a written exam. If significant variation correlating to racial identity is found in such a comparison, the test fails to be criterion valid. In this case, the abstracting of job performance...
To continue reading
Request your trial
-
Bushey v. New York State Civil Service Com'n
...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 In January of 1982, minority Correction Sergeants lodged a further challenge to DO......
-
Kirkland v. New York State Dept. of Correctional Services, s. 828
...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 "), involved a successful challenge to the sele......
-
Bushey v. New York State Civil Service Com'n
...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......
-
Lopez v. S.B. Thomas, Inc.
...cl. 2. See Hamm v. City of Rock Hill, 379 U.S. 306, 315, 85 S.Ct. 384, 391, 13 L.Ed.2d 300 (1964); Kirkland v. New York State Dep't of Correctional Facilities, 628 F.2d 796, 801 (2d Cir.1980), cert. denied sub nom, 450 U.S. 980, 101 S.Ct. 1515, 67 L.Ed.2d 815 (1981); see also St. Martin Eva......