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Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Second Circuit
› 1983 › 32 Fair Empl.prac.cas. (bna) 509,32 Empl. Prac. Dec. P 33,666edward L.
Kirkland, Joseph P. Bates, Sr...

32 FAIR EMPL.PRAC.CAS. (BNA) 509,32 EMPL. PRAC. DEC. P 33,666EDWARD L. KIRKLAND,
JOSEPH P. BATES, SR., ARTHUR E. SUGGS,EACH INDIVIDUALLY AND ON BEHALF OF ALL
OTHERSSIMILARLY SITUATED, PLAINTIFFS-APPELLEES, V. THE NEW YORK STATE DEPARTMENT
OF CORRECTIONAL SERVICES;THOMAS A. COUGHLIN, III, INDIVIDUALLY AND IN HIS
CAPACITY ASCOMMISSIONER OF THE NEW YORK STATE DEPARTMENT OFCORRECTIONAL
SERVICES; THE NEW YORK STATE CIVIL SERVICECOMMISSION; JOSEPH VALENTI,
INDIVIDUALLY AND IN HISCAPACITY AS PRESIDENT OF THE NEW YORK STATE CIVIL
SERVICECOMMISSION AND CIVIL SERVICE COMMISSIONER; JOSEPHINEGAMBINO AND JAMES
MCFARLAND, EACH INDIVIDUALLY AND INHIS/HER CAPACITY AS CIVIL SERVICE
COMMISSIONER, DEFENDANTS-APPELLEES,FREDERICK E. ALTHISER, ET AL.,
INTERVENORS-APPELLANTS-APPELLEES,, 711 F.2D 1117 (2D CIR. 1983)

Annotate this Case

U.S. Court of Appeals for the Second Circuit - 711 F.2d 1117 (2d Cir. 1983)
Argued Feb. 3, 1983. Decided June 8, 1983

--------------------------------------------------------------------------------

O. Peter Sherwood, New York City (Jack Greenberg, Penda D. Hair, New York City,
of counsel), for plaintiffs-appellees.

Barbara B. Butler, Asst. Atty. Gen., State of N.Y., New York City (Robert
Abrams, Atty. Gen. of State of N.Y., Dennis H. Allee, First Asst. Atty. Gen.,
Albany, N.Y., George D. Zuckerman, Asst. Sol. Gen., Ann Horowitz, Asst. Atty.
Gen., New York City, of counsel), for defendants-appellees.

Richard R. Rowley, Albany, N.Y. (Rowley, Forrest & O'Donnell, P.C., Ronald G.
Dunn, Mark T. Walsh, Jr., Albany, N.Y., of counsel), for Althiser, et al.,
intervenors-appellants-appellees.

Herbert B. Halberg, New York City (Beck, Halberg & Williamson, Roman Beck, New
York City, of counsel), for McClay et al., intervenors-appellees-appellants.

Before FEINBERG, Chief Judge, and LUMBARD and KEARSE, Circuit Judges.

LUMBARD, Circuit Judge:

--------------------------------------------------------------------------------

Edward Kirkland and other minority Correction Sergeants in the New York State
Department of Correctional Services ("DOCS") brought this class action on
January 15, 1982 alleging that Promotional Examination No. 36-808 ("Exam
36-808"), given on October 3, 1981 for the position of Correction Lieutenant by
DOCS and the New York Civil Service Commission ("CSC"), and Exam 36-808's
resulting eligibility list are racially discriminatory against blacks and
hispanics in violation of, inter alia, Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976 and Supp. IV 1980).1 On August 20,
1982, pursuant to Fed. R. Civ. P. 23(e), the parties submitted proposals of
settlement to Judge Griesa of the Southern District of New York. After due
notice, Judge Griesa held hearings on September 29 and October 4 and 14, 1982
during which he heard objections from two groups of non-class members
("intervenors"), i.e., non-minority correctional officers, who, at the September
29, 1982 hearing, had been permitted to intervene on the condition that their
intervention would be solely for the purpose of objecting to the proposed
settlement. On November 9, 1982, Judge Griesa approved the settlement and filed
an opinion on December 1, 1982. 552 F. Supp. 667. In their appeal, intervenors
challenge Judge Griesa's grant of conditional intervention as well as his
approval of the settlement. On November 16, 1982, on intervenors' motion, we
stayed Judge Griesa's order of approval and expedited argument of the appeal. We
affirm.

A. Exam 36-808 and its Resulting Eligibility List.

Exam 36-808, a written test consisting of sixty multiple choice items, was
administered by CSC on October 3, 1981 to 739 candidates, of whom 169 (22.9%)
were minority. Of the 625 candidates who passed the test, 148 (22.0%) were
minority. Thus, minority candidates had an overall pass rate of 88% (148 out of
169 minority candidates passed), only slightly below the 92% pass rate of
non-minorities (527 out of 570 non-minority candidates passed).

On December 23, 1981, CSC certified an eligibility list ranking the passing
candidates according to their final scores, which were calculated by adding
seniority and veterans' credits to the candidates' adjusted scores.2 Although
the overall minority representation on the eligibility list (22.0%) was
approximately the same as the minority representation in the total candidates
pool (22.9%), minority representation within the eligibility list's
rank-ordering system was disproportionately low at the list's top and high at
the list's bottom.3 A racial/ethnic breakdown of the candidates' raw scores,
which reflect only the number of correct answers given, shows that the awarding
of seniority and veterans' credits to qualifying candidates did not play a
significant role in causing the uneven distribution of minorities on the
eligibility list.4

Appointments according to rank-order on the eligibility list began in early
January, 1982. Of 171 initial appointments, 17 (9.9%) were minority. By July 28,
1982, 222 candidates had been promoted to Correction Lieutenant, of whom only 20
(9.0%) were minority. As of September 29, 1982, 225 appointments had been made,
of which 21 (9.3%) went to minority candidates.

B. The Settlement Agreement.

On January 15, 1982, immediately after the first appointments from the
eligibility list, plaintiffs brought this class action. They alleged that DOCS,
CSC, and their high officers had engaged in unlawful discrimination against
blacks and hispanics in the development and administration of Exam 36-808 and in
the use of the resulting eligibility list to make permanent promotional
appointments to the position of Correction Lieutenant. Plaintiffs contended that
Exam 36-808 was discriminatory because (1) it resulted in a disproportionately
low number of minority appointments and (2) it was not job-related. The
complaint sought an injunction against the continued use by defendants of all
racially discriminatory practices, damages in the form of back pay for alleged
past discrimination, and other relief, including the development of
non-discriminatory selection procedures for promotion and the implementation of
steps to redress the discriminatory effects of Exam 36-808 and its resulting
eligibility list.

In August 1982, following seven months of discovery proceedings and extensive
settlement negotiations, the parties entered into a settlement agreement which
contains two basic elements "to assure that minorities by reason of their race
are not disadvantaged by the employment policies, procedures and practices
within ... [DOCS], and that any disadvantage to minorities which may have
resulted from the use of Examination No. 36-808 is remedied as provided herein
so that equal opportunity will be provided for all." Settlement Agreement art.
I(7). First, it provides measures to adjust the current eligibility list to
eradicate all disproportionate racial impact. Second, it provides for the
development and administration of new selection procedures for promotion to
Correction Lieutenant and Correction Captain which will be employed after the
current eligibility list for Exam 36-808 has been exhausted.5

1. Adjustment of the Current Eligibility List.

The agreement provides that all candidates who have received appointments from
the eligibility list will retain their appointments and that appointments will
continue until the list is fully exhausted, i.e., "until every eligible on the
36-808 List has been offered an appointment and has been afforded a reasonable
opportunity to either accept or decline." Settlement Agreement art. VI(5) (c).
The agreement seeks to eliminate the eligibility list's adverse impact on
minorities by modifying its rank-ordering system. All candidates who passed Exam
36-808, including those candidates who have already been appointed, are to be
placed into three zones based on their final test scores which, as discussed
above, include seniority and veterans' credits.6 Of the 225 appointments which
had been made by September 29, 1982, most were offered to candidates who would
place in the highest zone.7

The agreement contains the following procedures to govern future promotions from
the eligibility list.8 All candidates falling within a single zone are to be
deemed to be of equal fitness and will be ranked within their zone by random
selection. Appointments will then be offered by rank order to those candidates
in the highest unexhausted zone. However, these appointments will first be
offered to minority candidates in this zone until minority appointments amount
to 21% of all appointments made, a number approximately reflecting the
percentage of minorities on the eligibility list.9 Thereafter, appointments
will be made in a ratio of 4 to 1, non-minority to minority, until the
eligibility list is exhausted. In any event, no minority applicant in a lower
zone will be eligible for appointment until appointments have been offered to
all candidates, regardless of race, in the highest unexhausted zone. Finally,
candidates will only be offered appointments to facilities or locations at which
they have expressed a willingness to serve. If no minority candidate has
designated the facility or location at which a vacancy occurs, the appointment
will be offered to non-minority candidates notwithstanding the fact that the 21%
ratio has not been achieved.

2. Future Promotional Procedures for Correction Lieutenant and Correction
Captain.

The agreement also requires the parties to work toward the development of new
selection procedures for promotion to Correction Lieutenant and Correction
Captain which do not have an adverse racial impact and which are job-related.
These procedures are to be employed after the current eligibility list is
exhausted. The agreement requires defendants to "consider the possibility of
alternatives or supplements to written examinations, including use of oral
examination or assessment center techniques," Settlement Agreement art. VI(7)
(c), but it does not mandate adoption of any specific approach. In short, the
agreement suggests various procedures that have been used successfully in other
situations to insure that future selection processes are not racially
discriminatory.

C. The Proceedings in the District Court.

The settlement agreement was submitted to Judge Griesa on August 20, 1982 for
approval pursuant to Fed. R. Civ. P. 23(e). Pursuant to an order of Judge
Griesa, due notice was given to members of the plaintiff class and to each
candidate on the eligibility list who had not yet been appointed that objections
would be heard on September 29, 1982. The notice included a summary of the
settlement's terms and a statement that any DOCS employee could file objections
to the settlement with the district court.

Two groups of non-class member/non-minority correctional officers appeared at
the September 29, 1982 hearing and sought intervention. After hearing the
proposed intervenors' objections to the settlement and their application for
intervention, Judge Griesa, considering intervenors' application to be a request
for permissive intervention under Fed. R. Civ. P. 24(b), ruled from the bench
that "the intervenors are permitted to intervene for the sole purpose of
objecting to the settlement ...." Judge Griesa stated that he was limiting the
intervention primarily because the application was untimely. He found that
intervenors had known of the action since its inception, and that although they
were present at a July 14, 1982 conference at which the terms of the settlement
were fully discussed, they did not then press for intervention and in fact
appeared to favor the concepts and general terms of the settlement. Accordingly,
Judge Griesa believed that it would be unfair to grant unlimited intervention
because the parties "through hard work, careful thought and extensive
negotiation" had decided "that there was no need for a trial and that there
could be a settlement," while intervenors had taken no formal steps to intervene
until after a settlement had been reached. He also noted that there was a
"serious question" whether intervenors, even if granted unconditional
intervention, would have sufficient standing beyond that enabling them to object
to the settlement to require a full blown trial at which they would be permitted
to defend the validity of Exam 36-808.

Additional hearings were held on October 4 and 14, and the parties and
intervenors thereafter submitted briefs. On November 9, 1982, Judge Griesa
issued an order approving the settlement on the grounds that it was "fair,
reasonable and lawful in all respects" and that the intervenors' objections were
"without merit." In his subsequent opinion of December 1, 1982, 552 F. Supp.
667, Judge Griesa wrote:

The present settlement agreement is not only justified by legal precedent, but
is inherently reasonable and sound as a matter of policy. The benefits to
plaintiff class of minority applicants inevitably result in some detriment to
non-minority correctional officers competing for promotion to the rank of
Lieutenant. However, the benefits to plaintiff class are modest and are
carefully tailored to the precise problem raised by them in litigation. By the
same token, the detriment to the non-minority applicants is also modest and is
in fact considerably less than what might have occurred if plaintiffs had
pressed their litigation to the end and not agreed to a settlement [i.e., those
appointments already made could have been declared null and void].

Id. at 671.

Specifically, Judge Griesa found that the statistical demonstration of the
eligibility list's disproportionate racial impact established a prima facie case
of Title VII discrimination under Castaneda v. Partida, 430 U.S. 482, 496 n. 17,
97 S. Ct. 1272, 1281 n. 17, 51 L. Ed. 2d 498 (1977), and held that a reasonable
basis therefore existed for entering into a settlement creating race-conscious
remedies. 552 F. Supp. at 670, 672-75. Next, he determined that the remedies
provided by the settlement were neither unreasonable nor unlawful on the grounds
that the adjustment of the eligibility list into zones did not violate either
state law or intervenors' federal constitutional rights and that the
settlement's racial preference procedures did not constitute an unconstitutional
quota. Id. at 675-77.

Intervenors challenge Judge Griesa's September 29, 1982 grant of conditional
intervention and his subsequent approval of the settlement. On November 16,
1982, we granted intervenors' motion for a stay of Judge Griesa's order and
expedited argument of the appeal.10 Thereafter, a third group of correctional
officers, consisting of Correction Sergeants not on the current eligibility list
but eligible to take the next examination for promotion to Correction
Lieutenant, sought leave to intervene for, inter alia, the limited purpose of
urging that a four year maximum life be imposed on the current eligibility list.
We denied the motion and instead granted these proposed intervenors leave to
file briefs as amici curiae.

Questions relating to the scope and nature of intervention are attaining
increasing importance in cases involving the approval of consent decrees or
stipulations which, in settling employment discrimination suits, create race--or
sex-conscious hiring or promotional remedies that affect non-complaining
employees. See, e.g., Stotts v. Memphis Fire Department, 679 F.2d 579 (6th
Cir.), cert. denied, --- U.S. ----, 103 S. Ct. 297, 74 L. Ed. 2d 280 (1982)
("Stotts II "); Culbreath v. Dukakis, 630 F.2d 15 (1st Cir. 1980); Airline
Stewards & Stewardesses Association, Local 550 v. American Airlines, Inc., 573
F.2d 960 (7th Cir. 1978) (per curiam), cert. denied, 439 U.S. 876, 99 S. Ct.
214, 58 L. Ed. 2d 190 (1979); Equal Employment Opportunity Commission v.
American Telephone & Telegraph Co., 556 F.2d 167 (3d Cir. 1977), cert. denied,
438 U.S. 915, 98 S. Ct. 3145, 57 L. Ed. 2d 1161 (1978). Judge Griesa permitted
the non-class member/non-minority intervenors to intervene, limiting their
intervention to objecting to the proposed settlement, as he held their
application was untimely. For different reasons, we agree that intervention
should have been so limited.

Intervenors' reason for challenging Judge Griesa's grant of conditional
intervention is their belief that, if afforded full intervention, they would
have equal standing with the original parties; thus, their consent to the
agreement would be required, and, in the event that they were dissatisfied with
the agreement, they could then force a trial at which they would be permitted to
defend the validity of Exam 36-808. We disagree.

As Judge Griesa suggested at the September 29, 1982 hearing, the sum of rights
possessed by an intervenor, even if granted unconditional intervention, is not
necessarily equivalent to that of a party in a case and depends upon the nature
of the intervenor's interest. See Boston Tow Boat Co. v. United States, 321 U.S.
632, 64 S. Ct. 776, 88 L. Ed. 975 (1944); Airline Stewards & Stewardesses
Association, Local 550 v. American Airlines, Inc., supra, 573 F.2d at 964; Equal
Employment Opportunity Commission v. American Telephone & Telegraph Co., supra,
556 F.2d at 173; see also Shapiro, Some Thoughts on Intervention Before Courts,
Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 727 (1968) [hereinafter
Shapiro]. Non-minorities do not have a legally protected interest in the mere
expectation of appointments which could only be made pursuant to presumptively
discriminatory employment practices. See Franks v. Bowman Transportation Co.,
424 U.S. 747, 775-78, 96 S. Ct. 1251, 1269-1270, 47 L. Ed. 2d 444 (1976); Stotts
II, supra, 679 F.2d at 583-84 & n. 3; Equal Employment Opportunity Commission v.
American Telephone & Telegraph Co., supra, 556 F.2d at 173. Accordingly, the
legal rights of non-minorities generally are not adversely affected by
reasonable and lawful race-conscious hiring or promotional remedies, whether
such remedies are imposed by court order following litigation on the merits or
are created by voluntary agreement between the parties. See Stotts II, supra,
679 F.2d at 583; Stotts v. Memphis Fire Department, 679 F.2d 541, 554, 556, 558
(6th Cir. 1982), cert. granted, --- U.S. ----, 103 S. Ct. 2451, 75 L. Ed. 2d
---- (1983) ("Stotts I "); Setser v. Novack Investment Co., 657 F.2d 962, 970
(8th Cir. 1981) (en banc); Prate v. Freedman, 583 F.2d 42, 47 (2d Cir. 1978);
Equal Employment Opportunity Commission v. American Telephone & Telegraph Co.,
supra, 556 F.2d at 173. It follows, therefore, that although non-minority third
parties allowed to intervene in cases which involve consent decrees or
settlement agreements implementing race-conscious hiring or promotional remedies
do have a sufficient interest to argue that the decree or agreement is
unreasonable or unlawful, their interest in the expectation of appointment does
not require their consent as a condition to any voluntary compromise of the
litigation. See Airline Stewards & Stewardesses Association, Local 550 v.
American Airlines, Inc., supra, 573 F.2d at 964; Equal Employment Opportunity
Commission v. American Telephone & Telegraph Co., supra, 556 F.2d at 173
(interests of a third party in a consent decree limited to appropriateness of
the remedy); see also Stotts II, supra, 679 F.2d at 584 n. 3 (dictum); Stotts I,
supra, 679 F.2d at 554; In re Fine Paper Litigation State of Washington, 632
F.2d 1081, 1087 (3d Cir. 1980); Kirkland Sergeants, 520 F.2d 420, 424 (2d Cir.
1975), cert. denied, 429 U.S. 823, 97 S. Ct. 73, 50 L. Ed. 2d 84 (1976);
Shapiro, supra, at 756 n. 157 ("It might ... be possible to hold that persons
allowed to intervene in a consent decree proceeding could argue ... that the
decree was inadequate but could not veto the entrance of the decree ....").
Indeed, a rule indiscriminately enabling all intervenors in these cases to veto
proposed compromises would seriously hamper efforts to settle Title VII cases,
see Airline Stewards & Stewardesses Association, Local 550 v. American Airlines,
Inc., supra, 573 F.2d at 963, thereby frustrating Congress's expressed
preference for achieving Title VII compliance by voluntary means. See, e.g.,
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 1017, 39 L.
Ed. 2d 147 (1974); Berkman v. City of New York, 705 F.2d 584, 597 (2d Cir.
1983).

United States v. City of Miami, 664 F.2d 435 (5th Cir. 1981) (en banc), is not
to the contrary. Reviewing the approval of a Title VII consent decree between
the government and the defendant-city, the panel decision in that case, 614 F.2d
1322 (5th Cir. 1980), aff'd in part and rev'd in part, 664 F.2d 435 (1981) (en
banc), held:

Unless the FOP [the named defendant-union] can demonstrate that it has been
ordered to take some action by the [consent] decree, or ordered not to take some
action, or that its rights or legitimate interests have otherwise been affected,
it has no right to prevent the other parties and the Court from signing the
decree.

Id. at 1329 (footnotes omitted) (emphasis supplied). None of the separate
opinions in the en banc decision expressly disputed this rule. See 664 F.2d at
447 (plurality opinion); id. at 452-53 (Gee, J., concurring in part and
dissenting in part); id. at 453 (Tjoflat, J., dissenting); id. at 462 (Johnson,
J., concurring in part and dissenting in part). Instead, contrary to the panel's
determination, a majority of the en banc court held that the consent decree did
in fact adversely affect the defendant-union's legally protected interests
"insofar as it deprive [d] the FOP and its members of the benefit of the
promotion procedure that was in effect a part of the FOP contract [i.e.,
collective bargaining agreement] with the [defendant] City." Id. at 447
(plurality opinion); see id. at 452-53 (Gee, J., concurring in part and
dissenting in part). Thus, the defendant-union's consent was required before the
decree could be approved not because of its mere status as a full defendant in
the case, but because the decree bound the defendant-union to a compromise which
altered its contractual rights.11

Intervenors contend, however, that like the defendant-union in the City of
Miami, they possessed specific contractual rights under their union's collective
bargaining agreement with the state which would be impaired by the settlement
agreement. We disagree. In City of Miami, the relevant contract provision,
entitled "Prevailing Benefits," provided in pertinent part:

All job benefits in effect at the time of the execution of this [A]greement
heretofore authorized ... [by ordinance], not specifically provided for or
abridged by this [A]greement, shall remain in full force and effect for the
duration of this Agreement.

The City and the Employee Organization will ... negotiate any proposed changes
in those rights and benefits not specifically covered by this Agreement,
provided however no changes shall be made except by mutual consent and any
impasse shall not be subject to the Impasse Resolution as provided for in [the
Agreement].

664 F.2d at 446 (emphasis supplied). Holding that this provision prevented the
defendant-city from altering all relevant, existing ordinances without the
defendant-union's consent, the court ruled that the defendant-union had a clear
contractual right in the existing Miami Civil Service Ordinance, which provided
for promotion procedures, and that the existence of this right prevented the
approval of a consent decree altering the promotion procedures without the
defendant-union's concurrence. Id. at 446-47; id. at 452 (Gee, J., concurring in
part and dissenting in part). The collective bargaining agreement in the present
case between intervenors' union and the state contains only one provision that
could possibly encompass promotion procedures. Entitled "Preservations of
Benefits," article 27 of the agreement provides:

With respect to matters not covered by this Agreement, the Employer will not
seek to diminish or impair during the term of this Agreement any benefit or
privilege provided by law, rule or regulation for employees without prior notice
to the Union and when appropriate, without negotiations with the Union provided,
however, that this Agreement shall be construed consistent with the free
exercise of rights reserved to the Employer by Article 6 of this Agreement.

(Emphasis supplied). Article 6, in turn, provides that " [e]xcept as expressly
limited by other provisions of this Agreement, all of the authority, rights and
responsibilities possessed by the Employer are retained by it." (Emphasis
supplied). The difference between these provisions and the City of Miami
provision is clear. Unlike the City of Miami provision, the plain language of
articles 6 and 27 leaves unimpaired the New York State CSC's authority over
examinations and eligibility lists, which affords it wide discretion to choose
and modify the procedures it sees fit to determine merit and fitness. See, e.g.,
Katz v. Hoberman, 28 N.Y.2d 530, 319 N.Y.S.2d 73, 267 N.E.2d 886 (1971); Metzger
v. Nassau County Civil Service Commission, 54 A.D.2d 565, 386 N.Y.S.2d 890 (2d
Dep't 1976). Accordingly, it cannot be said that these provisions give
intervenors a specific contractual right in the preservation of their positions
on Exam 36-808's eligibility list.12

The only interest, therefore, that intervenors possess is their mere expectation
of promotion pursuant to possibly discriminatory selection procedures. This
interest alone, though it entitles intervenors to be heard on the reasonableness
and legality of the agreement, is not so strong as to require their consent to
the agreement. Thus, Judge Griesa granted intervenors the intervention rights to
which their interest entitled them when he permitted them to intervene solely to
object to the settlement. See Airline Stewards & Stewardesses, Local 550 v.
American Airlines, Inc., supra, 573 F.2d at 964; Equal Employment Opportunity
Commission v. American Telephone & Telegraph Co., supra, 556 F.2d at 173.
Accordingly, we reject intervenors' challenge to Judge Griesa's grant of
conditional intervention without reaching the question of timeliness.13 We
note, however, that if intervenors' application was in fact untimely, it would
have been within Judge Griesa's discretion to deny them any form of
intervention. See, e.g., Stotts II, supra, 679 F.2d at 582-86; Culbreath v.
Dukakis, supra, 630 F.2d at 20-25.

III. THE PROPRIETY OF APPROVING THE SETTLEMENT AGREEMENT

It is settled that voluntary compliance is a preferred means of achieving Title
VII's goal of eliminating employment discrimination. See, e.g., Carson v.
American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S. Ct. 993, 998 n. 14, 67 L.
Ed. 2d 59 (1981); Alexander v. Gardner-Denver Co., supra, 415 U.S. at 44, 94 S.
Ct. at 1017; Berkman v. City of New York, supra, 705 F.2d at 597; Williams v.
City of New Orleans, 694 F.2d 987, 991 (5th Cir. 1982), reh'g granted, No.
82-3435 (Feb. 14, 1983); Patterson v. Newspaper & Mail Deliverers' Union, 514
F.2d 767, 771 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S. Ct. 3198, 49 L.
Ed. 2d 1203 (1976). Accordingly, voluntary compromises of Title VII actions
enjoy a presumption of validity,14 see, e.g., United States v. City of
Alexandria, 614 F.2d 1358, 1359, 1362 (5th Cir. 1980); Vulcan Society of New
York City Fire Department, Inc. v. City of New York, 96 F.R.D. 626, 629
(S.D.N.Y. 1983), and should therefore be approved "unless ... [they] contain [ ]
provisions that are unreasonable, unlawful, or against public policy." Berkman
v. City of New York, supra, 705 F.2d at 597; see also United States v. City of
Miami, supra, 664 F.2d at 441 (voluntary compromise affecting third parties
should be approved only if the court is "satisfied that the effect on them is
neither unreasonable nor proscribed") (plurality opinion). We have recently held
that "the district court's approval of a [Title VII] settlement should be upheld
unless it constituted an abuse of discretion." Berkman v. City of New York,
supra, at 597; see also Patterson v. Newspaper & Mail Deliverers' Union, supra,
514 F.2d at 771.

The probability of plaintiffs' success on the merits and the range of possible
relief are factors that courts have considered important in determining whether
a Title VII class action settlement agreement should be approved. See, e.g.,
Reed v. General Motors Corporation, 703 F.2d 170, 172 (5th Cir. 1983); Plummer
v. Chemical Bank, 668 F.2d 654, 660 (2d Cir. 1982); see also Carson v. American
Brands, Inc., supra, 450 U.S. at 88 n. 14, 101 S. Ct. at 998 n. 14; City of
Detroit v. Grinnell Corporation, 495 F.2d 448, 455 (2d Cir. 1974). See generally
7A C. Wright & A. Miller, Federal Practice and Procedure § 1797, at 230-31
(1972). We believe that when such a settlement implements race-conscious
remedies, these factors can be encompassed by two central inquiries: (1) whether
there is an existing condition which can serve as a proper basis for the
creation of race-conscious remedies; and (2) whether the specific remedies of
the compromise agreement are neither unreasonable nor unlawful. See Stotts I,
supra, 679 F.2d at 552-53; Setser v. Novack Investment Co., supra, 657 F.2d at
967 & n. 4. Intervenors' objections follow these two questions and can be
summarized as follows: (1) that before any race-conscious relief can be granted
to plaintiff class, there must be a judicial determination that Exam 36-808 and
its resulting eligibility list are not job-related and are therefore racially
discriminatory, i.e., a mere statistical showing of disproportionate impact does
not amount to a proper basis for settlement; and (2) that in any event, the
terms of the settlement agreement are unreasonable and unlawful.

A. The Proper Basis for Settlement.

Judge Griesa, finding that the statistical demonstration of the eligibility
list's disproportionate racial impact established a prima facie case of Title
VII discrimination, 552 F. Supp. at 670, determined that this case alone served
as a "sufficient showing of serious questions of racial discrimination under
Title VII" to justify a settlement containing race-conscious remedies. Id. at
675. Intervenors, however, argue that because the district court did not
consider the validity of Exam 36-808, its approval rested on an inadequate
foundation and thus should be reversed. Intervenors also assert that, in any
event, Judge Griesa erred in finding a prima facie case of discrimination. We
find no merit in these contentions.

1. The Prima Facie Case as the Proper Basis.

The gist of intervenors' first contention is that because § 703(h) of Title VII,
42 U.S.C. § 2000e-2(h) (1976), provides that a "professionally developed ability
test" is not unlawful even though it results in a disparate impact, a judicial
determination that Exam 36-808 was not job-related, and thus not a
"professionally developed ability test," see Griggs v. Duke Power Co., 401 U.S.
424, 436, 91 S. Ct. 849, 856, 28 L. Ed. 2d 158 (1971), was required before a
proper basis for settlement could exist. Intervenors' argument, however, would
turn Title VII law on its head since, as intervenors themselves concede,
job-relatedness is never presumed and only becomes an issue after it is
affirmatively raised by the defendant. See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981);
Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S. Ct. at 854. Moreover, if
intervenors' position were adopted, no Title VII testing case could be settled
by agreement until a judicial determination on the test's job-validity was made.
Such a result would seriously undermine Title VII's preference for voluntary
compliance and is not warranted. See Regents of University of California v.
Bakke, 438 U.S. 265, 364, 98 S. Ct. 2733, 2785, 57 L. Ed. 2d 750 (Brennan, J.,
concurring in part and dissenting in part); Equal Employment Opportunity
Commission v. Safeway Stores, Inc., 611 F.2d 795, 801 (10th Cir. 1979), cert.
denied, 446 U.S. 952, 100 S. Ct. 2918, 64 L. Ed. 2d 809 (1980).

Neither Title VII nor the Constitution prohibits compromise agreements
implementing race-conscious remedies which are agreed to prior to a judicial
determination on the merits. See United Steelworkers of America v. Weber, 443
U.S. 193, 207-08, 99 S. Ct. 2721, 2729, 61 L. Ed. 2d 480 (1979) (Title VII);
Regents of University of California v. Bakke, supra, 438 U.S. at 265, 301-02 &
n. 41, 98 S. Ct. 2733, 2753-54 n. 41, 57 L. Ed. 2d 750 (Powell, J., announcing
the judgment of the Court) (fourteenth amendment); see also Prate v. Freedman,
supra, 583 F.2d at 47 n. 4 ("Our decision in United States v. Wood, Wire & Metal
Lathers International Union, Local 46, [471 F.2d 408 (2d Cir.), cert. denied,
412 U.S. 939, 93 S. Ct. 2773, 37 L. Ed. 2d 398 (1973) ] ... foreclosed the
argument that preferential hiring relief may only be based on a formal finding
of past discrimination made after an evidentiary hearing."). In class actions,
the principal requirement for such a settlement is that there be a reasonable
basis for the compromise, i.e., some showing of probability of success on the
merits. See, e.g., Reed v. General Motors Corporation, supra, 703 F.2d at 172;
Plummer v. Chemical Bank, supra, 668 F.2d at 659-60; Setser v. Novack Investment
Co., supra, 657 F.2d at 968. When the settlement contains race-conscious relief
affecting third parties, some well substantiated claim of racial discrimination
against the plaintiff class is necessary "to ensure that new forms of invidious
discrimination are not approved in the guise of [race-conscious remedies]."
Setser v. Novack Investment Co., supra, 657 F.2d at 968; see also Valentine v.
Smith, 654 F.2d 503, 508 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S. Ct.
972, 71 L. Ed. 2d 111 (1981); Vulcan Society of New York City Fire Department,
Inc. v. City of New York, supra, 96 F.R.D. at 629.

We agree with Judge Griesa that a showing of a prima facie case of employment
discrimination through a statistical demonstration of disproportionate racial
impact constitutes a sufficiently serious claim of discrimination to serve as a
predicate for a voluntary compromise containing race-conscious remedies. See
Stotts I, supra, 679 F.2d at 552; Setser v. Novack Investment Co., supra, 657
F.2d at 968; Vulcan Society of Westchester County, Inc. v. Fire Department of
City of White Plains, 505 F. Supp. 955, 962 (S.D.N.Y. 1981).15 A statistical
showing of adverse impact creates a "presumption of Title VII discrimination,"
Guardians Association of New York City Police Department, Inc. v. Civil Service
Commission, 630 F.2d 79, 88 (2d Cir. 1980), cert. denied, 452 U.S. 940, 101 S.
Ct. 3083, 69 L. Ed. 2d 954 (1981), which, if unrebutted by any showing that the
contested practice was job-related, requires the court to enter a decree finding
unlawful discrimination. Id. at 88; see Texas Department of Community Affairs v.
Burdine, supra, 450 U.S. at 253-54, 101 S. Ct. at 1093-94; Albemarle Paper Co.
v. Moody, 422 U.S. 405, 418, 95 S. Ct. 2362, 2372, 45 L. Ed. 2d 280 (1975). Such
a finding, in turn, gives the district court "broad, although not unlimited,
power to fashion the [race-conscious] relief it believes appropriate." Berkman
v. City of New York, supra, 705 F.2d at 594. Accordingly, because a judicial
finding of unlawful discrimination under Title VII allowing the imposition of
race-conscious remedies can be made on the showing of a prima facie case when
the defendant fails to rebut the case, we think that an unrebutted prima facie
case is sufficient to serve as a proper basis for a settlement containing
race-conscious remedies when the defendant chooses to enter into a compromise.
See Prate v. Freedman, supra, 583 F.2d at 47. Simply stated, a defendant's
entrance into a compromise without rebutting an established prima facie case
amounts to an admission of unlawful discrimination for purposes of Title VII.16
Id. at 47; see also United States v. City of Miami, supra, 664 F.2d at 442.

2. The Prima Facie Case.

Intervenors next assert that, in any event, there existed no basis for the
settlement since Judge Griesa erred in finding a prima facie case of
discrimination. We disagree.

Judge Griesa determined that a prima facie case of employment discrimination had
been established after reviewing the statistics relevant to Exam 36-808 and its
eligibility list. 552 F. Supp. at 670. Finding that the difference between the
percentage of minorities actually appointed as of July 28, 1982 (9.0%) and the
percentage which would be expected to be appointed from a random selection
amounted to the level of 5.86 standard deviations,17 Judge Griesa ruled that
the statistics made out a prima facie case of Title VII discrimination under
Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977).
Castaneda stated that, in cases involving significant statistical samples, "if
the difference between the expected value [from a random selection] and the
observed number is greater than two or three standard deviations," a prima facie
case is established since the deviation then could only be regarded as caused by
some factor other than chance. Id. at 496 n. 17, 97 S. Ct. at 1281 n. 17.

Intervenors do not challenge Judge Griesa's use of the Castaneda test, but
rather, for the first time on appeal, they assert that he did not apply the law
to the appropriate set of facts. They contend that Judge Griesa's use of the
final test scores as a statistically significant sample was improper because
these scores reflected the addition of seniority and veterans' credits which may
have caused the uneven distribution of minorities on the eligibility list. We
disagree. A breakdown of the candidates' raw scores, see note 4 supra, shows
that the awarding of seniority and veterans' credits did not play an appreciable
role in creating the uneven distribution. Accordingly, Judge Griesa's use of the
final scores could not have resulted in error. See Kirkland Sergeants, supra,
520 F.2d at 425 (racially disproportionate impact need not be proven with
complete mathematical certainty); Vulcan Society of New York City Fire
Department, Inc. v. Civil Service Commission, 490 F.2d 387, 393 (2d Cir. 1973)
(same).

Intervenors next contend that the number of actual minority appointments does
not show disproportionate impact because this number does not account for the
number of minorities who refused offers of appointment. Again, if it was
improper for Judge Griesa not to consider this factor, such a measure was
harmless since, based on the figures offered by intervenors themselves, the
refusal rate for minorities was approximately equal to the refusal rate of
non-minorities.

Intervenors' final contention is that the disproportionate distribution on the
eligibility list was caused by the fact that a large number of the minority
candidates had recently been transferred to DOCS from the state's Office of Drug
Abuse and thus took Exam 36-808 with minimal DOCS experience. This contention is
also without merit. Although lack of experience may be relevant to the question
of a test's job-validity, it does not affect the question whether a prima facie
case has been properly established. See Albemarle Paper Co. v. Moody, supra, 422
U.S. at 425, 95 S. Ct. at 2375; Griggs v. Duke Power Co., supra, 401 U.S. at
433-36, 91 S. Ct. at 854-56. Moreover, differences in responsibility between
Office of Drug Abuse officers and officers working at minimum and medium
security DOCS facilities has been held to be negligible. Stokes v. New York
State Department of Correctional Services, No. 80 Civ. 1364 (S.D.N.Y. Sept. 27,
1982).

Accordingly, we agree with Judge Griesa that a sufficient basis existed for the
parties to enter into the settlement agreement.

B. The Reasonableness and Legality of the Settlement Agreement.

Because the settlement agreement was submitted for approval without any judicial
determination on the merits, the reasonableness and legality of the agreement
under federal law must be measured against the allegations of the complaint and
the relief which might have been granted had the case gone to trial.18 United
States v. City of Alexandria, supra, 614 F.2d at 1364. Simply stated, the
remedies provided by a Title VII settlement, especially those containing
race-conscious relief, must be substantially related to the objective of
eliminating the alleged instance of discrimination, see Stotts I, supra, 679
F.2d at 553; Valentine v. Smith, supra, 654 F.2d at 510; United States v. City
of Alexandria, supra, 614 F.2d at 1366; Detroit Police Officers' Association v.
Young, 608 F.2d 671, 696 (6th Cir. 1979), cert. denied, 452 U.S. 938, 101 S. Ct.
3079, 69 L. Ed. 2d 951 (1981), and must not unnecessarily trammel the interests
of affected third parties. See United Steelworkers of America v. Weber, supra,
443 U.S. at 208, 99 S. Ct. at 2729; United States v. City of Alexandria, supra,
614 F.2d at 1366.

The alleged discrimination was the administration of Exam 36-808 and the use of
its resulting eligibility list. As previously discussed, the entrance of
defendants into the settlement in the face of plaintiffs' unrebutted prima facie
case of discrimination amounts to an admission that the practice giving rise to
the prima facie case, i.e., Exam 36-808 and its eligibility list was in
violation of Title VII. We agree with Judge Griesa that the agreement's
provisions mandating the development of new selection procedures and adjusting
the current eligibility list are reasonable and legal since they substantially
relate to the objective of eradicating the discriminatory impact caused by Exam
36-808 and its eligibility list and are not overly oppressive to the interests
of non-minorities.

1. Future Selection Procedures.

The settlement agreement requires the parties to cooperate in the development of
new selection procedures for promotion to Correction Lieutenant and Correction
Captain, which are to be used after the exhaustion of the current eligibility
list. The agreement encourages abandonment of the written test as the sole
indicator of merit and urges the creation of racially neutral selection
procedures better designed to assess the candidates' abilities. This part of the
settlement, which intervenors do not challenge, operates solely to eliminate the
adverse effect of Exam 36-808 and to assure compliance with Title VII in the
future. Moreover, it does not trammel any interests of non-minorities. Thus, it
is a proper remedy under the circumstances. Berkman v. City of New York, supra,
705 F.2d at 595-96; Guardians Association of New York City Police Department,
Inc. v. Civil Service Commission, supra, 630 F.2d at 109.

2. Adjustment of Rank-Ordering into Zones.

Intervenors do, however, object to the settlement's provisions adjusting the
eligibility list's rank-ordering system into zones. They contend that the
modification of the list is not a proper Title VII remedy since it imposes a
procedure by which candidates will be appointed without regard to merit or
fitness and that, in any event, the positions of candidates on the eligibility
list constituted vested property rights which could not be altered without due
process of law. We find no merit in these contentions.19

Recognizing the fact that small differences between the scores of candidates
indicate very little about the candidates' relative merit and fitness, we have
held that as a means of insuring compliance with Title VII "the employer can
acknowledge his inability to justify rank-ordering and resort to random
selection from within either the entire group that achieves a properly
determined passing score, or some segment of the passing group shown to be
appropriate." Guardians Association of New York City Police Department, Inc. v.
Civil Service Commission, supra, 630 F.2d at 104; see also Vulcan Society of
Westchester County, Inc. v. Fire Department of City of White Plains, supra, 505
F. Supp. at 964. By the terms of the settlement, each zone contained an average
of 230 candidates whose final scores differed by no more than four points out of
a possible final score of 88, excluding adjustments for seniority and veterans'
credits. See note 6 supra. The size of the zones was based on a statistical
computation of the likely error of measurement inherent in Exam 36-808 and was
believed by the settling parties to be consistent with our discussion in
Guardians, supra, 630 F.2d at 102-03. Accordingly, the adjustment was a proper
means of insuring compliance with Title VII since, by creating a more valid
method to assess the significance of test scores, it eliminated the central
cause of the adverse impact, i.e., the rank-ordering system, while assuring
appointments on the basis of merit. In fact, the rank-ordering system
permissibly could have been modified to produce a result more disadvantageous to
intervenors. See, e.g., Guardians Association of New York City Police
Department, Inc. v. Civil Service Commission, supra, 630 F.2d at 104, 109
(employer may resort to random selection from within entire group that achieves
a minimal passing score); Vulcan Society of Westchester County, Inc. v. Fire
Department of City of White Plains, supra, 505 F. Supp. at 959, 964 (parties to
a settlement can change a ranking exam to a general qualifying exam, i.e.,
everyone who obtained a passing grade would be treated equally for purposes of
next step in hiring process). Thus, the creation of a tiered zone system which
preserves some of the results of a discriminatory test may have the least
detrimental effect on the interests of non-minority candidates who obtained high
test scores. These provisions are reasonable and legal.

Further, the adjustment of the rank-ordering system does not deprive intervenors
of any vested property right which they had under New York law. The New York
Court of Appeals has stated that a person on an eligibility list does not
possess "any mandated right to appointment or any other legally protectible
interest." Cassidy v. Municipal Civil Service Commission, 37 N.Y.2d 526, 529,
375 N.Y.S.2d 300, 337 N.E.2d 752 (1975). The only relevant state right
intervenors possess is the right to challenge the settlement on the grounds that
the manner in which it provides for appointments is unlawful, arbitrary, and
capricious or constitutes an abuse of discretion. Burke v. Sugarman, 35 N.Y.2d
39, 42, 358 N.Y.S.2d 715, 315 N.E.2d 772 (1974); Adelman v. Bahou, 85 A.D.2d
582, 583, 446 N.Y.S.2d 500, 502-03 (3d Dep't 1981). This right intervenors
exercised in the district court.

3. Race-Conscious Promotional Appointments.

The race-conscious appointment procedures envisaged by the settlement are not
unreasonable or illegal. Recognizing that full compliance with Title VII cannot
be realized until all the discriminatory effects of a challenged employment
practice are erased--in this case until the adverse impact resulting from the
disproportionate number of non-minority appointments already made is
remedied--we have held that interim race-conscious selection procedures that do
not have a disparate impact on any group protected by Title VII are appropriate
to bring a defendant into compliance with Title VII. Berkman v. City of New
York, supra, 705 F.2d at 595-96; Association Against Discrimination in
Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 278 (2d Cir. 1981), cert.
denied, 455 U.S. 988, 102 S. Ct. 1611, 71 L. Ed. 2d 847 (1982); Guardians
Association of New York City Police Department, Inc. v. Civil Service
Commission, supra, 630 F.2d at 108-09; see also Regents of University of
California v. Bakke, supra, 438 U.S. at 362, 98 S. Ct. at 2784 (Brennan, J.,
concurring in part and dissenting in part). Interim race-conscious selection
procedures do not have a disparate impact on any protected group when (1) they
mandate the appointment of members of the plaintiff-class who are victims of the
defendant's discrimination, and (2) they calculate the number of victims to be
appointed--in relation to the total number of interim appointees--by reference
to the percentage of the victims within the total applicant pool. Berkman v.
City of New York, supra, at 595-96; Guardians Association of New York City
Police Department, Inc. v. Civil Service Commission, supra, 630 F.2d at 109,
113. Because such interim selection procedures do not go beyond the simple
elimination of the challenged practice's disparate impact, they are not unlawful
quotas and are justified whenever a Title VII violation has occurred. Berkman v.
City of New York, supra, 705 F.2d at 596; Association Against Discrimination in
Employment, Inc. v. City of Bridgeport, supra, 647 F.2d at 278.

The agreement's race-conscious promotional procedures are similar to the lawful
remedies described above. They are interim in nature since they will end after
corrective measures are implemented and will then be followed by a valid
selection procedure. See Guardians Association of New York City Police
Department, Inc. v. Civil Service Commission, supra, 630 F.2d at 110. Moreover,
they do not have a disparate impact on any protected group. The agreement
provides, subject to certain noted exceptions, that future promotions will be
offered first to minority candidates until the ratio of minority appointments
equals 21%, a percentage approximately equal to the percentage of minority
candidates on the eligibility list. Because the appointment of only 32 minority
candidates is required to reach the 21% goal, see note 9 supra, the
non-minorities on the list will not be unduly barred from promotion. The burden
on non-minority candidates is further lessened by the fact that, regardless of
the 21% goal, no minority candidate in a lower zone will receive an appointment
until all candidates in the highest zone have been offered appointments. After
the 21% goal is reached, minority candidates will receive appointments in a
ratio of 1 to 4, reflecting the percentage of minorities on the eligibility
list. Accordingly, because for a period only members of the plaintiff class will
be offered appointments, and because the ratio of minority appointments will not
exceed the minority representation of the total candidates pool, the agreement's
race-conscious remedies are substantially related to and do not go beyond the
goal of eliminating Exam 36-808's adverse impact.

4. The Duration of the Eligibility List.

We turn finally to the contention presented by amici curiae that the portion of
the settlement which sets no discernible limit on the life of Exam 36-808's
eligibility list unnecessarily trammels the interests of all DOCS employees,
regardless of race, not on the current eligibility list but eligible to take the
next examination for promotion to Correction Lieutenant. Specifically, the
agreement calls for the list to continue "until every eligible on the 36-808
List has been offered an appointment and has been afforded a reasonable
opportunity to either accept or decline." Settlement Agreement art. VI(5) (c).
Judge Griesa, noting that " [n]one of the parties has offered any evidence as to
what length of time will be involved in this," 552 F. Supp. at 670, did not
reach any conclusion as to the probable life of the list.20 On appeal, all the
parties have offered speculative and often contradictory estimates of the
anticipated life of the list, with 3 or 4 years at the low end of the range and
16 years at the high end.

The argument of those employees represented by amici is grounded on New York
Civil Service Law § 56, which limits the duration of an eligibility list to four
years. See N.Y.Civ.Serv.Law § 56 (McKinney 1983). New York's purpose in placing
a cap on the duration of eligibility lists is to insure that all appointments to
the classified civil service be based on merit and fitness. See N.Y. Const. art.
V, § 6. The New York Court of Appeals has stated: "As time passes, [the
eligibility list's] value as a test of merit and fitness diminishes. Others may,
then, be better prepared and more fit to fill a position than those who are upon
the list." Hurley v. Board of Education, 270 N.Y. 275, 280, 200 N.E. 818 (1936).
Although the employees represented by amici are not currently on any eligibility
list, they may compete for promotion when they achieve the requisite
qualification. See Edgerton v. New York State Civil Service Commission, 84
A.D.2d 881, 444 N.Y.S.2d 731 (3d Dep't 1981).21 Accordingly, they contend that
their career interests in seeking a promotion will be unnecessarily trammeled if
the eligibility list is in effect more than four years. Cf. Vulcan Society of
New York City Fire Department, Inc. v. City of New York, supra, 96 F.R.D. at
631.

While courts must be sensitive to the interests of all affected third parties
before approving Title VII settlements, United Steelworkers of America v. Weber,
supra, 443 U.S. at 208, 99 S. Ct. at 2729, we see no reason to disturb Judge
Griesa's approval on this point since there is now no basis for determining
whether it will take more than four years for the current eligibility list to be
exhausted. However, since we treat court ordered stipulations implicating the
operations of state agencies as though they are injunctions issuing from the
district court, see Pena v. New York State Division for Youth, 708 F.2d 877, 880
(2d Cir. 1983); see also Carson v. American Brands, Inc., supra, 450 U.S. at 89,
101 S. Ct. at 999 (Title VII class settlements are to be treated as injunctions
for purposes of appeal); Plummer v. Chemical Bank, supra, 668 F.2d at 659
(same), employees represented by amici may, after a reasonable time and in light
of subsequent developments, move for modification of the settlement agreement in
the district court. See United States v. Swift & Co., 286 U.S. 106, 114-15, 52
S. Ct. 460, 462, 76 L. Ed. 999 (1932); New York State Association for Retarded
Children, Inc. v. Carey, 706 F.2d 956, 967 (2d Cir. 1983). Because New York law
allows the state to extend eligibility lists to a maximum of 4 years, Roske v.
Keyes, 46 A.D.2d 366, 363 N.Y.S.2d 21 (2d Dep't 1974); N.Y.Civ.Serv.Law § 56
(McKinney 1983), and because the statutory period does not begin to run until a
challenged list is approved by the court, Mena v. D'Ambrose, 44 N.Y.2d 428, 406
N.Y.S.2d 22, 377 N.E.2d 466 (1978), a reasonable time for the consideration of
any modification application will only commence four years from the date of the
district court's order.

Affirmed.

This is the second class action filed by Edward Kirkland and other minority
correctional officers challenging as racially discriminatory the promotional
selection procedures employed by DOCS. The first lawsuit, 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 "), involved a
successful challenge to the selection procedures used to promote correctional
officers to the rank of Correction Sergeant

A candidate's adjusted score was determined by adding 31 points to the number of
items answered correctly. See 4 N.Y.C.R.R. § 67.1(h). Seniority credits were
added on the basis of 1.0 point for each five years of service. See id. § 67.2.
Veterans were entitled to have 2.5 points, or 5.0 points if they were disabled,
added to their scores, but this credit could be claimed only once in an
officer's career. N.Y.Civ.Serv.Law § 85 (McKinney 1983)

The racial/ethnic breakdown of the eligibility list is as follows:

Position Percent Number Number Rank Nos. Minority Minority Non-Minority 1-107 5.6% 6 101 108-229 9.8% 12 110 230-298 16.0% 11 58 299-416 19.5% 23 95 417-525 29.4% 32 77 526-619 33.0% 31 63 620-672 47.2% 26 28

The raw scores showed the following racial/ethnic breakdown:

Score Percent Number Number Range Minority Minority Non-Minority 50-54 7.9% 7 82 48-49 10.1% 12 107 45-47 20.8% 42 160 43-44 26.0% 27 77 39-42 33.8% 53 104

In their complaint, plaintiffs had also alleged that because appointments made
from Exam 36-808's eligibility list determined who would be eligible to sit for
the examination for promotion to Correction Captain, that examination was
necessarily tainted by unlawful discrimination. The Correction Captain's
examination was administered on January 30, 1982, but as of August 20, 1982, the
date on which the settlement agreement was submitted to Judge Griesa, no
eligibility list resulting from that test had yet been certified

The breakdown of the zones is detailed in the following table:

Score Rank Number of Zone Range Range Eligibles 1 82.5 k 1-247 233 2 78.0-82.0 248-525 286 3 73.0-77.5 526-672 153

There are circumstances, such as when a candidate declines to accept an
appointment at a particular facility, which result in appointments being made
other than in strict rank-order

Although the basic features are contained in the settlement agreement, further
details were provided by counsel at the hearing on September 29, 1982 and are
contained in the minutes

Judge Griesa noted that since 225 appointments had been made as of September 29,
1982, of which 21 were minority appointments, the number of minority
appointments needed to reach the 21% ratio is small: "If 32 minority
appointments are made, the total appointments would be 257 of which 53 (or 21%)
would be minority." 552 F. Supp. at 671

Our November 16, 1982 order granting the stay incorporated a provision of the
appellees' proposed order, contained in their opposition papers, which provided:

[T]hat if provisional appointments are made, that they be made in accordance
with the terms of the settlement, that if the settlement agreement is upheld,
minority officers be given retroactive seniority credits.

On March 4, 1983, we granted the request of the parties, including the
intervenors, to modify the stay to read as follows:

[I]f the settlement agreement is upheld, all provisional Lieutenants appointed
pursuant to the stay granted by this Court, minority and non-minority, shall be
given permanent status in the title of Correction Lieutenant as of the date of
their provisional appointment pursuant to the stay for all purposes, including
probation.

The plurality opinion in City of Miami concluded as follows:

A party potentially prejudiced by a decree has a right to a judicial
determination of the merits of its objection. The party is prejudiced if the
decree would alter its contractual rights and depart from the governmental
neutrality to racial and sexual differences that is the fundament of the
fourteenth amendment in order to redress past discrimination.

664 F.2d at 447 (emphasis supplied).

Even if the collective bargaining agreement's provisions gave intervenors a
legal right in the existing promotional procedures, such a right would not allow
intervenors to veto the settlement unless it also was shown that New York law
permitted the authority of the CSC to be circumscribed by private agreement. See
United States v. City of Miami, supra, 664 F.2d at 447

The nature and effect of intervenors' interest would also be important to a
timeliness analysis, since the prejudice that intervenors would suffer from a
limitation of intervention is an element to be considered in determining whether
an application was timely under the circumstances. See, e.g., Garrity v. Gallen,
697 F.2d 452, 455 (1st Cir. 1983); Stallworth v. Monsanto, 558 F.2d 257, 264-66
(5th Cir. 1977); see also NAACP v. New York, 413 U.S. 345, 364, 93 S. Ct. 2591,
2602, 37 L. Ed. 2d 648 (1973); United States Postal Service v. Brennan, 579 F.2d
188, 191 (2d Cir. 1978)

Specifically, Title VII settlements are afforded a presumption of validity
because they "may produce more favorable results for protected groups than would
more sweeping judicial orders that could engender opposition and resistance,"
Vulcan Society of Westchester County, Inc. v. Fire Department of City of White
Plains, 505 F. Supp. 955, 961 (S.D.N.Y. 1981); see also Vulcan Society of New
York City Fire Department, Inc. v. City of New York, 96 F.R.D. 626, 629
(S.D.N.Y. 1983), and because they also reduce the cost of litigation, promote
judicial economy, and vindicate an important societal interest by promoting
equal opportunity. Stotts I, supra, 679 F.2d at 555

Both the Sixth and Eighth Circuits believe that a statistical imbalance falling
short of a prima facie case is sufficient to constitute a proper basis for
settlement. Stotts I, supra, 679 F.2d at 555 n. 10 (6th Cir.); Setser v. Novack
Investment Co., supra, 657 F.2d at 968 (8th Cir.)

Although the settlement agreement contains disclaimers of any admission of
unlawful discrimination, Settlement Agreement arts. I(5) & (12), the defendants
do not dispute the facts showing an adverse impact. Because such disclaimers are
used in many compromises of this nature to protect defendants from making
themselves vulnerable to large backpay awards, see United States v. City of
Alexandria, supra, 614 F.2d at 1365 n. 15, we construe the disclaimers to be
admissions that there is a statistical disparity together with a reservation of
the right to explain it in the future. Id.; see also Stotts I, supra, 679 F.2d
at 553 n. 10

In Guardians Association of New York City Police Department, Inc. v. Civil
Service Commission, supra, 630 F.2d at 86 n. 4, we defined the concept of
standard deviation as follows:

The standard deviation for a particular set of data provides a measure of how
much the particular results of that data differ from the expected results. In
essence, the standard deviation is a measure of the average variance of the
sample, that is, the amount by which each item differs from the mean. The number
of standard deviations by which the actual results differ from the expected
results can be compared to the normal distribution curve, yielding the
likelihood that this difference would have been the result of chance. The
likelihood that the actual results will fall more than one standard deviation
beyond the expected results is about 32%. For more than two standard deviations,
it is about 4.6% and for more than three standard deviations, it is about .03%.

Because state law must yield to federal law in Title VII cases, see Guardians
Association of New York City Police Department, Inc. v. Civil Service
Commission, supra, 630 F.2d at 105; 42 U.S.C. § 2000e-7 (1976), we need not
consider whether the settlement agreement violates state law

We also find no merit in intervenors' oblique argument that the adjustment of
the eligibility list into zones by itself amounts to an unlawful quota. Because
the mere creation of zones in no way requires that a minimum number of
appointments be given to minority candidates, it cannot be said that any
race-conscious preference is established. Kirkland Sergeants, 628 F.2d 796, 798
(2d Cir. 1980), cert. denied, 450 U.S. 980, 101 S. Ct. 1515, 67 L. Ed. 2d 815
(1981)

The issue of the eligibility list's duration was not argued in the hearings
before Judge Griesa as no one representing the rights of employees not on the
list participated in the hearings

Edgerton v. New York State Civil Service Commission, 84 A.D.2d 881, 444 N.Y.S.2d
731 (3d Dep't 1981), was a state Article 78 application brought by DOCS
Correction Sergeants, some of whom are intervenors in this action, which
successfully compelled CSC to administer Exam 36-808 on October 3, 1981

Some case metadata and case summaries were written with the help of AI, which
can produce inaccuracies. You should read the full case before relying on it for
legal research purposes.

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