Edward L. KIRKLAND, Joseph P. Bates, Sr., Arthur E. Suggs,
each individually and on behalf of all others
similarly situated, Plaintiffs-Appellees,
v.
The NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES;
Thomas A. Coughlin, III, individually and in his capacity as
Commissioner of the New York State Department of
Correctional Services; the New York State Civil Service
Commission; Joseph Valenti, individually and in his
capacity as President of the New York State Civil Service
Commission and Civil Service Commissioner; Josephine
Gambino and James McFarland, each individually and in
his/her capacity as Civil Service Commissioner, Defendants-Appellees,
Frederick E. Althiser, et al., Intervenors-Appellants-Appellees,
Nos. 828, 909, Dockets 82-7830, 82-7874.
United States Court of Appeals,
Second Circuit.
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 violаtion 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.
I. BACKGROUND
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 thе 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 Corrеction 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 extеnsive 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, а 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 fоr 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,
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 сlass 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,
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.
II. THE QUESTION OF CONDITIONAL INTERVENTION
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 Firе Department,
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,
United States v. City of Miami,
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
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 authоrized ... [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].
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,
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,
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.,
The probability of plaintiffs' success on the merits and the range of possiblе 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,
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,
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.,
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,
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,
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.
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,
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,
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,
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 Cоrrection 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,
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,
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,
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 realizеd 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,
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,
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,"
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,
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,
Affirmed.
Notes
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,
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 officеr'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."
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 Liеutenant 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.
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,
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 whethеr an application was timely under the circumstances. See, e.g., Garrity v. Gallen,
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,
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,
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,
In Guardians Association of New York City Police Department, Inc. v. Civil Service Commission, supra,
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 fаll 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,
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,
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,