Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 1 of 19

DELORA L. KENNEBREW Chief JOHN P. BUCHKO Special Litigation Counsel KRIS HAMMOND Trial Attorney Employment Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, NW PHB 4500 Washington, DC 20530 Telephone: (202) 305-1528 Facsimile: (202) 514-1005 John.Buchko@usdoj.gov

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK LEE ALEXANDER, et al. Plaintiffs, v. VICTOR S. BAHOU, et al. Defendants. Civil Action No.: 78-cv-392; 80-cv-53

UNITED STATES OF AMERICA, Plaintiff, v. CITY OF SYRACUSE, et al. Defendants.

THE UNITED STATES MEMORANDUM IN SUPPORT OF ITS MOTION FOR ADDITIONAL RELIEF

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 2 of 19

Table of Contents I. SUMMARY .............................................................................................................................. 1 II. BACKGROUND....................................................................................................................... 2 A. Roles of the City, the County, and the State in the Selection of Syracuse Firefighters and Police Officers ........................................................................................................... 2 The Syracuse Fire Department ......................................................................................... 3 1. Demographics and Hiring ........................................................................................... 3 2. Results of the 2012 Entry-Level Firefighter Examination ........................................... 3 C. The Syracuse Police Department ..................................................................................... 4 1. Demographics and Hiring ........................................................................................... 4 2. Results of Recent Entry-Level Police Officer Examinations........................................ 4 D. Evidence Regarding the Validity of the Commissions Examinations ............................ 5 1. The United States Requests for Information Regarding Validity ............................... 5 2. Evaluation of the Validity Evidence Produced by NYSDC .......................................... 6 III. ARGUMENT ............................................................................................................................ 8 A. The Court Should Order the Development of Lawful Exams Because the Exams at Issue Have Had a Statistically-Significant Disparate Impact on African Americans ...... 9 The Court Should Order the Development of Lawful Exams Because the Exams at Issue Have Not Been Properly Validated ...................................................................... 10 The Court Should Reject the Commissions Expected Argument that the Parties and the Court have No Effective Mechanism for Reviewing the Validity of the Exams........... 11

B.

B.

C.

IV. CONCLUSION ...................................................................................................................... 15

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 3 of 19

Table of Authorities Cases Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1146-47 (2d Cir. 1991) ........ 10 Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977).................................................................... 9 Connecticut v. Teal, 457 U.S. 440, 446 (1982)............................................................................... 9 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) ................................................................... 8 Guardians Assn of New York City Police Dept, Inc. v. Civil Serv. Commn, 630 F.2d 79, 88 (2d Cir. 1980) ............................................................................................................................. 7, 8, 9 Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14 (1977) ....................................... 10 Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003) ....................................................................... 3 Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 798 (3d Cir. 1991) ........................ 9 United States v. Brennan, 650 F.3d 65, 90 (2d Cir. 2011).............................................................. 8 United States v. City of New York (FDNY), 637 F.Supp.2d 77, 98-99 (E.D. N.Y. 2009) ................................................................................................................. 3, 7, 10 Vivenzio v. City of Syracuse, 611 F.3d 98, 104 (2d Cir. 2010) .................................................... 14 Waisome v. Port Authority of New York and New Jersey, 948 F.2d 1370, 1374-75 (2d Cir. 1991) ................................................................................................................................ 8 Statutes 42 U.S.C. 2000e et seq. ................................................................................................................ 1 42 U.S.C. 2000e-2(k)(1)(A) ......................................................................................................... 7 42 U.S.C. 2000e-2(k)(1)(A)(i) ..................................................................................................... 9 42 U.S.C. 2000e-2(k)(1)(A)(ii) .................................................................................................... 9 42 U.S.C. 2000e-2(k)(1)(C) ......................................................................................................... 9
ii

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 4 of 19

Rules Local Rule 7.1(b)(2)........................................................................................................................ 1 Regulations 29 C.F.R. 1607.4(D) .................................................................................................................. 10 29 C.F.R. 1607.5(A) .................................................................................................................... 7 29 C.F.R. 1607.5(B) ..................................................................................................................... 7

iii

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 5 of 19

The United States respectfully requests that this Court order additional relief in this matter by requiring Defendant New York State Civil Service Commission (Commission) to develop and institute lawful written examinations to be used in the City of Syracuses (Syracuse) selection of entry-level firefighters and police officers. 1

I.

SUMMARY

The March 27, 1980 Consent Decree in this case imposes two main affirmative obligations on Defendants: (1) the Commission must develop and implement lawful examinations to be used by Syracuse for the selection of firefighters and police officers; 2 and (2) Syracuse must use good faith efforts, including interim hiring preferences, to achieve a long-term goal of firefighter and police officer workforces that approximately represent the availability of interested and qualified African Americans in the Syracuse labor market. See 3/27/1980 Consent Decree at 9-10, 12, 17-18 (Attachment A). 3 The Decree further provides that the Court may grant additional relief if the examinations used have an adverse impact on African Americans and do not accurately measure potential job performance. Id. at 10. Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (Title VII), use of an examination that results in disparate impact on the basis of race is unlawful unless it is shown to be job related and consistent with business necessity. Recent
1

The United States recognizes that Local Rule 7.1(b)(2) requires any party seeking to file a non-dispositive motion to first request a court conference with the assigned magistrate judge. The United States has not done so in this case because there is no magistrate judge assigned to this case.
2

The President of the three-member Commission heads the New York State Department of Civil Service (NYSDCS), which, among other things, develops, validates, and implements the civil service examinations on behalf of the Commission. Although the Consent Decree also addressed the underrepresentation of women among Syracuse firefighters and police officers, this motion does not discuss that aspect of the Decree because the written examinations at issue did not have a disparate impact on women.

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 6 of 19

entry-level firefighter and police officer examinations, developed by the New York State Department of Civil Service (NYSDCS) on behalf of the Commission and administered to applicants for firefighter and police officer jobs with Syracuse, clearly have resulted in a statistically-significant disparate impact on African-American test takers. The United States and its test development and validation expert therefore reviewed the available information relevant to the job-relatedness (i.e., validity) of the firefighter examination and concluded that it does not establish that the exam accurately measures potential job performance. To the contrary, the information supports a conclusion that the exam was not developed to accurately measure potential job performance. The Commission, acting through NYSDCS, has refused to provide any additional evidence of the examinations validity, essentially contending that an inconsistent provision in the Consent Decree excuses it from ever having to show the parties or the Court that its examinations are valid. Therefore, the United States respectfully requests, as additional relief, an order requiring that, by a date certain, the Commission develop and institute entry-level firefighter and police officer written examinations that comply with Title VII. 4 II. A. BACKGROUND

Roles of the City, the County, and the State in the Selection of Syracuse Firefighters and Police Officers

Each of the Defendants in this case plays a unique role in the selection of Syracuses entry-level safety officers. As the Consent Decree notes, civil service laws require that the Commission develop and provide the written examinations applicants must take to be considered for firefighter and police officer positions with the City. Consent Decree at 3. Onondaga
4

The United States conferred with the other parties prior to this filing. The City of Syracuse consents, in part, to the relief requested, i.e., that the Court evaluate, based on a full evidentiary record, whether the current firefighter and police officer written examinations are compliant with Title VII, and order remedial measures if it determines such measures are necessary based its findings. The City takes no position at this time with respect to the validity of the evidence provided by the United States in support of its motion nor the conclusions they advocate therefrom.

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 7 of 19

County, as personnel officer for the City, administers the exams and, together with the Commission, certifies lists of eligible candidates for Syracuse. Id. Candidates are listed in rankorder based on their scores on the exams. Syracuse considers candidates in the order in which they are listed on the eligible lists, and selects firefighter and police officer candidates based, in part, on their scores on the exams. Syracuse may not consider any candidates who fail the exam. The Consent Decree requires the Commission to provide examinations that accurately measure an applicants ability to perform on the job. Id. at 10. 5 B. The Syracuse Fire Department 1. Demographics and Hiring

Syracuse employs 349 firefighters of all ranks, 58 (16.6%) of whom are AfricanAmerican. African Americans hold 20.2% of the entry-level firefighter positions, 8.7% of the Lieutenant positions, and 1.6% of the Captain positions. In 2010 and 2011, when the City last hired firefighters, 11 (20%) of the 55 firefighters hired were African Americans. 2. Results of the 2012 Entry-Level Firefighter Examination

Onondaga County administered the most recent written examination for the entry-level firefighter position in March 2012. Three hundred and forty-nine (91.6%) of the 381 white test takers passed the exam, while only 116 (65.5%) of the 177 African-American test takers passed. This disparity in pass rates is equivalent to 7.39 units of standard deviation. 6

The Decree further provides that Syracuse which initiated the lawsuit because it believed the Commission had not properly validated the written examinations then being used may grant hiring priority to African Americans in order to meet the goals of the Decree. Consent Decree at 3, 9-10. The United States enforcement of the Decree has focused exclusively on the provisions requiring lawful exams. As a result, this motion does not address the Decrees hiring priority provisions.

As explained, infra, courts generally consider a disparity to be statistically significant if it is equivalent to at least two units of standard deviation. See Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003); United States v. City of New York, 637 F.Supp.2d 77, 93-94 (E.D. N.Y. 2009). 3

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 8 of 19

C.

The Syracuse Police Department 1. Demographics and Hiring

Syracuse employs 462 police officers, 32 (6.9%) of whom are African-American. Aside from the Police Chief, no African American holds a position above entry-level police officer. Syracuse has not hired police officers since 2011, when seven (26.9%) of the 26 officers hired were African-American. 2. Results of Recent Entry-Level Police Officer Examinations

Onondaga County conducted four entry-level police officer exam administrations in 2011 and 2012. As shown in the table below, the pass rate of white test takers on each administration was between 85.8% and 93.6%. In contrast, the African-American pass rate ranged from 55.6% to 75.8%. For each administration, the disparity in pass rates was statistically significant, equivalent to between 3.21 and 6.40 units of standard deviation. Test Date White Test Takers White Test Passers (%) 548 (85.8%) 366 (92.9%) 291 (89.8%) 306 (93.6%) African American Test Takers 95 27 30 33 African American Test Passers (%) 57 (60%) 15 (55.6%) 21 (70.0%) 25 (75.8%) Units of Standard Deviation 6.15 6.40 3.21 3.54

April 2011 Nov. 2011 June 2012 Nov. 2012

639 394 324 327

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 9 of 19

D.

Evidence Regarding the Validity of the Commissions Examinations 1. The United States Requests for Information Regarding Validity

For more than two years, the United States has requested from NYSDCS, the exams developer, information about the validity 7 of the entry-level firefighter and police officer examinations. Initially, the United States asked for copies of the firefighter examination and information related to the development and validation of that exam. After NYSDCS provided some general information about the development of the examination, the United States asked for additional information related to the development and validation of the firefighter exam used in 2009. See 3/25/2011 letter from M. Worden to K. Hammond (Attachment B); 6/9/2011 letter from K. Hammond to M. Worden (Attachment C). NYSDCS objected on several grounds, including its assertion that the request was onerous and did not comply with the provisions of the Consent Decree. See 7/8/2011 letter from M. Worden to K. Hammond (Attachment D). NYSDCS contended that it had to provide validity evidence only if the United States established that the examination at issue has an adverse impact on the hiring of African Americans in Syracuse, and the adverse impact precludes Syracuse from meeting the goals set forth in the Consent Decree. Id. After further discussion, NYSDCS provided a limited response to the United States request. The response included the 2009 examination test guide, the 2009 examination announcement used by Syracuse, and a Job Analysis Report: Entry-level Fire Titles in New York State Municipalities. 8/3/2011 letter from M. Worden to K. Hammond (Attachment E). According to NYSDCS, the report describes the development and content validation of the 2009 firefighter examination. Id.
7

In the employment testing context, validity and job-relatedness are used synonymously. Both terms refer to the extent to which an individuals performance on an exam predicts the individuals performance on the job i.e., in the words of the Consent Decree, accurately measure[s] potential job performance.

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 10 of 19

In September 2011, the United States asked NYSDCS for preliminary information on the development and content validity of the examinations used in hiring entry-level police officers. 9/26/2011 letter from K. Hammond to M. Worden (Attachment F). In October 2011, NYSDCS declined to provide any information, asserting that specific conditions in the Consent Decree provision requiring it to provide evidence of validity had not been met. 10/27/2011 letter from M. Worden to K. Hammond (Attachment G). Specifically, NYSDCS contended that the United States request was untimely because it was not made within ten days of the establishment of an eligible list, and that the United States had not shown that the exam precluded the City from meeting the Consent Decrees hiring goals. Id. In May 2013, the United States renewed its request for validity information related to the development and validation of the firefighter examination used in March 2012 and the police officer examinations used in 2011 and 2012. 5/16/2013 letter from K. Hammond to M. Worden (Attachment H). NYSDCS declined to provide any additional information. 6/12/2013 letter from M. Worden to K. Hammond (Attachment I). The United States also sought validity evidence from Syracuse, but was told that the City does not have such evidence for the Statedeveloped examinations. 5/1/2013 letter from K. Hammond to M.A. Doherty (Attachment J); 6/6/2013 e-mail from M.A. Doherty to K. Hammond (Attachment K). 2. Evaluation of the Validity Evidence Produced by NYSDCS

As described in greater detail in the attached sworn declaration of Dr. David P. Jones, the information provided by NYSDCS related to the 2009 firefighter examination 8 does not demonstrate that that examination accurately measures potential job performance, as required by the Consent Decree, or that use of the examination is, in the language of Title VII, job
8

Dr. Jones could not review validity evidence regarding the police officer examination because NYSDCS declined to provide any information related to that exam. 6

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 11 of 19

related . . . and consistent with business necessity, 42 U.S.C. 2000e-2(k)(1)(A). See Declaration of Dr. David P. Jones (Attachment L). Dr. Jones is an industrial/organizational psychologist with more than three decades experience developing tests, including tests for public safety positions, and assessing test validity. Because NYSDCS apparently relies on content validity, Dr. Jones focused on the clear professional standards used in evaluating the content validity of a selection device. 9 Dr. Jones found that NYSDCS failed to meet the most basic requirements for demonstrating content validity. According to Dr. Jones, an appropriate job analysis is the basis of a showing of content validity. In Dr. Jones opinion, the Job Analysis Report reflected a poorly constructed questionnaire and a focus on job knowledge areas that is improper for an entry-level examination. In fact, according to Dr. Jones, the job analysis was inappropriately oriented toward precisely the kinds of skills and abilities that would be expected to increase an examinations disparate impact. These basic flaws in the job analysis would make it impossible to establish content validity for the written examination. For example, Dr. Jones explained that proof of content validity requires a showing that the content of the exam is representative of the content of the firefighter job. However, because of the flawed job analysis, NYSDC has not properly established the content of the firefighter job. Thus, the Commission cannot show that the content of the exam is representative of the content of the job. In sum, Dr. Jones identified five requirements for a showing of content validity. 10 He found that the evidence provided failed to meet any of those five requirements. Dr. Jones
9

The Uniform Guidelines recognize three types of evidence for establishing test validity: criterion-related, content, and construct validity. See 29 C.F.R. 1607.5(A) & (B); Guardians Assn of the New York City Police Dept, Inc. v. Civil Service Commn, 630 F.2d 79, 82 (2d Cir. 1980); United States v. City of New York, 637 F.Supp.2d 77, 10809 (E.D. N.Y. 2009).

Proper content validation of an examination must demonstrate the exam meets five requirements: (1) the test developers conducted a suitable job analysis, (2) the test developers used reasonable competence in constructing 7

10

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 12 of 19

concluded that the information he reviewed provided no reliable evidence that the examination had been validated to accurately measure potential job performance and much to suggest it had not been. III. ARGUMENT

Because the Commissions examinations have had a statistically significant adverse impact on African Americans and do not accurately measure potential job performance as required by Title VII and the Consent Decree, the United States requests that the Court order additional relief pursuant to the Consent Decree. Specifically, the United States requests that the Court order the Commission to develop and institute entry-level firefighter and police officer examinations that comply with Title VII by a date certain to be determined by the Court following consultation with the parties. It has been well-settled for over forty years that Title VII prohibits, not only overt and intentional discrimination, but also discrimination resulting from employment practices that are facially neutral, but which have a disparate impact because they fall more harshly on a protected group than on other groups and cannot otherwise be justified. Waisome v. Port Authority of New York and New Jersey, 948 F.2d 1370, 1374-75 (2d Cir. 1991). See also Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); United States v. Brennan, 650 F.3d 65, 90 (2d Cir. 2011). As codified by the Civil Rights Act of 1991, Title VII provides that an employment practice that causes a disparate impact on the basis of race or another protected characteristic is

the test itself, (3) the content of the test is related to the content of the job, (4) the content of the test is representative of the content of the job, and (5) the scoring system used with the test usefully selects from among the applicants those who can better perform the job. Guardians Assn of the New York City Police Dept v. Civil Service Commn, 630 F.2d 79, 95 (2d Cir. 1980). 8

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 13 of 19

unlawful if the employer fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity. 42 U.S.C. 2000e-2(k)(1)(A)(i). 11 A. The Court Should Order the Development of Lawful Exams Because the Exams at Issue Have Had a Statistically-Significant Disparate Impact on African Americans

The Consent Decree entered in this case requires that Syracuse comply with Title VII in its hiring of firefighters and police officers. Consent Decree at 10. To allow Syracuse to do so while continuing to use written examinations developed by the Commission, the Decree also requires that the Commission develop and implement examinations that are job related, i.e., that accurately measure an applicants ability to perform on the job. Id. In considering whether use of an examination has resulted in a disparate impact on any group, statistical analyses are used to determine whether there is a significant disparity between the performance of that group on the exam and the performance of the majority or favored group. See Connecticut v. Teal, 457 U.S. 440, 446 (1982); see also Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 798 (3d Cir. 1991). Generally, statisticians, testing experts, and social scientists consider a disparity to be statistically significant if the probability of a disparity so large occurring by chance is 5% or less. The 5% probability level is equivalent to a difference of approximately two (1.96) units of standard deviation. See Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977); Guardians Assn of New York City Police Dept, Inc. v. Civil Serv. Commn, 630 F.2d 79, 88 (2d Cir. 1980). Thus, disparities equivalent to more than two or three units of standard deviation have been accepted by the courts as sufficient to establish a prima facie case

If the employer meets its burden of establishing job relatedness and business necessity, the party challenging the employment practice can still prevail by showing that there is a less discriminatory alternative employment practice available. 42 U.S.C. 2000e-2(k)(1)(A)(ii) and (C). Because the Commission has produced no evidence that could establish job relatedness and business necessity, this memorandum does not address the existence of alternative employment practices.

11

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 14 of 19

of disparate impact. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14 (1977). As shown in Sections II.B & II.C, above, for each administration of the exams at issue, the disparity between the rate at which African Americans passed the exam and the rate at which whites passed the exam is above the two or three standard deviation standard. Indeed all disparities were equivalent to somewhere between 3.21 and 7.39 units of standard deviation. Thus, there can be no doubt that the examinations have a statistically significant disparate impact on African American test takers. 12 B. The Court Should Order the Development of Lawful Exams Because the Exams at Issue Have Not Been Properly Validated

Confronted with this evidence of disparate impact, NYSDCS, as the exams developer, was asked to produce information sufficient to demonstrate that the examinations at issue had been properly validated, i.e., shown to be job related and consistent with business necessity. Notwithstanding their obligation under the Decree to develop exams that accurately measure an applicants ability to perform on the job, the Commission provided little evidence to support the

Some courts also consider the practical significance of a disparity in determining whether an employment practice results in disparate impact. See United States v. City of New York (FDNY), 637 F.Supp.2d 77, 98-99 (E.D. N.Y. 2009). One measure of practical significance that is sometimes used is the four-fifths or 80% rule suggested as a rule of thumb by the Uniform Guidelines on Employment Selection Procedures (Uniform Guidelines). See 29 C.F.R. 1607.4(D). According to the Uniform Guidelines, a protected groups selection (or passing) rate that is below 80% of the group with the highest selection (or passing) rate would generally be regarded by the Federal enforcement agencies as evidence of adverse impact. 29 C.F.R. 1607.4(D); see Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1146-47 (2d Cir. 1991). Applying the 80% rule to the pass rates here, each of the exams at issue resulted in a practically significant adverse impact upon African Americans. The March 2012 entry-level firefighter examination resulted in a 91.6% pass rate for white test takers and a 65.5% pass rate for African American test takers. A comparison of those two passing rates clearly fails the 80% Rule (65.5/91.6 = .715 or 71.5%). Similarly, when the four administrations of the entry-level police officer examination are combined, the results violate the 80% rule, with the ratio of the African American and white pass rates equal to .711 or 71.1% (63.8/89.7). Although a single administration of the police officer exam barely passed the 80% rule, the exam in the aggregate fails the 80% rule. Moreover, the 80% rule is not an exclusive means of proof and does not control the outcome where a more reliable showing of statistically significant disparity has been made. FDNY, 637 F.Supp.2d at 97-98.

12

10

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 15 of 19

validity of the firefighter examination. It provided no evidence related to the police officer examination. 13 As discussed above and in greater detail in the attached declaration, Dr. Jones reviewed the information provided and concluded that, given the flaws in its test development procedures, including its job analysis, the Commission cannot establish that the firefighter examination is valid. See Declaration of Dr. David P. Jones (Attachment L). In fact, Dr. Jones concluded that the information provided suggests that the firefighter examination does not accurately measure potential job performance as required by the Decree. C. The Court Should Reject the Commissions Expected Argument that the Parties and the Court have No Effective Mechanism for Reviewing the Validity of the Exams.

Despite this evidence, given NYSDCSs response to the United States requests for validity information, the Commission may argue in essence that the Consent Decree does not provide any effective mechanism for the Court to review the validity of the examinations. Specifically, the Commission may argue that certain provisions in paragraph 14(a) of the Decree mean that the Commission cannot be required to provide evidence of an examinations validity, except under very narrow circumstances. 14 The Commissions reliance on these provisions is misplaced for several reasons.

It should not be onerous for the Commission to provide information on the validity of the firefighter and police officer examinations. Indeed, in making its requests for such information, the United States specifically identified for NYSDCS information that the United States and its expert wished to review. Moreover, such information should be readily available to the Commission. If the Commission followed professional test development and validation procedures, the Commission should have in its possession information regarding the validity of the examinations.
14

13

Paragraph 14(a) provides, in relevant part: The Commission shall develop and institute [] civil service examinations for the entry-level positions of police officer and firefighter which comply with all applicable state and federal laws, rules and regulations. In the event it is established that any civil service examination has an adverse impact on blacks and/or females which is contrary to the provisions of the Uniform Guidelines (consistent with the requirements of Title VII) and which precludes the City from meeting the interim hiring goals set forth here, the Court, upon application of any party filed within 10 days of the certification of an eligible list, shall require the 11

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 16 of 19

First, the United States is not requesting additional validity evidence. Rather, the United States requests that the Court order the Commission to develop and institute new lawful examinations for the selection of entry-level firefighters and police officers. That request is based on the clear, statistically-significant disparate impact of the examinations and on Dr. Jones review of the validity information provided. That information, according to Dr. Jones, indicates that the firefighter exam was not properly validated. Moreover, the Court should reject any argument by the Commission that paragraph 14(a) of the Consent Decree leaves the Court with no way to determine whether the Commission has developed valid examinations, as required by the Decree. Paragraph 14(a) of the Decree provides for a determination by the Court regarding the validity of an examination after certification of an eligibility list for use by Syracuse. Under the interpretation of paragraph 14(a) apparently asserted by NYSDCS in response to the United States previous requests for validity information, however, the determination provided for in paragraph 14(a) comes into play only if the United States first: (1) applies to the Court for an order requiring the Commission to produce such evidence within ten days of the certification of an eligible list (the ten-day requirement); and (2) proves that the disparate impact of the examination at issue precludes Syracuse from meeting its hiring goal (the goal-preclusion requirement). As explained below, acceptance of this interpretation would render the Court toothless with respect to some of the most important requirements of the Decree. With respect to the ten-day requirement that the Commission apparently seeks to impose, the Court would have no way to determine whether the Commission has developed valid

Commission to provide evidence within 45 days that the examination is validated within the meaning of the Uniform Guidelines. If the Commission cannot ultimately demonstrate that the examination is job-related in accordance with the Uniform Guidelines, this Court shall take such action as appropriate under the circumstances to eliminate its discriminatory adverse impact upon blacks and/or females. 12

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 17 of 19

examinations unless the United States first made application to the Court within 10 days of the certification of an eligible list. Under the Decree, however, the United States has no way of knowing when an eligible list will be certified. An eligible list is certified only when Syracuse requests one, and Syracuse requests an eligible list only when it is prepared to hire. And the Decree contains no requirement that the United States be notified when Syracuse is prepared to hire, when Syracuse requests an eligible list, or when Onondaga County certifies an eligible list. Thus, if the Court were to accept an argument that paragraph 14(a) provides the only mechanism for an evaluation of validity, Defendants could prevent the Court from determining whether the Commission has complied with the Decrees requirement to develop valid examinations simply by not informing the United States of the events that trigger the procedures of paragraph 14(a). Even if the ten-day requirement could be met, the goal-preclusion requirement that the Commission seeks to impose on any determination of validity by the Court would make it virtually impossible for the Court to review the Commissions compliance with the Decree. The Consent Decree directs Syracuse to give a hiring preference to African-American candidates to the extent necessary to meet the . . . goal (i.e., to overcome the disparate impact of the examination). Consent Decree at 12-13. Consequently, unless an examination had a disparate impact much more severe than is required to establish a violation of Title VII or the Decree by, for example, failing nearly every African-American test taker the Commissions obligation to produce validity information might never be triggered. As long as the Decree allows Syracuse to hire African Americans who pass an exam out of rank-order, Syracuse can meet the Decrees goals even if African Americans pass the exam at a significantly lower rate than whites. This would leave the Court with no way to evaluate the validity of examinations, such as those discussed above, that indisputably result in disparate impact severe enough to violate Title VII

13

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 18 of 19

and the Decree. It simply makes no sense for the Decree to require that the Commission develop and implement valid examinations, yet to provide no mechanism for the Court to determine whether the Commission has complied. To the extent that the Commissions interpretation of paragraph 14(a) makes any sense, it does so only if it is limited to circumstances in which the United States is asking the Court to issue an order prohibiting Syracuse from hiring off of a certified eligible list. As explained above, Onondaga County certifies an eligible list only when Syracuse is ready to hire and requests a list. Thus, the ten-day requirement is intended to prevent delay in the hiring of needed public safety personnel. This is clear when the language of paragraph 14(a) relied on by the Commission is read in context. For example, paragraph 14(b) provides, Pending final resolution of the validation issue, the City may apply to the Court for permission to hire police officers and firefighters . . . to meet its interim hiring goals. . . . Any intrusion into the Civil Service appointment process shall be to the minimum extent necessary to comply with the requirements of this decree and the staffing needs of the City. Thus, given its context, paragraph 14(a) should be read to make certification of an eligibility list the trigger for evaluation of validity when the United States seeks an order prohibiting Syracuse from hiring as planned from an existing certified eligibility list. Where, as here, the United States requests only that the Court order the Commission to develop valid tests based on evidence, including an expert opinion, indicating that the existing examinations result in disparate impact and are not valid, the strict requirements of paragraph 14(a) do not apply. As the Court is aware, the Consent Decree in this case has been in place for over 30 years. The Decree does not provide for automatic dissolution for any reason. See Vivenzio v. City of Syracuse, 611 F.3d 98, 104 (2d Cir. 2010) (stating, in a case brought by white applicants

14

Case 5:80-cv-00053-DNH Document 31-1 Filed 08/30/13 Page 19 of 19

challenging Syracuses firefighter hiring process under the Consent Decree, that the decree does not contain terms that provide for automatic dissolution upon the satisfaction of its goals, after a certain period of time, or for any other reason.) A thorough evaluation of the parties compliance with the terms of the Decree and of whether the Decrees basic objectives have been achieved is needed, if not overdue. The Commissions interpretation of certain provisions in the Decree would at least delay and likely prevent any evaluation of compliance with one of the most important of the Decrees requirements the development and use of lawful examinations. That interpretation should be rejected by the Court. IV. CONCLUSION

For the reasons stated herein, the United States respectfully requests this Court order the Commission to develop and institute entry-level firefighter and police officer examinations that comply with Title VII and the Consent Decree by a date certain to be determined by the Court following consultation with the parties. Respectfully submitted, Date: August 30, 2013 On behalf of the United States of America DELORA L. KENNEBREW Chief By: /s/ John P. Buchko JOHN P. BUCHKO (Bar Roll No. 516939) Special Litigation Counsel KRIS HAMMOND (Bar Roll No. 516952) Senior Trial Attorney U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, PHB 4500 Washington, DC 20530 Telephone: (202) 305-1528 Facsimile: (202) 514-1005 John.Buchko@usdoj.gov
15