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February 17, 1972

Jesse Douglas et al., Plaintiffs,
Robert Hampton et al., Defendants

Smith, Jr., District Judge

The opinion of the court was delivered by: SMITH, JR.

SMITH, JR., District Judge.

Plaintiffs bring this action to enjoin further use, by the United States Civil Service Commission, of the Federal Service Entrance Examination (FSEE) as the primary means of entry into managerial and professional positions in the federal service alleging that it is discriminatory. Plaintiffs had also sought to enjoin use of scores on the Graduate Record Examination (GRE) as an alternative to the FSEE program, but since use of the GRE scores was discontinued by the Commission on July 17, 1971, that issue is no longer relevant. This matter is before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion for remand of this matter to the Civil Service Commission.

 Named plaintiffs are eight black college graduates hired by the Department of Housing and Urban Development (HUD) under its Urban Intern Program, each of whom subsequently took the FSEE for permanent positions. Four of the plaintiffs attained eligible scores for grade GS-5 positions and are currently working for HUD, two were terminated for failure to obtain eligible scores, one failed to attain an eligible FSEE score but qualified through another examination and is currently working for HUD, and one resigned his position.

 Defendants are members of the Civil Service Commission, the Director of the Bureau of Recruiting and Examining of the Commission, and the Secretary of HUD.

 Plaintiffs bring this action for themselves and on behalf of all past, present, and future federal employees and applicants for such employment who are prevented by the FSEE, solely due to their racial and cultural background, from attaining positions commensurate with their capabilities. They allege that use of the FSEE to qualify and rate applicants violates their rights to equal employment opportunities, disproportionately disadvantages minority applicants, and that the FSEE has not been shown to be related to successful job performance.

 Motion for Preliminary Injunction

 Although plaintiffs contend that the rate at which white competitors attain eligible FSEE scores is greatly in excess of the rate for black competitors, the Commission does not statistically record the performance of FSEE competitors according to race, nor have plaintiffs offered any such statistics. In those occupations, however, where the FSEE is generally used as the entry requirement, blacks comprise approximately 18 percent of employees in occupations in which most employees enter at grade GS-5 and approximately 12 percent of employees in those in which most enter at grade GS-7. Although these percentages appear to be substantially higher than the percentage of blacks among all persons eligible, by college education, to take the FSEE, there is no evidence available which would show the proportion of employees in those occupations who entered through the FSEE program. Those percentages, therefore, do not bear a conclusive relationship to the FSEE pass rate of blacks and whites.

 A comparison of statistics of pass rates at certain colleges with predominantly black enrollment with colleges having predominantly white enrollment indicates that FSEE competitors who have attended the predominantly black institutions attain eligible scores at substantially lower rates than competitors who have attended colleges with predominantly white enrollment. However, there is no evidence of whether competitors had taken the examination one or more times, the race of those competitors, whether there was a comparison of the predominantly black and the predominantly white schools to determine if the difference in pass rates was due to the colleges or the FSEE content, or whether the competitor-graduates of those schools constituted a representative sampling of the members of the respective races who took the FSEE. Those pass rates have not, therefore, been shown to bear a conclusive relationship to the FSEE pass rates of blacks and whites.

 The FSEE measures the ability to use and understand written language and the ability to understand, interpret, and use data presented in quantitative terms. Those abilities are necessary so that applicants are able to learn a variety of tasks in successively higher levels within the occupation and thereby progress from entry level to full journeyman competence, or beyond, in a reasonable period of time. Proposed FSEE draft questions are routinely pretested by administering them to employee or applicant samples before they are included in the examination.

 The decisions as to the abilities to be tested by the FSEE are based on intensive job analyses which identify the requirements of the occupations to be filled. Those analyses, conducted by trained occupational specialists, are integral parts of comprehensive studies of each occupation filled through the FSEE. The occupational studies are used to develop and revise guides for determining pay grade levels in a particular occupation (classification standards) and guides for determining the knowledge, skills, and abilities required for performance at the several grade levels in that occupation (qualification standards).

 During a job analysis, occupational specialists interview management officials, supervisors, and employees at various grade levels of the occupation, personnel specialists, professional and technical societies, unions and other organized groups, and representatives of industry, the academic community, and state and local governments to gather facts concerning the work of an occupation, the knowledge, skills, and abilities required to do that work at various levels, at what levels employees possessing those abilities can be found, relationship of the work to other occupations, and what attributes especially make for successful performance at the various levels and show potential for promotion.

 Before an occupation is designated as one to be filled through the FSEE, the occupational specialists must determine that the entry level position requires experience or education equivalent in level to professional training, that no one specific subject matter background can or should be required, that the full performance level in the occupation is usually at least grade GS-11, and that trainees must demonstrate ability to successfully perform at entry level and through full performance level.

 Validation is a term used by psychologists to describe the method utilized to demonstrate that an examination measures what it is supposed to measure. The Commission uses a rational method of validation based in large part on the job analyses described above. Plaintiffs contend that such a method of validation cannot be used to establish that the FSEE is job-related. The Commission has considered other methods of validation and has determined that the rational method is most accurate and particularly suited to its needs. Further, the defendants have demonstrated that the FSEE measures verbal and quantitative abilities and that those abilities are necessary for learning the duties and successfully reaching full performance levels within those occupational fields for which it is used. Therefore, the FSEE is rationally valid, i.e., significantly and rationally related to successful job performance. There is no merit to plaintiffs' contention that ...

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