New York state offers $45M to end civil service test bias lawsuit

ALBANY — If all goes as planned, New York state will begin paying off a $45 million settlement in a month to resolve a little-publicized civil rights lawsuit.

Known as Simpson v. NYS Civil Service Commission, the battle dates to the late 1990s and involved more than 4,000 black and Hispanic state workers and job applicants who took a civil service test that plaintiffs subsequently claimed was biased.

“I believe the ultimate objective of returning New York state to the merit system has been moved forward,” said Merton D. Simpson of Albany, one of the lead plaintiffs in the federal lawsuit.

Under the December agreement, which came at the end of Gov. Andrew Cuomo’s term as attorney general, the state assumed no fault or liability but agreed to pay $45 million over four years starting with the upcoming fiscal year, which begins Friday.

The annual payments of $11,250,000 will be split among 4,706 plaintiffs and lawyers, who will get 25 percent as well as $800,000 in expenses.

“Given the circumstances, it’s a reasonable settlement,” said Michael Sussman, a Goshen attorney who worked on the case with flamboyant Florida-based lawyer Willie Gary.

A March 7 letter Sussman and Gary sent to plaintiffs urges them to accept the deal.

“We engaged in extensive negotiations with counsel for the State of New York and have concluded that the proposed settlement is the best we can obtain. The alternative of reaching no agreement poses substantial litigation risks, the prospect of years of additional delay and no guarantee of a better result,” reads part of the letter, which also acknowledges that New York is under “uncommon economic distress” which “affects the capacity of the State to provide additional financial relief to class members and suggests the wisdom of compromise.”

Next month, plaintiffs will have a chance to opt out of the settlement.

If more than 7.5 percent opt out, the settlement could be voided by the defendants, although neither Sussman nor Simpson said they expect that to happen.

The $11.25 million payment is funded in the 2011-12 budget as part of a $142 million pool to pay for litigation expenses.

The suit had its origins in 1996 when Simpson, who at the time worked for the state Civil Service Department, failed a test needed for promotions.

He believed the exam, or Promotion Test Battery, was overly subjective in that it probed attitudes of people seeking supervisory or management positions.

“Your worldview has no correlation to your ability to do the job,” said Simpson, who also complained that test-takers weren’t given the customary “review and challenge” opportunity. Under that system, people can question and argue about whether some of the answers on the test are correct.

Simpson had written civil service exams and worked as a trainer on issues of discrimination. “I was a stickler for adherence to the merit system,” he said.

He initially took his complaint to the Equal Opportunity Employment Commission, but that failed to resolve the issue. A lawsuit was filed in 2003 in New York’s Northern District federal court.

Simpson eventually lost his state job, contending he was let go for being a troublemaker. Since then, he’s worked as a trainer and mediator. “I stay busy,” said the 56-year-old.

Some of the plaintiffs under the proposed settlement should get between $7,000 and $20,000 depending on their civil service status during and after the test.

Simpson and 10 other “class representatives,” or lead plaintiffs, could get up to $150,000.

Attorney General Eric Schneiderman’s office didn’t respond to a request for comment late Tuesday.

And with the test in question no longer being used, Gustavo Santos, another plaintiff, hopes the lawsuit will result in permanent improvements to the civil service system.

“We were looking for fairness in the testing and to make sure the test is job-related,” said Santos, who works as a minority business specialist for the Department of Transportation.

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