Having previously decided that defendants have violated the Age Discrimination in Employment Act ("ADEA") 29 U.S.C. SEC. 621 et seq. see EEOC v. New York 846 F. Supp.306 310 (S.D.N.Y. 1994) (Leval C.J. sitting by designation) Court must now determine the appropriate remedy for the individuals who are affected. Plaintiff Equal Employment Opportunity Commission ("EEOC") has submitted an application for relief proposing a remedy and defendants have submitted objections and counterproposals. For the reasons that follow plaintiff's application is granted in part and denied in part.

BACKGROUND

The facts underlying this action are set forth in the prior Opinion and Order finding in favor of the EEOC familiarity with which is presumed. New York Civ. Serv. Law SEC. 58(1)(a) provides that applicants for the position of "police officer " defined in N.Y. Civ. Serv. Law SEC. 58(3) must be between the ages of 21 and 29 with an exclusion for up to six years of military service. Effective August 9 1990 the definition of "police officer" was expanded to include members of the regional state park police ("park patrol officers"). That change subjected applicants for that position to the age requirements of SEC.58(1)(a). (846 F. Supp. at 307.)

Park patrol officer positions are filled in the following manner: Defendant New York State Department of Civil Service ("Civil Service") in conjunction with defendant New York State Office of Parks Recreation and Historic Preservation ("State Parks") develops and administers examinations and establishes certified lists of candidates who have passed those examinations. (846 F. Supp. at 307 n.1.) State Parks then interviews selects and hires the individuals after confirming that each meets the eligibility requirements for the position by conducting physical and psychological examinations drug tests and police background investigations administering an oral exam and confirming that the candidate has a valid driver's license and is legally permitted to carry a firearm. (Affidavit of Charles F. Sanders sworn to on March 22 1996 at PP 23-24; 846 F. Supp. at 307 n.1.)

After appointment as a park patrol officer the candidate is required to complete the Municipal Police Training Course basic school. (Sanders Aff. P 28.) Then candidates serve a one-year probationary period during which candidates are formally evaluated twice once after six months and again at the completion of the probationary period. (Sanders Aff. PP 29-30 33-35.) If a candidate does not meet performance standards he or she may be terminated. (Sanders Aff. P 35.) If a candidate successfully completes the probationary period he or she becomes a permanent park patrol officer. (Sanders Aff. P 35.)

The most recent written examination for appointment to the position of park patrol officer prior to the statutory change was administered on December 10 1988. (Sanders Aff. P 10; 846 F. Supp. at 307.) Following the exam in 1989 Civil Service created four certified eligibility lists and State Parks interviewed and hired applicants from those lists without regard to age. (Sanders Aff. P 11; 846 F. Supp. at 307.) Beginning in August 1990 State Parks ceased hiring persons who were ineligible to become park patrol officers by virtue of this change in law. (846 F. Supp. at 308.) The parties have identified from the 1989 eligibility lists 22 persons who: (1) did not meet the age requirements of N.Y. Civ. Serv. Law SEC. 58(1)(a); (2) scored sufficiently high on the 1988 exam to have been considered for the position but were not because of their age; and (3) remain interested in becoming park patrol officers. (Sanders Aff. PP 19-22.)

The 1989 lists expired on March 30 1993 and were replaced on May 14 1993 by three different lists which were established pursuant to an exam that was administered on December 5 1992. (Sanders Aff. PP 14 16 17.) Five persons have been appointed from these lists which contain a total of 2744 names and which are scheduled to expire on May 14 1997. (Sanders Aff. PP 17 18.)

The EEOC filed this action in early 1992 contending that the newly imposed age requirement in New York Civ. Serv. Law SEC. 58(1)(a) and (3) violated the ADEA vis-a-vis those candidates for park patrol officer over the age of 40. On March 23 1994 after trial on a written record the district court Circuit Court Pierre N. Leval sitting by designation found in favor of the EEOC on the issue of liability. (846 F. Supp. at 310.) Currently before this Court is the question of the appropriate remedy.

DISCUSSION

As the Second Circuit has instructed in a related context:

Once a violation of Title VII [of the Civil Rights Act of 1964] has been established the district court has broad although not unlimited power to fashion the relief it believes appropriate. The bounds of Court's discretion are set by the purposes of Title VII which are to prevent discrimination and achieve equal employment opportunity in the future and to make whole the victims of past discriminatory practices.

Berkman v. City of New York 705 F.2d 584 594 (2d Cir.1983) (citations omitted); see also 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) ("AADE"). Because of the similarity between the two statutes courts generally look to case law interpreting Title VII of the Civil Rights Act of 1964 when analyzing claims brought pursuant to the ADEA. See Wray v. Edward Blank Assocs. Inc. 924 F. Supp.498 503 (S.D.N.Y. 1996).

The EEOC requests an order as follows: (1) requiring State Parks to consider each of the 22 individuals for the position of park patrol officer prior to any person from any subsequent list; (2) awarding to each individual who is hired at the time he or she is hired back pay pre-judgment interest retroactive appointment and constructive seniority and lost fringe benefits dating back to the date when the next lower-ranked younger individual was hired; and (3) that if State Parks fails to hire an individual or terminates the individual during the probationary period State Parks has the burden of proving that the failure to hire or the termination was not discriminatory or retaliatory.

Defendants in response urge that Court issue an order with the following parameters: (1) that the 22 candidates from the 1989 lists be considered simultaneously with the candidates from the 1993 lists; (2) that defendants are entitled to consider each individual simultaneously with the next two names appearing on the list; and (3) that retroactive relief should be granted only after completion of the probationary period.

The parties appear to agree that Court should not order defendants immediately to hire the 22 individuals. Thus regardless of how these individuals are considered for the positions they will have to undergo the usual process of selection before they are hired for a permanent position. That is each individual must: (1) meet the eligibility requirements established by State Parks; (2) successfully complete the Municipal Police Training Course; and (3) successfully complete the probationary period.

The EEOC's application for relief is addressed primarily to ADEA's purpose of "making whole" the victims of discrimination and therefore seeks various forms of what has been denominated "compensatory relief." See Berkman 705 F.2d at 595-96; see also AADE 647 F.2d at 278. This type of relief seeks to "'recreate the conditions and relationships that would have been had there been no'" discrimination. Franks v. Bowman Transp. Co. 424 U.S. 747 769 96 S. Ct.1251 1266 47 L. Ed. 2d 444 (1976) (quoting Local 60 United Bhd. of Carpenters v. NLRB 365 U.S. 651 657 81 S. Ct.875 879 6 L. Ed. 2d 1 (1961) (Harlan J. concurring)).

The parties agree that the beneficiaries of "make whole" relief ought to include "identifiable victims of the employer's discriminatory actions " i.e. the 22 persons identified by the parties. AADE 647 F.2d at 279; see also Guardians Ass'n of the New York City Police Dep't v. Civil Service Comm'n 630 F.2d 79 108 (2d Cir.1980) cert. denied 452 U.S. 940 101 S. Ct.3083 69 L. Ed. 2d 954 (1981). They disagree as to how that relief should be implemented. Court will discuss in turn each point on which the parties disagree.

A. Priority for Consideration vs. Simultaneous Consideration

The EEOC contends that the 22 individuals should receive priority for consideration over anyone from the 1993 eligibility lists. Defendants urge that these 22 persons should be considered simultaneously with the persons from the 1993 lists.

Court finds that the EEOC's proposal accords more closely with the "make whole" purpose of ADEA in that it more closely puts the victims of discrimination in the position in which they would have been absent the discrimination. Had defendants not discriminated on the basis of age it is possible that all 22 persons would have already been considered for the position of park patrol officer prior to the establishment of the 1993 list and some presumably would have been hired for that position. Defendants' proposal of placing these 22 persons in competition with persons currently on the 1993 list would unfairly place before the victims of discrimination an obstacle they would not have faced absent the discrimination.

Moreover the Second Circuit approved precisely this type of relief in AADE 647 F.2d at 281 where Court affirmed a portion of the district court's order providing that 102 minority candidates for firefighter positions be considered before anyone else could be hired. Court reasoned that although non minority candidates would "not be offered positions as early as or may be passed over in favor of lower-ranked minority applicants . . . this result would not defeat the non minority applicants' legitimate expectations " because "the only source of their expectations was" an illegal exam. Id. at 284. Similarly the only source of the expectations of persons on the 1993 lists that they would be offered positions prior to anyone on the 1989 lists is the hiring policy in place from August 9 1990 until after the latter lists expired on March 31 1993 which has already been found to have been violative of the ADEA.

To the extent that this case differs from AADE it provides a more powerful justification for the type of relief proposed by the EEOC: although in AADE id. at 267 n.9 not all 102 spots for minority firefighters were to be filled with easily identifiable victims of discrimination defendants concede that all 22 persons here were actually discriminated against on the basis of age. As in AADE id. at 282 the EEOC's proposal for relief "further[s] the 'make whole' purpose which is central to the statutory scheme."

The parties have not addressed the issue of what if any time limit should be placed on the eligibility of the 22 individuals. The parties shall therefore submit a joint proposed order (or separate proposed orders if they cannot agree) suggesting what if any time limit should be established: the maximum "life span" of an eligibility list pursuant to New York law (four years) see N.Y. Civ. Serv. Law SEC. 56(1); Kirkland v. New York State Dep't of Correctional Services 711 F.2d 1117 1135 (2d Cir.1983) cert. denied 465 U.S. 1005 104 S. Ct. 997 79 L. Ed. 2d 230 (1984); the amount of time between August 9 1990 when the discrimination began and March 31 1993 when the 1989 lists expired (approximately two years and seven months); the one year period established by N.Y. Civ. Serv. Law SEC. 56(3); or another time period along with the reasons supporting the proposal.

B. Consideration from Among the Top Three Names on the List

Defendants argue that they should not be required to consider the 22 individuals in rank order according to their respective test scores but should be permitted to choose among the top three scorers on the list. The EEOC concedes that this is the ordinary method for choosing candidates from the list. See N.Y. Civ. Serv. Law SEC. 61(1); Kaminsky v. Leary 33 A.D.2d 552 552-53 304 N.Y.S.2d 650 651 (1st Dept. 1969) aff'd 28 N.Y.2d 959 272 N.E.2d 75 323 N.Y.S.2d 700 (1971). Thus retaining this aspect of the selection process does not place on the 22 individuals any burden that they would not have borne in the absence of the discrimination. Therefore Court agrees with defendants that they may retain this aspect of their selection process when considering the 22 persons for employment.

C. Seniority Back Pay Pre-judgment Interest and Fringe Benefits

Defendants point out that the Court has discretion not to award the retroactive relief the EEOC seeks but do not proffer any reason why Court should exercise its discretion in such a way. Given that there is a presumption in favor of appropriate retroactive relief see Franks 424 U.S. at 779 n.41 96 S. Ct. at 1271 n.41 (seniority); Albemarle Paper Co. v. Moody 422 U.S. 405 421-22 95 S. Ct.2362 2373 45 L. Ed. 2d 280 (1975) (back pay); Clarke v. Frank 960 F.2d 1146 1154 (2d Cir.1992) (pre-judgment interest) Court will award seniority rights back pay pre-judgment interest and lost job-related benefits to any and each of the 22 individuals who is eventually hired as a park patrol officer.

Defendants also do not contest the EEOC's proposal to "match" each victim of discrimination with each lower-ranked person hired in his or her stead for purposes of calculating the date from which these benefits should be calculated. In other words the benefits for the first of the 22 persons hired would be calculated from the date of hire of the first person with a lower test score than that individuals who was hired after defendants began their discriminatory policy and so forth. This is a sensible approach that has been utilized before in this circuit. See Rios v. Enterprise Ass'n Steamfitters Local Union 638 of U.A. 860 F.2d 1168 1176-77 (2d Cir.1988); AADE 647 F.2d at 288. The Court therefore adopts this approach.

The more difficult question is when these rights should attach. The EEOC argues that these rights should vest when each individual is "hired." As the Court reads this argument the rights would vest after fulfilling the eligibility requirements established by defendants but before commencement of the training course and the probationary period. Defendants argue that these benefits should attach only after completion of the probationary period.

Court agrees with defendants. If one of the 22 individuals is hired but does not successfully complete either the Municipal Police Training Course or the probationary period then presumably the same result would have obtained at some earlier date had the person not been discriminated against (although defendants will have the burden of proving this see infra Part D). Such a person would have never become entitled to the benefits Court is awarding as relief in this action. It makes little sense to award those retroactive benefits to an individual before it is clear that that individual will become a permanent employee and is therefore entitled to the benefits. Therefore the benefits will vest in the individual only when that person obtains a permanent position as park patrol officer.

D. Placement of the Burden if a Candidate is Not Hired for a Permanent Position

Lastly the EEOC proposes that if any of the 22 individuals is not hired for a permanent position the burden should be placed on defendants to prove that the failure to hire is due to a non-discriminatory and non-retaliatory reason.

The EEOC's proposal with regard to the burden of proof conforms with the law in this area. Once a showing of discriminatory failure to hire a class of persons has been made the burden shifts to defendants to prove that each individual discriminated against would not have been hired in any event. See International Bhd. of Teamsters v. United States 431 U.S. 324 362 97 S. Ct.1843 1868 52 L. Ed. 2d 396 (1977); AADE 647 F.2d at 289; see also McKenzie v. Sawyer 221 U.S. App. D.C.288 684 F.2d 62 77 (D.C. Cir.1982); United States v. New Jersey 530 F. Supp.328 335 (D.N.J. 1981).

With respect to certain of the eligibility requirements the allocation of the burden of proof will have little impact. Claims that one of the 22 has failed a physical or psychological examination drug test or police background investigation or that he or she does not have a valid driver's license or is not legally permitted to carry a firearm are amenable to objectively verifiable data.

With regard to the criteria that depend on more subjective evaluations - the oral exam the interview and the evaluations conducted during the probationary period -- defendants will be in a better position to show that the decision was nondiscriminatory and non retaliatory than the individual will be to show the opposite. Moreover because these evaluations have not yet taken place the burden on defendants is not one of "recreating the past " International Bhd. Of Teamsters 431 U.S. at 372 97 S. Ct. at 1873 but merely of keeping accurate documentation of future events. Finally "to the extent that it is uncertain whether a candidate [meets the] nondiscriminatory requirements the uncertainty 'should be resolved against the defendant[s] the parties responsible for the lack of certainty.'" AADE c647 F.2d at 289 (quoting Cohen v. West Haven Bd. of Police Comm'rs 638 F.2d 496 502 (2d Cir.1980)) (alterations added).

CONCLUSION

For the foregoing reasons plaintiff's application for relief is granted in part and denied in part. The parties shall submit within three weeks of the date of this opinion a joint proposed order -- or if they disagree separate proposed orders -- consistent with this opinion.

SIDNEY H. STEIN U.S.D.J.