On May 21, 2007, the U.S. Department of Justice ("DOJ") filed a lawsuit on behalf of United States of America against the City of New York under Title VII of the Civil Rights Act of 1964 in the U.S. District Court for the Eastern District of New York, Brooklyn Division. On July 17, 2007, the Vulcan Society--an organization of black firefighters, and three individuals, filed an Intervenor's Complaint. Plaintiffs sued to enforce the right of black and Hispanic candidates to be treated fairly in the application process for positions in the New York City Fire Department ("FDNY"). Specifically, Plaintiffs challenged the City's reliance on two written examinations that were used to appoint entry-level firefighters to classes at the New York City Fire Academy ("Academy"). These examinations--Written Examination 7029 and Written Examination 2043--were administered from 1999 to 2007, and the City had appointed more than 5,300 entry-level firefighters based on the test's results. Although Plaintiffs identified approximately 3,100 of the examination candidates as black and approximately 4,200 of the examination candidates as Hispanic, the City had appointed just 184 black firefighters and 461 Hispanic firefighters from the challenged examinations.
Plaintiffs asserted that the City's reliance on Exams 7029 and 2043 in selecting entry-level firefighters had had a disparate impact on black and Hispanic candidates in violation of Title VII. The Intervenors also claimed, under a disparate treatment theory, that the City, two city agencies, the Mayor and the Fire Commissioner had long been aware of the discriminatory impact on blacks of their examination process, and that their continued reliance on and perpetuation of these racially discriminatory hiring processes constituted intentional race discrimination.
To remedy these claimed violations, Plaintiffs sought various forms of injunctive and monetary relief. The United States sought to enjoin the City from engaging in discriminatory practices against black individuals on the basis of race and against Hispanics on the basis of national origin, and sought a specific injunction against the practices challenged in this case. It also asked the court to order the City to take appropriate action to correct the present effects of its discriminatory policies and practices and to enjoin it from failing to "make whole" those harmed by the City's policies and practices.
The Intervening Plaintiffs sought similar, but broader relief, including an injunction requiring the City to appoint entry-level firefighters from among qualified black applicants in sufficient numbers to offset the historic pattern and practice of discrimination against blacks in testing and appointment to that position. The Intervenors sought to require the City to recruit black candidates and implement and improve long-range recruitment programs and to provide future test scores, appointment criteria, eligibility lists, appointment data, and all other information necessary to conduct an adverse impact and job-relatedness analysis of the examination and selection process. The Intervenors also sought damages and other fees.
On September 5, 2007, the Court (Judge Nicholas G. Garaufis) issued an order to bifurcate the liability and relief phases, and permitted intervention by the Intervenors. On July 25, 2008, the Court denied the Intervenors' motion to amend their Complaint, but on January 28, 2009, declined to dismiss the Intervenors' Complaint on timeliness grounds. On May 11, 2009, in a published opinion, the Court certified a class consisting of black applicants for the position of entry-level firefighter. United States v. City of New York, 258 F.R.D. 47.
On July 22, 2009, the Court concluded that Plaintiffs had established a prima facie case that the City's use of the two written examinations had resulted in a disparate impact upon black and Hispanic applicants for the position of entry-level firefighter. The Court also concluded that the City had failed to present sufficient evidence that business needs justified its employment practices. Therefore, the Court granted Plaintiffs' Motions for Summary Judgment in their entirety. This ruling established that the City was liable for disparate-impact discrimination under Title VII. 637 F.Supp.2d 77.
On January 13, 2010, in a published order, the Court held that the City's use of these two examinations constituted a pattern and practice of intentional discrimination against blacks, in violation of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, and State and City Human Rights Laws. 683 F. Supp. 2d 225.
On January 21, 2010, in another published order, the Court expressly did not order any particular form of relief. Instead, the Court "outlined the broad contours of relief and resolves several basic disputes regarding the implementation of a remedy." In essence, the Court concluded that two broad forms of relief were needed to remedy the City's discrimination: (1) compensation for the identified victims of the City's discriminatory testing practices, and (2) compliance measures to ensure that the City implements and administers a fair and job-related test for entry-level firefighters. The Court noted that these forms of relief were simple in concept, but would be complex in execution. Achieving these basic aims would require ongoing oversight, attention to myriad details, and resolution of disputes among the parties. 681 F. Supp. 2d 274.
Following these decisions, the Court issued a preliminary relief order directing the parties to take certain actions to begin remedying the City's violations. Among other things, the Court directed the parties to prepare for a hearing (the "6019 Hearing") regarding the validity of Exam 6019, which in turn would determine whether and how the City could hire from the Exam 6019 eligibility list on an interim basis while a new, valid selection procedure was being developed.
On August 4, 2010, in a published opinion, the Court held that the City failed to carry its burden to demonstrate that its use of Exam 6019 as a pass/fail and rank-ordering device was job-related and justified by business necessity. Therefore, the Court concluded that the City's use of Exam 6019 did not comply with Title VII. Accordingly, the Court restrained and enjoined the City from taking any further steps to initiate or finalize a fire academy class using the Exam 6019 eligibility list until October 1, 2010. 731 F. Supp. 2d 291.
On October 19, 2010, the Court permanently enjoined the City from hiring firefighters based on the results of Exam 6019, except under one of the interim approaches already endorsed by the Court. 2010 WL 4137536.
On June 6, 2011, the Court granted in part and denied in part Plaintiff-Intervenors' motion for continued remedial-phase certification of the class of black victims of the City's discrimination that the Court had conditionally certified at the beginning of the remedial phase of the litigation. In that Order, the Court certified noneconomic loss and injunctive relief subclasses, each comprised of black non-hire and delayed-hire victims of the City's discrimination. The Court appointed the three individual Intervenors as representatives of the noneconomic loss subclass, and the Vulcan Society as representative of the injunctive relief subclass. 2011 WL 2259640.
With respect to issues of "make-whole" relief, including backpay and benefits, priority hiring, and retroactive seniority, the court denied Plaintiff-Intervenors' motion for certification of a single class represented by the Vulcan Society, but permitted Plaintiff-Intervenors to move for certification of non-hire victim and delayed-hire victim subclasses as to issues of make-whole relief as long as they were represented by individual subclass members.
Before the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) ("the Wal-Mart decision"), Plaintiff-Intervenors contended that the two subclasses should be certified as mandatory subclasses under Rule 23(b)(2). In the alternative, they argued that they also qualified for certification under Rule 23(b)(3). After Plaintiff-Intervenors filed their motion for certification of the two subclasses, the Wal-Mart decision was issued on June 20, 2011. The Court ordered the parties to submit additional briefing addressing the effect of the Wal-Mart decision on the pending motions for certification of the two subclasses. The parties filed letters stating their views on the Wal-Mart decision on June 21, 2011.
On July 8, 2011, in a published order, the Court addressed the effect of the Wal-Mart decision. Applying Wal-Mart, the Court denied the City's motion to decertify the liability-phase class; denied Plaintiff-Intervenors' motion for summary judgment as to compensatory damages for noneconomic losses; and under Federal Rule of Civil Procedure 23(b)(3), certified the non-hire and delayed-hire victim subclasses as to common remedial-phase issues. 276 F.R.D. 22.
On July 11, 2011, the Court granted Plaintiff-Intervenors' Motion to compel the City to reduce the application fee for Exam No. 2000 from $54.00 to $30.00. On July 13, 2011, the Court issued an order approving changes made to the next entry-level examinations, including inclusion of questions on race and gender. 2011 WL 2745940.
On September 30, 2011, following a bench trial on injunctive relief, the Court issued a memorandum on findings of fact. 2011 WL 7661518. On October 5, 2011, the Court issued an order containing a draft remedial order and informing parties of its intention to enter a permanent injunction, after reasoning that the Court's involvement in remedying discrimination is required due to the City's historic lack of response to it. It aimed at compelling the City to undertake a court-guided institutional reform with several general injunctions and only few specific instructions. The draft remedial order also contemplated retention of jurisdiction by the Court for at least ten years and appointment of a Court Monitor to assess implementation of orders. 2011 WL 4639832.
The Court issued an order granting partial judgment and a permanent injunction on December 8, 2011. The order contained several permanent injunctions: 1) the City was enjoined from using policies previously found unlawful by the Court, or any other policies that have a disparate impact on black or Hispanic applicants; 2) prohibition of discrimination on the basis of race or national origin in the City's recruitment and selection processes; 3) prohibition on retaliation. The order also contained more specific remedies, including, among others: 1) development of an optional survey to assess effectiveness of its selection procedures with an independent recruitment consultant; 2) mitigating effects of voluntary attrition plans on Hispanics and blacks; 3) more comprehensive screening procedure; 4) assessment of its compliance with employment laws. The Court retained jurisdiction over the matter until the City's examinations, recruitment, selection and other procedures no longer had a disparate impact on blacks and Hispanics, and, in any event, the Court's jurisdiction to modify or enforce the order would not lapse until the later of January 1, 2022, or expiration of the City's next two civil hiring lists for entry-level firefighters. 2011 WL 6131136. On December 9, 2011, the defendants filed a notice of appeal of the order to the Second Circuit Court of Appeals.
On February 1, 2012, the District Court denied a motion to intervene by a firefighters' union without prejudice regarding priority hiring eligibility, granted the motion with respect to the City's motion for a change in examination objection policy. 2012 WL 3134353. It also denied an individual's motion to intervene, and granted the plaintiff-intervenor's motion for partial final judgment on the issue of individual liability of the Mayor and other officials. On February 2, 2012, the plaintiff-intervenors appealed the Court's partial final judgment.
On March 8, 2012, the Court issued an order denying summary judgment for the plaintiffs as to backpay liability because certain issues had to be resolved on an individual basis, but found there was no question that backpay was due. The pre-mitigation backpay was estimated to be $126,696,803.00 by statistical analysis. The court also permitted the City to amend its response to claim of failure to mitigate damages by the plaintiffs. The court also decided the issue of eligibility for backpay, settling on the definition of non-hire claimant and delayed-hire claimant. The former included any black or Hispanic applicant who failed written exams 7029 or 2043 and did not gain position of entry-level firefighter, or passed exam 2043 and failed to gain the same position. The latter included any black or Hispanic applicant who failed or passed written exams 7029 or 2043, but did not gain position of entry-level firefighter after a certain date. The definitions also included other qualifications, such as speaking English, not having a criminal record of a felony, and being of a certain age. The Court also denied the City's motion to delay individual relief determinations pending its appeal of the earlier summary judgment. 847 F. Supp. 2d 395.
The proceedings continued with the matters concerning the fairness hearing on the relief granted to two classes of complainants. On September 28, 2012, the Court granted the City's motion to use Exam 2000 to create a list of eligible applicants. 2012 WL 4503253. Following a fairness hearing, the Court determined that none of the objections merited a change in the proposed relief order, and issued a final relief order on October 26, 2012. The final relief incorporate the proposed relief order and all the orders made by the Court in the interim (such as calculating backpay). 905 F. Supp. 2d 438.
On May 14, 2013, the Second Circuit issued its decision on the City's appeal of the injunction against hiring entry-level firefighters, summary judgment against it on disparate treatment of January 13, 2010, and the plaintiff-intervenors' cross-appeal on individual liability of the Mayor and other officials. The Second Circuit vacated summary judgment against the City on disparate treatment, reasoning that the City met its burden of production to rebut the prima facie case of discrimination. It also found that there was sufficient evidence for an individual claim against the Commissioner based on federal law. In light of vacating the summary judgment, the Second Circuit ruled that certain provisions of the injunction had to be modified, wherever it referenced disparate treatment by the defendants. In all other respects, the injunction was affirmed. The disparate treatment issue was remanded for a trial with an order that a different judge preside over the proceedings. 717 F.3d 72.
On August 30, 2013, the District Court granted the plaintiff-intervenors attorney's fees in the amount of $3,707,313.29. The expert's fees were denied without prejudice. 2013 WL 5542459.
On June 3, 2013, the District Court issued an order allowing the plaintiffs to seek noneconomic compensatory damages under New York State Human Rights Law and New York City Human Rights Law, based on the disparate impact claims. Afterwards, the Court continued to review the Special Masters' reports and approving lists of priority hires, and denying some claimants (for example, see Docket Entry No. 1182). 2013 WL 12318105.
On January 30, 2014, the District Court granted in part the plaintiff-intervenors' expert fees in the amounts of $198,751.11, $5,856.00 and $33,642.00. 2014 WL 347605.
On March 18, 2014, the District Court received a letter that the plaintiffs and the City settled as to the disparate treatment dispute. On April 22, 2014, both parties filed a joint motion for provisional approval of the settlement, which was granted on April 28, 2014. The stipulation contained promises by the City to better recruit minority firefighters and creation of a position at FDNY for that purpose. According to
the New York Times, the new Mayor of New York, Bill de Blasio, decided to settle the case and agreed to pay nearly $100 million in backpay to minorities.
About six months later, the United States proposed a schedule of individual monetary awards for victims of discrimination. On March 11, 2015, Judge Garaufis accepted a modified form of the United States' proposal to resolve outstanding claims for backpay and fringe benefits. The order awarded a total of $99,098,358.29 to plaintiffs and included detailed procedures for allocating the award across plaintiffs based on the plaintiffs' individual circumstances. In addition, the City reimbursed $150,000 in costs to the United States but was not required to pay attorneys' fees. The Intervenors and the agreed to negotiate in good faith to arrive at reasonable attorneys' fees.
The court decided that the total settlement was fair, placing particular stress on the fact that some plaintiffs had been injured 15 years ago. It also noted that individual plaintiffs were generally favorable towards the settlement. Turning to the allocation scheme, the court recognized a paucity of precedent but decided that the formula was "lawful, consistent with the public interest, fair, reasonable, and adequate." In addition, Judge Garaufis rejected objections by individual plaintiffs that had surfaced during the preceding year.
Judge Garaufis also noted that the City made a series of offers of judgment starting in April 2014 to black claimants who suffered non-economic harm. 2015 WL 1063403.
On April 16, 2015, Judge Garaufis ordered the City to pay back interest on claimant's employee pension contributions. Balancing the City's interests with those of the plaintiffs, Judge Garaufis found that Title VII's "make whole" imperative outweighs the City's potential savings. 2015 WL 1800245.
In a June 5, 2015 order, Judge Garaufis adopted the parties' joint stipulation on the Intervenors' intentional discrimination claims. The City agreed to:
- Recruit black test-takers in proportion to the total population, plus 3% to correct past discrimination;
- Appoint a Chief Diversity and Inclusion Officer to promote diversity;
- Disclose medical standards to candidates;
- Place firefighters in companies close to where they live, as practical; and
- Engage in outreach activities at local schools and colleges. 308 F.R.D. 53.
Over the next year, the court continued to enforce the settlement agreements. In particular, the court awarded several money judgments to individual claimants found eligible by Special Masters. In addition, the City awarded $30,950 to a firefighter who alleged retaliation by the Fire Department as part of a December 31, 2015 settlement agreement.
On February 18, 2016, Judge Garaufis preliminary approved a settlement awarding $9.5 million in attorneys' fees to the Intervenors. Few class members objected to the fee award. Noting that fee awards are permissible in class actions and that $9.5 million was reasonable in light of the time spent and success obtained by the Intervenors, Judge Garaufis issued final approval of the award on June 16, 2016. 2016 WL 3417218.
The parties adopted the Second Amended Protective Order on November 20, 2017, to help ensure the privacy of the class members. The Order define "confidential material" to include anything that contained identifying information of current or former firefighters or applicants and restricted use of such material to the litigation. In addition, the Order restricted how the parties could disseminate confidential information to third parties.
As of December 6, 2018, the court continues to monitor the City's compliance.
Xin Chen - 08/03/2011
Zhandos Kuderin - 07/21/2014
Timothy Leake - 12/06/2018
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