Filed Date: May 21, 2007
Case Ongoing
Clearinghouse coding complete
On May 21, 2007, the U.S. Department of Justice ("DOJ") sued 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, seeking 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, the DOJ 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"). The case was assigned to Judge Nicholas G. Garaufis.
On July 17, 2007, the Vulcan Society—an organization of Black firefighters—and three individuals, filed an intervenor's complaint.
According to the complaints, the challenged 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 the 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.
The plaintiffs asserted that the City's reliance on Exams 7029 and 2043 in selecting entry-level firefighters resulted in 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 a racially discriminatory hiring process constituted intentional race discrimination.
To remedy the alleged violations, the plaintiffs sought various forms of injunctive and monetary relief. The DOJ 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. They also asked the court 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 issued an order to bifurcate the liability and relief phases, and permitted intervention by the non-DOJ plaintiffs. 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. 258 F.R.D. 47.
On July 22, 2009, the court found that the 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 found that the City had failed to present sufficient evidence that business needs justified its employment practices. Therefore, the court granted summary judgment in favor of the plaintiffs. 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 resolve[d] 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 implemented and administered 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 of demonstrating 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 the plaintiffs' 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 the plaintiffs' motion for certification of a single class represented by the Vulcan Society, but permitted them 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 (2011) ("the Wal-Mart decision"), the plaintiffs 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 the plaintiffs 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 the plaintiffs' 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 the plaintiffs' 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. The following week, 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 was 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:
The order also contained more specific remedies, including, among others:
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. 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 decided a pending motion to intervene by the Uniformed Firefighters Association of Greater New York, denying the motion as to priority hiring elibility, but granting it with regard to examination objection procedures. 2012 WL 3134353. In the same order, the court denied an individual's motion to intervene.
Judge Garaufis also granted the City's motion for permission to change two aspects of examination objection procedures. New York law specified that after administration of a civil service examination, the City must convene a Test Validation Board ("TVB") to hear objections about test questions from applicants. The three-member TVB was to consist of a nominee of the personnel director, a nominee of the union, and a joint nominee. The City sought to make two modifications to the procedure: (1) the City asked the court to allow it to select a consultant to the Special Master as the third member, without the union's consent; and (2) the City asked the court for permission to hold review sessions wherein applicants could compare their answers with the model answers and either object or waive their right to do so during the review session, rather than the 30-day window prescribed by law. Finally, the court granted the plaintiffs' motion for partial final judgment on the issue of individual liability of the Mayor and other officials, claims that the court had dismissed on January 12, 2010, under qualified and official immunity. The entry of final judgment allowed the the plaintiff-intervenors to cross-appeal to the Second Circuit, which they did on February 2, 2012.
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 that 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.
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 incorporated 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 (1) the City's appeal of the injunction against hiring entry-level firefighters; (2) the lower court's January 13, 2010, grant of summary judgment against it as to disparate treatment; and (3) 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 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 trial with an order that a different judge preside over the proceedings. 717 F.3d 72.
On June 3, 2013, the district court issued an order allowing the plaintiffs to seek noneconomic compensatory damages under the New York State Human Rights Law and New York City Human Rights Law, based on the disparate impact claims. Afterward, the court continued to review the Special Masters' reports and approve lists of priority hires, as well as deny some claimants (for example, see Docket Entry No. 1182). 2013 WL 12318105.
On August 30, 2013, the district court granted the plaintiff-intervenors request for interim attorneys' fees in the amount of $3,707,313.29. Their motion to recoup expert and consultant fees was denied without prejudice. 2013 WL 5542459. However, on January 30, 2014, the court granted in part the plaintiff-intervenors' request for expert fees, awarding sums of $198,751.11, $5,856.00, and $33,642.00. 2014 WL 347605.
On March 18, 2014, the parties notified the court that they had 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 to create a position at FDNY for that purpose. According to the New York Times, the new Mayor of New York, Bill de Blasio, opted 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 the 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 City and the plaintiff-intervenors agreed to negotiate in good faith to arrive at reasonable attorneys' fees.
In granting the joint motion for final entry of the amended monetary relief consent decree, the court found that the total settlement was fair, placing particular emphasis on the fact that some plaintiffs had been injured 15 years ago. It also noted that individual plaintiffs were generally in favor of 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 claimants' employee pension contributions. Balancing the City's interests with those of the plaintiffs, Judge Garaufis found that Title VII's "make whole" imperative outweighed the City's potential savings. 2015 WL 1800245.
In a June 5, 2015 order, the court adopted the parties' joint stipulation on the intervenors' intentional discrimination claims. The City agreed to:
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 preliminarily 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.
In 2019, the Monitor flagged that the City changed its hiring practices without the Monitor’s approval. Under the City's hiring process, candidates who scored above a designated level on the intial computer-based exam were called in for the Candidate Physical Ability Test (CPAT). To account for attrition, the City's standard practice was to call three times as many candidates for the CPAT as the size of the Academy class it intended to fill. However, the Monitor reported that the City called enough candidates to fill two classes at one time from the October 2018 sitting of the written exam, Exam 7001. As a result, those candidates who sat for Exam 7001 and passed the CPAT waited nearly twice as long before entering the Academy as candidates sitting earlier exams. On June 9, 2021, Judge Garaufis found that the City breached the remedial order and directed the City to:
The City appealed to the U.S. Court of Appeals for the Second Circuit on August 4, 2021.
Noting that the NYFD was engaged in an ongoing internal investigation of continuing discrimination within the department, and referencing a New York Times report that nine firefighters had been suspended, the court ordered a hearing on October 8, 2021 regarding continuing implementation of the court's modified remedial order.
While the appeal was ongoing, monitoring continued and the Vulcan Society filed a letter objecting the Monitor's CPAT Recommendation to the court on April 10, 2023. In response, on April 19, 2023, the court directed the Monitor to consider the Vulcan Society's concerns about how the CPAT recommendation would adversely affect Black and Hispanic applicants. The dispute arose after the City informed all parties of its intent to call score a larger group of candidates across two exam score bands due to an operational need to fill Academy classes through Spring 2024. The Vulcan Society was concerned that the City lacked adequate staffing and other capacities to train and support an expanded group of candidates and on a potentially higher failure rate for Black and Hispanic applicants if there was a large gap between the CPAT and subsequent training steps. Considering the Vulcan Society's concerns, the Monitor informed the City on March 9, 2023 that he would approve calling one additional exam score band (containing approximately 2000 applicants), but not the second until the City conducted further analysis. The next day, FDNY personnel called the Monitor emphasizing the urgent need for more trainees and the logistical unfeasibility of staggering the two score bands. The Monitor relented on March 11, 2023. On May 19, 2023 the Monitor sent a letter to the court supporting the decision to call two exam bands while acknowledging plaintiffs' concerns about attrition and lack of support for Black and Hispanic candidates. The court approved the Monitor's recommendation the same day.
The Second Circuit issued an order on the appeal on August 7, 2023, and the mandate on October 3, 2023, finding in favor of the City and reversing and remanding the district court's June 9, 2021 order. The Circuit panel included Jon O. Newman, Reena Raggi, and Myrna Pérez. The Second Circuit found that plaintiffs did not convincingly explain why the post-CPAT calling procedure was necessary to further the goals of the MRO and the MRO did not clearly require the City to obtain approval from the Monitor before altering the number of candidates called for each CPAT.
Monitoring remains ongoing.
Summary Authors
Xin Chen (8/3/2011)
Zhandos Kuderin (7/21/2014)
Timothy Leake (12/6/2018)
Jonah Hudson-Erdman (4/12/2021)
Zoe Van Dyke (10/11/2022)
Hannah Juge (11/21/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/5502126/parties/united-states-v-city-of-new-york/
-, Robert H. (New York)
-, Bonnie I. (New York)
-, Barbara Schwabauer, (New York)
-, Jessica Apter, (New York)
-, Jamison Davies, (New York)
-, Barbara Schwabauer, (New York)
-, Rebekah Cook-Mack, (New York)
Abdulaleem, Raheemah (District of Columbia)
Bachman, Eric (District of Columbia)
Burrell, Meredith (District of Columbia)
Cook-Mack, Rebekah B (New York)
Eskew, David Michael (New York)
Funk, Hilary (District of Columbia)
Gadzichowski, John M. (District of Columbia)
Geller, Clare F (District of Columbia)
Gleason, Peter Joseph (New York)
Goldberger, Michael J. (New York)
Hussain, Varda (District of Columbia)
Kim, Wan J. (District of Columbia)
Ladewski, Kathryn (District of Columbia)
Morgenthau, Robert M. (New York)
Palmer, David J. (District of Columbia)
Pinion, Hilary Funk (New York)
Reese, David Nathan (District of Columbia)
Ruckert, Karen P. (District of Columbia)
Schachner, Elliot M. (New York)
Schwabauer, Barbara A. (District of Columbia)
Seeley, Sharon (District of Columbia)
Speck, Elizabeth A. (District of Columbia)
Swedish, Jennifer (District of Columbia)
Townsend, Allan K. (District of Columbia)
Bailey, Patricia Jean (New York)
Barker, Kami Zumbach (New York)
Brooks, Jeffrey Charles (New York)
Canfield, Donna Anne (New York)
Cardozo, Michael A. (New York)
Cavalieri, Meghan Ann (New York)
Comfrey, Kathleen M. (New York)
Cooke, Brenda Elaine (New York)
Counsel, Richard Paul (New York)
Counsel, Deborah A. (New York)
D'Andrea, Theresa Jeanine (New York)
Dantowitz, Jeffrey Scott (New York)
Dougherty, Jeffrey Anthony (New York)
Eichenholtz, Eric J. (New York)
Fraenkel, William S.J. (New York)
Gertzer, Michael Keith (New York)
Lemonedes, James M. (New York)
Marutollo, Joseph Anthony (New York)
Miller, Patricia B. (New York)
O'Connor, Maureen Theresa. (New York)
Renaghan, Sean Robert (New York)
Richardson, Lisa Marie (New York)
Rubinstein, Yuval (District of Columbia)
Sample, Edward Lee II (New York)
Serrano, Leah Sharon (New York)
Sullivan, Donald C. (New York)
Traverse, Benjamin J. (New York)
Abernethy, Jonathan S. (New York)
Barday, Shireen Anneke (New York)
Belovin, Allyson L. (New York)
Betheil, Richard M. (New York)
Galleshaw, James J. (New York)
Gresser, Lawrence T. (New York)
Kahan, Rebecca Sarah (New York)
Lynaugh, Margaret E. (New York)
Povolny, Matthew Vincent (New York)
Wald, Alexandra Sarah (New York)
See docket on RECAP: https://www.courtlistener.com/docket/5502126/united-states-v-city-of-new-york/
Last updated May 6, 2024, 3:02 a.m.
State / Territory: New York
Case Type(s):
Special Collection(s):
Post-WalMart decisions on class certification
Key Dates
Filing Date: May 21, 2007
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
United States government and African-American and Hispanic candidates applying for positions in the New York City Fire Department.
Plaintiff Type(s):
U.S. Dept of Justice plaintiff
Attorney Organizations:
Center for Constitutional Rights (CCR)
U.S. Dept. of Justice Civil Rights Division
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
City of New York Fire Department (New York), City
Defendant Type(s):
Case Details
Causes of Action:
Title VII (including PDA), 42 U.S.C. § 2000e
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Content of Injunction:
Develop anti-discrimination policy
Utilize objective hiring/promotion criteria
Follow recruitment, hiring, or promotion protocols
Comply with advertising/recruiting requirements
Other requirements regarding hiring, promotion, retention
Goals (e.g., for hiring, admissions)
Amount Defendant Pays: 113,476,512.00
Order Duration: 2011 - 2022
Issues
General/Misc.:
Discrimination Area:
Discrimination Basis:
National origin discrimination
Affected National Origin/Ethnicity(s):
Affected Race(s):