Case: United States v. City of Portsmouth

2:09-cv-00133 | U.S. District Court for the Eastern District of Virginia

Filed Date: March 25, 2009

Closed Date: 2013

Clearinghouse coding complete

Case Summary

On March 25, 2009, the United States Department of Justice filed a complaint in the Eastern District of Virginia on behalf of African-American applicants to entry-level firefighter positions. The plaintiff alleged that, from 2004-2008, the City of Portsmouth fire department's practice of requiring applicants to pass an examination in order to be considered for an entry-level firefighter positions had a disparate impact on the hiring of African-Americans, in violation of Title VII of the Civil …

On March 25, 2009, the United States Department of Justice filed a complaint in the Eastern District of Virginia on behalf of African-American applicants to entry-level firefighter positions. The plaintiff alleged that, from 2004-2008, the City of Portsmouth fire department's practice of requiring applicants to pass an examination in order to be considered for an entry-level firefighter positions had a disparate impact on the hiring of African-Americans, in violation of Title VII of the Civil Rights Act of 1964. They sought injunctive relief to stop the defendant's discriminatory hiring practices, and damages for those who have been impacted by them.

Specifically, the plaintiff alleged that, since 2004, the city has administered a standardized test that applicants must pass with a minimum score of 70%, in order to be considered for hire into entry-level firefighter positions. The results of the test are then combined with scores from a personal interview to rank candidates for selection. The test passage rate of white test-takers was twice that of African Americans. The test is not essential to the job of firefighting and it prematurely eliminated 86 African Americans from the application process.

On July 23, 2009, following a hearing on the matter, the District Court (Judge Mark S. Davis) ruled that a joint settlement agreement was fair and that the court would enforce it. The agreement held that the city could not use any selection method for entry-level firefighting positions that had a disparate impact on African Americans or was not job related (preferably both). It could, however, use the 2008 test to fill essential vacancies as long as they did not do so in a way that maintained the discriminatory impact. After these essential hires the city must use a new selection method. Both of these conditions were subject to either US or court approval.

According to the settlement agreement, the city must also pay out a total of $145,000 to African-American applicants who failed the test between 2004 and 2008, but who did well on the reading comprehension part of the test. The city had to notify these former applicants and they, in turn, had to make a claim for an award out of the $145,000. Following a second fairness hearing, on April 29, 2010, the District Court (Judge Davis) set the final list of people eligible for this relief.

The city also had to make ten priority hires of African Americans who were discriminatorily eliminated from the application process, based on the list of people eligible for monetary relief. These applicants must finish all of the nondiscriminatory parts of the application to be hired, but once hired they would receive retroactive seniority regarding pay and benefits.

On January 29, 2013, the District Court (Judge Davis) terminated the consent decree because the city had implemented a nondiscriminatory hiring practice with US approval, and they had met all of their obligations to individuals by either paying them their damage award or hiring them with the full benefits of retroactive seniority.

Summary Authors

Benjamin St. Pierre (10/29/2014)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/60727837/parties/united-states-v-city-of-portsmouth-virginia/


Judge(s)

Davis, Mark Steven (Virginia)

Attorneys(s) for Plaintiff

Banaszak, Elizabeth Belle (District of Columbia)

Burrell, Meredith (District of Columbia)

Danis, Jodi B (District of Columbia)

Gadzichowski, John M. (District of Columbia)

King, Loretta (District of Columbia)

Watt, Susan Lynn (Virginia)

Attorneys(s) for Defendant

Bates, Alfred William III (Virginia)

Cordell, Cheran Denise (Virginia)

Oksman, George Timothy (Virginia)

Judge(s)

Davis, Mark Steven (Virginia)

Attorneys(s) for Plaintiff

Banaszak, Elizabeth Belle (District of Columbia)

Burrell, Meredith (District of Columbia)

Danis, Jodi B (District of Columbia)

Gadzichowski, John M. (District of Columbia)

King, Loretta (District of Columbia)

Watt, Susan Lynn (Virginia)

Attorneys(s) for Defendant

Bates, Alfred William III (Virginia)

Cordell, Cheran Denise (Virginia)

Oksman, George Timothy (Virginia)

Documents in the Clearinghouse

Document

2:09-cv-00133

U.S. District Court Eastern District of Virginia - (Norfolk) Civil Docket for Case #: 2:09−cv−00133−MSD−LRL

March 25, 2009

March 25, 2009

Docket
1

2:09-cv-00133

Complaint

2009 WL 5873702

March 25, 2009

March 25, 2009

Complaint
13

2:09-cv-00133

Consent Decree

July 23, 2009

July 23, 2009

Order/Opinion
24

2:09-cv-00133

Order re. Fairness Hearing

April 29, 2010

April 29, 2010

Order/Opinion
37

2:09-cv-00133

Agreed Final Order

US v. City of Portsmouth

Jan. 29, 2013

Jan. 29, 2013

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/60727837/united-states-v-city-of-portsmouth-virginia/

Last updated July 1, 2022, 8:53 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against City of Portsmouth, Virginia, filed by United States of America. (Attachments: # 1 Civil Cover Sheet)(lhow, ) (Entered: 03/26/2009)

March 25, 2009

March 25, 2009

Clearinghouse
2

Joint MOTION for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing by United States of America. (Attachments: # 1 proposed order)(lhow, ) (Entered: 03/26/2009)

March 25, 2009

March 25, 2009

PACER
3

Memorandum in Support re 2 MOTION for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing filed by United States of America. (lhow, ) (Additional attachment(s) added on 7/9/2009: # 1 proposed consent decree) (lhow, ). (Entered: 03/26/2009)

March 25, 2009

March 25, 2009

PACER
4

MOTION for John M. Gadzichowski to appear Pro hac vice by United States of America. (lhow, ) (Entered: 03/26/2009)

March 25, 2009

March 25, 2009

PACER
5

MOTION for Jodi Beth Danis to appear Pro hac vice by United States of America. (lhow, ) (Entered: 03/26/2009)

March 25, 2009

March 25, 2009

PACER
6

MOTION for Meredith Lynn Burrell to appear Pro hac vice by United States of America. (Attachments: # 1 attachment)(lhow, ) (Entered: 03/26/2009)

March 25, 2009

March 25, 2009

PACER
7

ORDER granting 4 Motion for Pro hac vice, Appointed John M Gadzichowski for United States of America. Signed by District Judge Mark S. Davis and filed on 4/2/09. (lhow, ) (Entered: 04/03/2009)

April 2, 2009

April 2, 2009

PACER
8

ORDER granting 5 Motion for Pro hac vice, Appointed Jodi Beth Danis for United States of America. Signed by District Judge Mark S. Davis and filed on 4/2/09. (lhow, ) (Entered: 04/03/2009)

April 2, 2009

April 2, 2009

PACER
9

ORDER granting 6 Motion for Pro hac vice, Appointed Meredith Lynn Burrell for United States of America. Signed by District Judge Mark S. Davis and filed on 4/2/09. (lhow, ) (Entered: 04/03/2009)

April 2, 2009

April 2, 2009

PACER
10

ORDER GRANTED 2 Motion for Provisional Entry of Consent Decree. ORDERED that the Consent Decree agreed to and executed by the parties is provisionally approved and entered by this court. Further ORDERED that a Fairness Hearing will be held before this Court on Thursday, 7/23/09 beginning at 10:30 a.m. at the Walter E. Hoffman United States Courthouse located at 600 Granby Street, Norfolk, Virginia. Signed by District Judge Mark S. Davis and filed on 4/9/09. (lhow, ) (Additional attachment(s) added on 7/9/2009: # 1 Proposed consent decree) (lhow, ). (Entered: 04/09/2009)

April 9, 2009

April 9, 2009

PACER

Set Fairness Hearing: Fairness hearing set for 7/23/2009 at 10:30 AM (lhow, )

April 10, 2009

April 10, 2009

PACER
11

NOTICE by United States of America of Objection to Consent Decree (Attachments: # 1 Exhibit 1)(Watt, Susan) (Entered: 07/13/2009)

July 13, 2009

July 13, 2009

PACER
12

Memorandum in Support of Entry of the Consent Decree and in Response to Objections filed by United States of America, City of Portsmouth, Virginia. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Watt, Susan) (Entered: 07/13/2009)

July 13, 2009

July 13, 2009

PACER
13

AGREED CONSENT DECREE that the City, its officials, agents, employees, and successors, and all persons acting on its behalf or in active concert or participation with it, are enjoined from using any selection device, including a written examination for the entry-level firefighter position, that has a disparate impact upon African-American applicants on the basis of race and is not job related for that position and consistent with business necessity, or otherwise does not meet the requirements of Title VII. Further, during the term of this Consent Decree, the City shall not administer any written examination for use in the selection of entry-level firefighters without the prior agreement of the United States or, absent such agreement, prior approval of the Court (see order for specifics). No later than 90 days after the date of the entry of this Decree the City shall submit to the United States a proposal to use a selection device in place of the NFST for selecting entry-level firefighters. Upon execution of this Decree the parties shall file a joint motion for the provisional approval and entry of the Decree by the Court and shall request a fairness hearing on the Consent Decree. If the Court determines that the terms of this Decree are fair, reasonable, equitable and otherwise consistent with federal law the Court shall enter the Decree at or following the fairness hearing. Within 30 days after the date of the entry of this Decree by the Court or January 15, 2010, whichever is later, the City shall deposit the sum of $145,000 into an interest bearing account established for this purpose in a federally insured financial institution agreed to by the parties. The funds in the settlement fund, including any interest, shall be distributed by the City to claimants entitled to monetary relief under this Decree. While this Decree remains in effect, the City shall maintain prescribed records. (see order for specifics) This Decree shall be dissolved and that this action shall be dismissed without further order of the Court upon the occurrence of the latter of (a) 30 days after the establishment of an eligibility list or (b) the fulfillment of all the parties obligations regarding individual relief. If both of these events have not occurred within three years of the entry of this Decree the parties shall jointly move the Court for a status hearing. Except as set forth in this Decree, each party shall bear its own costs and expenses incurred as a result of obligations imposed by this Decree, including the cost of all notification and publication procedures. Each party shall bear its own costs, expenses, and attorney's fees incurred in this litigation. The Court shall retain jurisdiction over this Decree for the purpose of resolving any disputes or entering any orders that may be appropriate to implement the Decree. Signed by District Judge Mark S. Davis and filed in open court on 7/23/09. (Attachments: # 1 Appendix)(lhow, ) (Entered: 07/23/2009)

July 23, 2009

July 23, 2009

Clearinghouse

HEARING minutes for proceedings held before District Judge Mark S. Davis: Paul McManus, OCR. Susan Watt, AUSA, Meredith Burrell and Jodi Danis, present on behalf of the United States; Alfred Bates, III and George Oksman, present on behalf of the the City of Portmsouth, VA. Hearing on Approval of Consent Decree held on 7/23/2009. Matter came on for approval of the Consent Decree; argument/presentation of counsel; comments of the Court; Court APPROVES and enters Consent Decree. Status Hearing scheduled for 7/23/12 at 10:00 a.m.; court adjourned. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (vwar)

July 23, 2009

July 23, 2009

PACER
15

TRANSCRIPT of Proceedings held on July 23, 2009 before Judge Mark S. Davis. Court Reporter, Paul L. McManus. The transcript is a paper document which may be viewed at the Clerk's Office. (lhow, ) (Entered: 08/11/2009)

Aug. 11, 2009

Aug. 11, 2009

PACER
16

MOTION to Schedule Fairness Hearing on Individual Relief by United States of America. (Attachments: # 1 Proposed Order)(Watt, Susan) (Entered: 12/20/2009)

Dec. 20, 2009

Dec. 20, 2009

PACER
17

Memorandum in Support re 16 MOTION to Schedule Fairness Hearing on Individual Relief filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Watt, Susan) (Entered: 12/20/2009)

Dec. 20, 2009

Dec. 20, 2009

PACER
18

MOTION for Elizabeth Belle Banaszak to appear Pro hac vice by United States of America. (lhow, ) (Entered: 01/06/2010)

Jan. 6, 2010

Jan. 6, 2010

PACER
19

ORDER granting 18 Motion for Pro hac vice, Appointed Elizabeth Belle Banaszak for United States of America. Signed by District Judge Mark S. Davis and filed on 1/8/10. (lhow, ) (Entered: 01/08/2010)

Jan. 8, 2010

Jan. 8, 2010

PACER
20

ORDER 16 Motion to Schedule Fairness Hearing on Individual Relief is GRANTED. It is further ORDERED that a Fairness Haring on Individual Relief will be held before this Court on 4/29/10, beginning at 10:00 a.m. Signed by District Judge Mark S. Davis and filed on 1/28/10. (lhow, ) (Entered: 01/28/2010)

Jan. 28, 2010

Jan. 28, 2010

PACER

Set Fairness Hearing on Individual Relief for 4/29/2010 at 10:00 AM (lhow, )

Jan. 28, 2010

Jan. 28, 2010

PACER
21

Response to Objections to the Relief Awards List filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Watt, Susan) (Entered: 04/19/2010)

April 19, 2010

April 19, 2010

PACER
22

NOTICE by United States of America of Additional Objection to Relief Awards List and United States' Response (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhbiit E, # 6 Exhibit F)(Watt, Susan) (Entered: 04/26/2010)

April 26, 2010

April 26, 2010

PACER

FAIRNESS HEARING on Individual Relief held before District Judge Mark S. Davis on 4/30/2010. Elizabeth B. Banaszak and Meredith L. Burrell, attorneys with the Dept. of Justice, and Susan Watt, AUSA, present on behalf of plaintiff. Alfred W. Bates, III, attorney with the Office of the City Attorney, present on behalf of the defendant. (Court Reporter, Sue Ash, OCR.) Comments of counsel re. three objectors and background history of case. Objector sworn and testified. Argument for good cause. Court stated findings and rulings on the record. Court rules no good cause exist for two objectors and that it does exist for one. Court rules one objector to be included in the claim. Comments of Court and counsel for plaintiff to recalculate relief to include one objector. Court directed plaintiff to submit an Order including the one objector in claim with attached Relief Awards List. Court stated Court to recess and reconvene at 2:00 p.m. today for plaintiff to submit Order. Counsel for plaintiff addresses Court for ruling on additional amendment for claimant to be eligible for hiring relief. Court stated findings and rulings on the record. Court finds good cause for claimant to be eligible for hiring relief. Court adjourned to reconvene at 2:00 p.m. LATER at 2:00 - Counsel for plaintiff presents to Court for entry, Order for redistribution of funds. Comments of Court and counsel re. Order. Order executed, entered and filed in open Court. Court adjourned. (THIS IS A TEXT ONLY ENTRY, A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY). (evans)

April 29, 2010

April 29, 2010

PACER
24

ORDER re. Fairness Hearing finding good cause and to amend the Relief Awards List, signed by District Judge Mark S. Davis on 4/29/10; executed, entered and filed on 4/29/10.(evans) (Entered: 04/30/2010)

April 29, 2010

April 29, 2010

Clearinghouse
25

MOTION for Extension of Time to Submit Objections, if any, to the City of Portsmouth's Determinations Regarding Priority Hiring Claimants by United States of America. (Watt, Susan) (Entered: 12/21/2010)

Dec. 21, 2010

Dec. 21, 2010

PACER
26

Memorandum in Support re 25 MOTION for Extension of Time to Submit Objections, if any, to the City of Portsmouth's Determinations Regarding Priority Hiring Claimants filed by United States of America. (Watt, Susan) (Entered: 12/21/2010)

Dec. 21, 2010

Dec. 21, 2010

PACER
27

ORDER 25 Motion for Extension of Time to Submit Objections is GRANTED; and further ORDERED that the United States shall submit its objections, if any, to the City of Portsmouth's determinations regarding priority hiring claimants on or before 1/26/11. Signed by Magistrate Judge F. Bradford Stillman and filed on 12/22/10. (lhow, ) (Entered: 12/23/2010)

Dec. 22, 2010

Dec. 22, 2010

PACER
28

NOTICE by United States of America Regarding the United States' Objection to the City of Portsmouth's Determination Regarding Priority Hiring Claimant (Watt, Susan) (Entered: 01/26/2011)

Jan. 26, 2011

Jan. 26, 2011

PACER
29

MOTION to Withdraw as Attorney by City of Portsmouth, Virginia. (Attachments: # 1 Proposed Order Withdrawal as Counsel)(Bates, Alfred) (Entered: 06/24/2011)

June 24, 2011

June 24, 2011

PACER
30

AGREED ORDER granting 29 Motion to Withdraw as Attorney. Attorney Alfred William Bates, III terminated. ORDERED that Alfred W. Bates, III, Attorney for defendant City of Portsmouth, Virginia, be hereby granted leave to withdraw as counsel of record in this case and is relieved of all responsibility as counsel of record. G. Timothy Oksman, City Attorney, and the Office of the City Attorney for Portsmouth, Virginia, will remain as counsel for the aforesaid. Signed by District Judge Mark S. Davis and filed on 6/28/11. (jcow, ) (Entered: 06/28/2011)

June 28, 2011

June 28, 2011

PACER
31

NOTICE of Appearance by Cheran Denise Cordell on behalf of City of Portsmouth, Virginia (Cordell, Cheran) (Entered: 10/25/2011)

Oct. 25, 2011

Oct. 25, 2011

PACER

Status Conference set for 11/16/2011 at 10:00 AM in Norfolk Courtroom 5 before District Judge Mark S. Davis. (vwar)

Oct. 26, 2011

Oct. 26, 2011

PACER
32

STATUS CONFERENCE held before District Judge Mark S. Davis: Paul McManus, OCR. Susan Watt, Meredith Burrell and Elizabeth Banaszak, present on behalf of the United States. Cheron Cordell and George Oksman, present on behalf of the City of Portsmouth. Status Conference held on 11/16/2011. Matter came on for a status hearing. Comments of the Court. Comments of counsel heard re: status concerning Consent Decree. Testimony of Chief Don Horton and Captain William Quilian, Jr. Further comments of the Court. Court adjourned. (vwar) (Entered: 11/16/2011)

Nov. 16, 2011

Nov. 16, 2011

PACER
33

TRANSCRIPT of Status Hearing proceedings for date of 11/16/11, before Judge Mark S. Davis, Court Reporter/Transcriber Paul McManus, Telephone number 757-222-7077. NOTICE RE REDACTION OF TRANCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 1/5/2012. Redacted Transcript Deadline set for 2/6/2012. Release of Transcript Restriction set for 3/5/2012.(McManus, Paul) (Entered: 12/06/2011)

Dec. 6, 2011

Dec. 6, 2011

PACER
34

Status letter by both parties. (jcow, ) (Entered: 07/17/2012)

July 13, 2012

July 13, 2012

PACER
35

ORDER - The status conference currently set for July 23, 2012 is cancelled. Pursuant to the joint representations in the parties' July 13, 2012 letter to the Court, the parties are ORDERED to submit a final order by January 23, 2013, or notify the Court by then if there are any objections to submission ofsuch Order. Signed by District Judge Mark S. Davis and filed on 7/17/12. (jcow, ) (Entered: 07/17/2012)

July 17, 2012

July 17, 2012

PACER

Case reassigned to Magistrate Judge Lawrence R. Leonard. Magistrate Judge F. Bradford Stillman no longer assigned to the case. (jcow, )

Oct. 3, 2012

Oct. 3, 2012

PACER
36

STATUS REPORT by City of Portsmouth, Virginia, United States of America. (Attachments: # 1 Exhibit 1 - Eligible Candidates, # 2 Exhibit 2 - Letters to Priority Hire Claimants)(Watt, Susan) (Entered: 01/23/2013)

Jan. 23, 2013

Jan. 23, 2013

PACER
37

AGREED FINAL ORDER - The Court FINDS that the parties have fulfilled their obligations regarding injunctive and individual relief and that dissolution of the Consent Decree is warranted. The Court hereby ORDERS that the Consent Decree between the parties is TERMINATED and the underlying action is DISMISSED. Signed by District Judge Mark S. Davis on 1/28/13 and filed on 1/29/13. (jcow, ) (Entered: 01/29/2013)

Jan. 29, 2013

Jan. 29, 2013

Clearinghouse

Case Details

State / Territory: Virginia

Case Type(s):

Equal Employment

Key Dates

Filing Date: March 25, 2009

Closing Date: 2013

Case Ongoing: No

Plaintiffs

Plaintiff Description:

African-American applicants to entry-level firefighting positions

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Attorney Organizations:

U.S. Dept. of Justice Civil Rights Division

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

City of Portsmouth Fire Department (Portsmouth), City

Defendant Type(s):

Jurisdiction-wide

Fire

Case Details

Causes of Action:

Title VII (including PDA), 42 U.S.C. § 2000e

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Settlement

Form of Settlement:

Court Approved Settlement or Consent Decree

Amount Defendant Pays: 145,000

Order Duration: 2009 - 2013

Content of Injunction:

Utilize objective hiring/promotion criteria

Retroactive Seniority

Other requirements regarding hiring, promotion, retention

Hire

Issues

General:

Disparate Impact

Pattern or Practice

Discrimination-area:

Hiring

Testing

Discrimination-basis:

Race discrimination

Race:

Black