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United States of America and Vulcan Society, Inc. v. City of New York

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Synopsis

United States, et al. v City of New York is a federal class action lawsuit originating from Equal Employment Opportunity Commission (EEOC) charges filed by CCR on behalf of the Vulcan Society and three individual African-American firefighter applicants, charging the New York City Fire Department (FDNY) with racially discriminatory hiring practices.

Status

On March 18, 2014 the Vulcan Society, CCR and Levy Ratner announced a settlement with the city on the Intentional Discrimination and Monetary Relief portion of this case.

Description

United States v. City of New York is a class action lawsuit that originates from two Equal Employment Opportunity Commission (EEOC) charges filed by the Center for Constitutional Rights (CCR) on behalf of the Vulcan Society, the fraternal organization of Black firefighters, in August 2002, and on behalf of three Black firefighter applicants, Marcus Haywood, Candido Nunez and Roger Gregg, in February 2005. The lawsuit charges the FDNY with discriminatory hiring practices that violate Title VII of the Civil Rights Act of 1964, the United States and New York State constitutions, and New York State Human Rights Law.

The EEOC attempted an informal resolution of the dispute between the parties. However, conciliation attempts failed when the City would not come to the table, and the EEOC referred the charge to the DOJ, a standard procedure when an EEOC charge is brought against a public employer. The DOJ then filed a lawsuit against the City which the Vulcan Society and CCR have since become a party of.

When the first EEOC charge was filed in 2002, New York City’s fire department was 2.9 percent Black. The numbers have not changed at all since then, despite the fact that the City has had five years to try to remedy the problem. As of March 2007, the FDNY included 335 Black firefighters out of a total of approximately 11,500 firefighters, still barely more than 2.9 percent. New York City as a whole, by comparison, is 27 percent Black.

New York City also has the least diverse fire department of any major city in America – only 7.4 percent Black and Latino. Fifty-seven percent of Los Angeles’ firefighters, 51 percent of Philadelphia’s, and 40 percent of Boston’s are people of color. The fire departments are 30 percent Black in Baltimore and 23 percent Black in Chicago.

The central issue in the case is whether the skills measured by the FDNY’s written exam have any relationship to skills necessary to be a good firefighter – the EEOC and DOJ have concluded that they do not. CCR contends that there is no reason the City should be using this test to hire firefighters and that continuing to use it is against the law.

The DOJ and CCR are seeking relief for Black and Latino candidates who were not hired or whose hiring was delayed because of the use of the written tests given in 1999 and 2002, scores from which were used to rank candidates for hiring. Because this test, which has no valid relationship to job skills, has a disparate impact on Blacks and Latinos, its use by the FDNY is illegal under Title VII. Remedies will be decided by the court, but CCR believes they will include forcing the FDNY to hire affected Black and Latino candidates and give them back pay and retroactive seniority.

Timeline

On April 9, 2002, the Vulcan Society filed a federal EEOC complaint against the New York City Fire Department, charging the FDNY with discriminatory hiring practices.

In August 2002, the Center for Constitutional Rights filed EEOC charges on behalf of the Vulcan Society and served as adjudicatory in this case.

On February 23, 2005, CCR filed a second EEOC charge on behalf of three Black firefighter applicants, Marcus Haywood, Candido Nunez and Roger Gregg.

On November 29, 2005, the EEOC issued a determination in favor of the individual firefighter applicants, stating that "the difference in pass/fail rates is highly statistically significant." The determination went on to say, “the test's impact on those who passed shows that the distribution of Blacks by scoring band is the opposite of the distribution of whites ... the higher the score, the smaller the proportion of Blacks. ... 2.6 percent of the top scoring band was Black, while 86.5 percent of it was white."

On May 21, 2007, the Department of Justice filed a lawsuit in the United States District Court for the Eastern District of New York, United States of America v. City of New York, against the City of New York.

On July 11, 2007, the Uniformed Firefighters Association (UFA) asked for permission to intervene in the DOJ lawsuit on the side of the City and other defendants.

On July 17, 2007, CCR filed to intervene in the DOJ lawsuit on behalf of the Vulcan Society and Messrs. Haywood, Nunez and Gregg, as plaintiffs.

On September 5, 2007, United States District Court Judge Nicholas G. Garaufis granted the Vulcans' and individual firefighter applicants' motion to intervene and denied the UFA's motion to intervene.

On September 25, 2007, the Vulcans and the three individuals officially intervened as plaintiffs in the lawsuit.

On April 25, 2008, the Vulcans and the individual plaintiffs filed a motion for class certification.

On February 23, 2009, the Vulcans, the individual plaintiffs and the DOJ moved for partial summary judgement.

On March 19, 2009, oral argument on the summary judgment motions and the Vulcans and individual plaintiffs’ motion to certify a class was held before Judge Garaufis at the United States District Courthouse in Brooklyn.

On May 11, 2009, the United States District Court certified the case as a class action with the Vulcan Society and individual plaintiffs named as class representatives.

On July 22, 2009, the United States District Court granted summary judgement to the Vulcans, the individual plaintiffs and the DOJ on their disparate impact claims.

On August 5, 2009, the United States District Court granted the Vulcans' and individual plaintiffs' motion to compel the deposition of Mayor Michael Bloomberg.

On September 18, 2009, Defendants moved to dismiss, and for summary judgment on, the Vulcans and individual plaintiffs’ claims of intentional discrimination against the City, Mayor Bloomberg and Fire Commissioner Nicholas Scoppetta.

On October 30, 2009, the Vulcans and the individual plaintiffs cross- moved for summary judgment on these same intentional discrimination claims.

On January 13, 2010, the United States District Court granted summary judgment in the Vulcans and individual plaintiffs’ favor on their intentional discrimination claims against the City but granted summary judgment in favor of defendants on the intentional discrimination claims against Mayor Bloomberg and Commissioner Scoppetta.

On January 21, 2010 in the first of several remedial orders in this case, the District Court ordered that the City would have to (1) hire as firefighters up to 293 Black and Hispanic applicants who took either the 1999 or 2002 firefighter exams, and give these individuals retroactive seniority and (2) work with the Vulcans and DOJ to develop a new, non-discriminatory firefighter test.

On May 26, 2010, the District Court appointed former Manhattan District Attorney Robert Morgenthau as special master in the remedial phase of the case.

On June 1, 2010, Judge Garaufis’s appointee for Special Master, former Manhattan District Attorney Robert Morgenthau, withdrew from consideration and Mary Jo White was appointed instead.

On August 4th 2010 Judge Garaufis found that the most recent exam (Exam 6019) is also unlawful under the Civil Rights Act.

Fall 2010:  The parties began working with Special Master Mary Jo White to develop a new, valid, and non-discriminatory entry level firefighter exam, which will be administered in January 2012.

September 29, 2010: The Vulcans filed a motion for affirmative injunctive relief and compensatory damages in light of the Court’s January 2010 intentional discrimination finding. In this motion, the Vulcans asked the Court to order that the City make significant changes to its firefighter hiring practices, beyond the exam, to remedy the effects of its forty years of discrimination against black firefighter applicants.  These changes include: (1) enhanced recruitment of minority applicants, (2) creation of a more objective and transparent applicant character and background investigation process, (3) reinstatement of the FDNY fire safety cadet program to increase interest in the firefighter career among high school and college students of color in the City, and (4) improvements to the way the FDNY investigates and resolves complaints of racial discrimination in the workplace.  The Vulcans also asked for $14 million in compensatory damages for the thousands of black victims of the discriminatory 1999 and 2002 firefighter exams. 

August 2011: U.S. District Court Judge Nicholas Garaufis held a three-week trial in federal court in Brooklyn on the question of affirmative injunctive relief and compensatory damages.  During this trial, the Vulcans and the City called several witnesses to testify about the City’s firefighter recruitment efforts, the firefighter applicant character and background investigation process, the Cadet program, the FDNY’s investigations of workplace discrimination complaints, and issues related to compensatory damages.

September 30, 2011: Judge Garaufis issued his “Findings of Fact” for the injunctive relief trial. In an 81-page opinion, he found that (1) Court supervision of the FDNY’s future firefighter recruitment efforts will be necessary, (2) the character and background investigation process must be changed to make it more transparent and fair to black applicants, and (3) the FDNY’s Equal Employment Office does not effectively and efficiently investigate and resolve complaints of workplace racial discrimination.

On October 4, 2011, U.S. District Court Judge Nicholas Garaufis ruled the New York City Fire Department's hiring practices are broadly discriminatory on the basis of race and ordered major reforms to be overseen by the court. Read the CCR press release here.

On December 8, 2011 the City appealed the District Court's October 4, 2011 decision and it's January 13, 2010 decision finding the City liable for intentional discrimination.  The appeal is currently being briefed in the U.S. Court of Appeals for the 2nd Circuit.

On March 8, 2012 the U.S. District Court ordered that the City will have to pay up to $128.6 million in backpay to the thousands of Black and Hispanic firefighter applicants who were either not hired or hired years late because of the city's discriminatory 1999 and 2002 firefighter exams.

On June 26, 2012 Oral Argument was held in the 2nd Circuit Court of Appeals, on the City's appeal of the District court's Intentional discrimination finding and it's October 4, 2011 Injunctive Relief decision.

In September 2012 the District court approved the new firefighter exam which was designed by all pof the parties' experts and under supervision of Special Master Mary Jo White.

In July 2013 the first group of firefighters hired from the new exam started at the FDNY Fire Academy.  This class, which graduated in December 2013, was the most racially diverse class in the history of the FDNY.

In May 2013, the 2nd Circuit issued its decision upholding virtually all of the Injuctinve Relief ordered by the District Court but overturned the summary judgement decision on intentional discrimination and remanded that issue for trial before a different district judge.

On March 18, 2014 the Vulcan Society, CCR and Levy Ratner announced a settlement with the city on the Intentional Discrimination and Monetary Relief portion of this case.