United States v. City of New York

Citations: 877 F. Supp. 2d 57; 2012 U.S. Dist. LEXIS 186292; 2012 WL 2863456Docket: Civ. Action No. 07-cv-2067 (NGG)(RLM)

Court: District Court, E.D. New York; July 10, 2012; Federal District Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

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In 2007, the United States filed a lawsuit against the City of New York, claiming that the City’s firefighter selection policies violated Title VII of the Civil Rights Act by disproportionately affecting black and Hispanic candidates through the use of Written Exams 7029 and 2043. The Vulcan Society and other individuals intervened, asserting similar claims of disparate impact and treatment. In July 2009, the Court ruled in favor of the United States and intervenors, determining that the exams had an unlawful disparate impact under Title VII. By January 2010, the Court granted summary judgment for the intervenors on disparate treatment, ruling that the exams constituted intentional discrimination against black candidates, violating Title VII and the Equal Protection Clause.

Following these rulings, the Court moved to the remedial phase, deciding that eligible victims of discrimination could receive individual relief. Key provisions of the Relief Order include that only black and Hispanic applicants who took the relevant exams will be eligible for relief, excluding those who took other exams. The Relief Order outlines a fairness hearing and specifies eligibility criteria for relief, which includes: (1) back pay with pre-judgment interest; (2) priority hiring consideration for up to 293 victims; and (3) retroactive seniority awards for current firefighters and up to 293 hired individuals. Additionally, black victims may qualify for noneconomic damages for lost enjoyment and job satisfaction related to the firefighter role. The Relief Order refers to previous court orders for more detailed information on individual relief forms.

Copies of the orders can be accessed for free at www.justice.gov/fdnycase or from the Clerk of the Court. The Court has ordered definitions for key terms involved in the case, including "Parties," which consists of the United States, the City of New York, and the Plaintiffs-Intervenors, categorized into three subclasses represented by various legal counsel. "Claimant" refers to individuals who fall into either the Delayed-Hire or Non-hire categories. An "entry-level firefighter" is defined as any person in the initial uniformed position within the FDNY, irrespective of their specific title during training. "Individual relief" encompasses awards of back pay, benefits, prejudgment interest, priority hire offers, retroactive seniority, and potential noneconomic damages. The "median hire date" varies based on the written exam taken by the claimant, with specific dates designated for each exam. "Special Masters" are appointed individuals responsible for overseeing the claims process.

A Fairness Hearing will be conducted on October 1, 2012, at 9:00 a.m. at the United States District Court for the Eastern District of New York to address objections to the Relief Order before implementation. The City is tasked with notifying affected individuals of the hearing, and those wishing to object must do so in writing according to the notice instructions. Attendance at the hearing is not mandatory for the Court to consider objections.

Eligibility criteria for individual relief are established for applicants affected by the City’s discrimination regarding firefighter hiring. 

**Non-hire Claimant** criteria include any black or Hispanic individual who: 
1. Failed Written Exam 7029 with a score of 25 or higher and was not later appointed as an entry-level firefighter.
2. Failed Written Exam 2043 with a score of 25 or higher and was not later appointed as an entry-level firefighter.
3. Passed Written Exam 2043, had a list number higher than 5646, was not appointed, and did not receive specific disposition codes from the Department of Citywide Administration Services (DCAS) indicating non-selection or disqualification. This part also acknowledges that rank on the eligible list can effectively prevent hiring, thus excluding those passed but not hired for reasons unrelated to their rank.

**Delayed-Hire Claimant** criteria include any black or Hispanic individual who:
1. Passed Written Exam 7029 and was appointed as an entry-level firefighter after February 4, 2001, without receiving specific DCAS disposition codes.
2. Passed Written Exam 2043 and was appointed after May 25, 2004, also without receiving specific DCAS disposition codes.
3. Failed Written Exam 7029 but was appointed from a different eligible list after February 4, 2001.
4. Failed Written Exam 2043 but was appointed from a different eligible list after May 25, 2004.

These criteria ensure that only those demonstrably affected by discrimination in the hiring process are eligible for relief.

To qualify for individual relief as a Non-hire or Delayed-Hire Claimant, black or Hispanic individuals must meet specific lawful qualifications in addition to their claimant status. These qualifications include: (a) being at least 17.5 years old by the end of the application period for the relevant examinations (October 16, 1998 for Exam 7029 and October 31, 2002 for Exam 2043); (b) being no older than 29 at the beginning of the application period, with a possible six-year deduction for military service; (c) possessing the ability to understand and communicate in English; (d) obtaining citizenship within four years after the establishment of the eligible list (November 15, 2000 for Exam 7029 and May 5, 2004 for Exam 2043); (e) not having felony convictions four years post the eligible list establishment; and (f) not receiving a dishonorable discharge from the Armed Forces within the same timeframe.

Only individuals who fulfill these criteria are eligible for awards including back pay, retroactive seniority, or noneconomic damages, and can receive priority hiring relief if they currently meet the qualifications. Furthermore, to be hired, these individuals must pass Exam 2000, provided it complies with Title VII.

Back pay is defined as the monetary compensation reflecting wages and benefits a Claimant would have earned had they been hired as an entry-level firefighter on their presumptive hire date. The Court has calculated the total pre-mitigation back pay owed to eligible Claimants through December 31, 2010 to be $128,696,803, with allocations detailed for various claimant categories based on discrimination impact.

The back pay damages available to black Claimants exceed those available to Hispanic Claimants due to the Court's prior finding that the City's use of Written Exams 7029 and 2043 disproportionately excluded more black candidates from hiring opportunities. During the claims process, the total back pay will be distributed proportionately among eligible Claimants, as the number of Claimants is expected to surpass the hiring shortfalls caused by the City's violations of Title VII. Each Claimant's gross award will be adjusted based on their interim earnings, using a specific calculation method.

For Non-hire Claimants, the allocation process includes categorizing them based on exam and race, calculating the aggregate back pay for one hiring shortfall, determining each Claimant's pro rata share, calculating a back pay reduction ratio, and adjusting gross awards by discounted interim earnings. This results in net back pay awards for each year, which will include compounded pre-judgment interest.

For Delayed-Hire Claimants, a similar process is followed, involving categorization, calculating the value of hiring delays, determining gross back pay losses based on delay duration, and adjusting for discounted interim earnings. The final net back pay award will also include compounded interest.

Additionally, monetary awards for lost fringe benefits may be included in the back pay awards for both Non-hire and Delayed-Hire Claimants.

Priority hiring relief will be granted by the Court for up to 293 eligible Non-hire Claimants, specifically 186 black and 107 Hispanic individuals. To qualify, these claimants, referred to as priority hire claimants, must complete the same entry-level firefighter selection process as other applicants, which includes passing Exam 2000 (pending Court approval), the Candidate Physical Ability Test (CPAT), and a comprehensive background check. 

The Court will approve a list of eligible claimants, and the City is required to hire them at specified ratios: 2 out of every 5 new hires must be black claimants until 186 black claimants are hired or that group is exhausted, and 1 out of every 5 must be Hispanic claimants until 107 Hispanic claimants are hired or that group is exhausted. If there are more eligible claimants than available positions, the City may determine the order of processing, provided it does so without discrimination or retaliation.

Claimants are considered hired only upon starting paid employment as entry-level firefighters. They retain the right to apply for or be promoted from EMT to entry-level firefighter under regular City processes, but such actions will not count towards the City’s priority hiring obligations or affect eligibility for monetary relief. The City cannot refuse to hire a claimant based on their eligibility for priority hiring relief. Additionally, the City will provide priority hire claimants with retroactive salary increases and seniority from their admission date to the Fire Academy.

Retroactive seniority relief will be granted to eligible claimants who experienced discrimination by the City, providing them with seniority credit for the entry-level firefighter position based on their presumptive hire dates. This relief includes retroactive "benefits seniority," which affects salary, pension benefits, and leave accrual, as well as retroactive "competitive seniority," relevant for competition among incumbents for transfers, promotions, and layoffs, though it cannot fulfill minimum time-in-grade promotion requirements. Non-hire Claimants receiving priority hiring relief and Delayed-Hire Claimants will automatically qualify for retroactive seniority, calculated using median hire dates from relevant exams. 

Additionally, non-economic damages may be awarded to eligible Black Claimants, covering intangible losses such as job prestige, satisfaction, camaraderie, job security, and career advancement opportunities. 

A structured claims process will assess claimant eligibility and award amounts, overseen by four Special Masters appointed by the Court. The process involves mailing claim forms, determining initial eligibility, allowing objections to determinations, conducting a Fairness Hearing, and ultimately distributing awards based on independent assessments and Court evaluations. Specific steps and deadlines will be outlined in future orders.

Provisionally entered on July 9, 2012, in Brooklyn, New York, this Relief Order is subject to objections and the completion of a Fairness Hearing. A comprehensive factual and procedural background exists, but only pertinent events related to this Relief Order are summarized. A previous Memorandum Order from October 5, 2011, following an August 2011 bench trial, provides a more detailed history. The City is currently appealing the Court's ruling on disparate treatment liability in the Second Circuit. Notice of this Relief Order and the Fairness Hearing will be disseminated to potentially affected individuals, with the distribution process detailed in a separate order.

The Relief Order excludes back pay and prejudgment interest, which began accruing on January 1, 2011, until priority hires join the FDNY. After their hiring, the parties may seek a determination of additional wage loss from the end of 2010 to the hiring date. Fringe benefits, to be calculated based on actual unreimbursed expenses incurred by Claimants, are also excluded. Additional briefing on fringe benefit calculation methods is being submitted. The City is responsible for all costs incurred in the remedy phase, including attorney fees and notification costs, whereas the United States will cover its own attorney and expert fees. The City has argued for potential reductions in awards for Delayed-Hire Claimants responsible for hiring delays, a matter not yet ruled on by the Court. Specific procedures and deadlines for evaluating and offering jobs to eligible priority hire claimants will be outlined in a future order.