U.S. v. Vulcan Soc. Inc.

• Decision Date: 22 July 2009
• Docket Number: No. 07-cv-2067 (NGG)(RLM).,07-cv-2067 (NGG)(RLM).
• Citation: 637 F.Supp.2d 77
• Parties: UNITED STATES of America, Plaintiff, and The VULCAN SOCIETY, INC., Marcus Haywood, Candido Nuñez, Roger Gregg, Plaintiff-Intervenors, v. The City of New York, Fire Department of the City of New York, New York City Department of Citywide Administrative Services, and Mayor Michael Bloomberg and New York City Fire Commissioner Nicholas Scoppetta, in their individual and official capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

637 F.Supp.2d 77

UNITED STATES of America, Plaintiff, and The VULCAN SOCIETY, INC., Marcus Haywood, Candido Nuñez, Roger Gregg, Plaintiff-Intervenors, v. The City of New York, Fire Department of the City of New York, New York City Department of Citywide Administrative Services, and Mayor Michael Bloomberg and New York City Fire Commissioner Nicholas Scoppetta, in their individual and official capacities, Defendants.

No. 07-cv-2067 (NGG)(RLM).

United States District Court, E.D. New York.

July 22, 2009.

COPYRIGHT MATERIAL OMITTED

Elliot M. Schachner, Michael J. Goldberger, David Michael Eskew, United States Attorney's Office, Brooklyn, NY, Sharon Seeley, Carolyn P. Weiss, Clare F. Geller, David Nathan Reese, Varda Hussain, U.S. Department of Justice, Washington, DC, for Plaintiff.

Richard A. Levy, Allyson L. Belovin, Dana E. Lossia, Levy Ratner P.C., Beth A. Kaswan, Judith S. Scolnick, Scott and Scott, LLP, Shayana Devendra Kadidal, Anjana Samant, Darius Charney, New York, NY, for Plaintiff-Intervenors.

Georgia Mary Pestana, William S.J. Fraenkel, Office of The Corporation Counsel, Edward Lee Sample, II, Vivien V. Ranada, New York City Law Department, Kami Zumbach Barker, Office of Michael A. Cardozo, New York, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

From 1999 to 2007, the New York City Fire Department used written examinations with discriminatory effects and little relationship to the job of a firefighter to select more than 5,300 candidates for admission to the New York City Fire Academy. These examinations unfairly excluded hundreds of qualified people of color from the opportunity to serve as New York City firefighters. Today, the court holds that New York City's reliance on these examinations constitutes employment discrimination in violation of Title VII of the Civil Rights Act of 1964.

I. INTRODUCTION

In recent years, black and Hispanic residents of New York City (the "City") have come to comprise a substantial portion of the City's population, but their representation in the New York City Fire Department ("FDNY") has remained extraordinarily low.¹ In 2002, the New York City Department of City Planning identified 25% of the City's residents as black and 27% of its residents as Hispanic.² At the same time, however, only 2.6% of its firefighters were black and 3.7% of its firefighters were Hispanic.³ When this litigation commenced in 2007, the percentages of black and Hispanic firefighters had increased to just 3.4% and 6.7%, respectively.⁴ In other words, on a force of 8,998 firefighters, there were just 303 black firefighters and 605 Hispanic firefighters. These numbers stand in stark contrast to some of the nation's other large cities, such as Los Angeles, Chicago, Philadelphia, and Houston, where minority firefighters have been represented in significantly higher percentages.⁵

In this case, Plaintiff United States of America (the "Federal Government") as well as the Vulcan Society, Inc., Marcus Haywood, Candido Nuñez and Roger Gregg (the "Intervenors"), have sued to enforce the right of black and Hispanic candidates to be treated fairly in the application process for positions in the FDNY. Specifically, the Federal Government and the Intervenors ("Plaintiffs")⁶ challenge the City's reliance on two written examinations that are 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 has appointed more than 5,300 entry-level firefighters based upon their results. Although Plaintiffs identify approximately 3,100 of the examination candidates as black and approximately 4,200 of the examination candidates as Hispanic, the City has appointed just 184 black firefighters and 461 Hispanic firefighters from the challenged examinations. (See Section III.A, infra.)

Plaintiffs assert that the City's reliance on Exams 7029 and 2043 in selecting entry-level firefighters has had a disparate impact on black and Hispanic candidates in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The Intervenors also claim under a disparate treatment theory, that the City, two city agencies, the Mayor and the Fire Commissioner "have 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 constitute intentional race discrimination. . . ." (Intervenors' Compl. (Docket Entry # 48) ¶ 51.)

To remedy these claimed violations, Plaintiffs seek various forms of injunctive and monetary relief. The Federal Government seeks to enjoin the City from engaging in discriminatory practices "against blacks on the basis of race and against Hispanics on the basis of national origin," and seeks a specific injunction against the practices challenged in this case. (See Compl. (Docket Entry # 1) ¶ 38.) It also asks 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. (Id.) The Intervenors seek 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." (Int. Compl., Prayer For Relief ¶ 3(d).) The Intervenors seek 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." (Id. ¶¶ 3(e), (f).) The Intervenors also seek damages and other fees. (Id. ¶¶ 4-9.)

This is not the first time the City has been brought to federal court to defend its entry-level firefighter examinations against charges of discrimination. In the early 1970s, Judge Weinfeld in the Southern District of New York found that the City's written and physical examinations for entry-level firefighters violated the Equal Protection Clause of the Constitution because of their discriminatory impact on black and Hispanic applicants. See Vulcan Soc'y of New York City Fire Dep't, Inc. v. Civil Serv. Comm'n, 360 F.Supp. 1265, 1269 (S.D.N.Y.1973), affirmed in relevant part by 490 F.2d 387 (2d Cir.1973). Following Judge Weinfeld's decision in Vulcan Society, the City contracted with a private consulting firm to construct valid written and physical examinations; these contracts were cancelled three years later, however, apparently on account of a budget crisis. See Berkman v. City of New York, 536 F.Supp. 177, 184 (E.D.N.Y. 1982).⁷ At the time of Vulcan Society, Judge Weinfeld noted the "overwhelming disparity between minority representation in the [FDNY] (5%) and in the general population of New York City within the age group eligible for appointment (32%)." Vulcan Soc'y, 360 F.Supp. at 1269. In the three decades that have followed, these minority groups have come to represent an even greater share of the City's population. Despite these changes, the overwhelmingly monochromatic composition of the FDNY has stubbornly persisted.⁸

This court has already issued several decisions in the case. I have bifurcated the liability and relief phases (see Docket Entry # 47), permitted intervention by the Intervenors (see id.), denied the Intervenors' motion to amend the Intervenors' Complaint (see Docket Entry # 182), declined to dismiss the Intervenors' Complaint on timeliness grounds (see Docket Entry # 231), and certified a class consisting of black applicants for the position of entry-level firefighter (see Docket Entry # 281).

Now before the court are Motions for Summary Judgment by the Federal Government and the Intervenors. (Docket Entries ## 251, 260.) The Federal Government and the Intervenors have moved for summary judgment on the prima facie case of disparate impact, and the Federal Government has joined the Intervenors' Motion for Summary Judgment on the City's business necessity defense.⁹ (See Docket Entries ## 251, 260, 263.)

Upon consideration of the parties' submissions and oral argument, the court concludes that Plaintiffs have established a prima facie case that the City's use of the two written examinations has resulted in a disparate impact upon black and Hispanic applicants for the position of entry-level firefighter. The court also concludes that the City has failed to present sufficient evidence supporting a business justification for its employment practices. I therefore grant Plaintiffs' Motions for Summary Judgment in their entirety.

In essence, my ruling is premised upon two basic conclusions. First, Plaintiffs have shown that there is no triable issue of fact as to whether the City's use of Written Exams 7029 and 2043 has resulted in a statistically and practically significant adverse impact on black and Hispanic firefighter applicants. Black and Hispanic applicants disproportionately failed the written examinations, and those who passed were placed disproportionately lower down than white candidates on the hierarchical hiring lists resulting from their scores. Second, although the City has had the opportunity to justify this adverse impact by showing that it used the written examinations to test for the relevant skills and abilities of entry-level firefighters, the City has failed to raise a triable issue on this defense. Under Second Circuit precedent, the evidence presented by the City is insufficient as a matter of law to justify its reliance on the challenged examinations.

Before proceeding to the legal...