717 F.3d 72 (2nd Cir. 2013), 11-5113-cv(L), United States v. City of New York

Docket Nº:11-5113-cv(L), 12-491-cv(XAP).
Citation:717 F.3d 72
Opinion Judge:JON O. NEWMAN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. CITY OF NEW YORK, Michael Bloomberg Mayor, and Nicholas Scoppetta, New York Fire Commissioner, in their individual and official capacities, Defendants-Appellants-Cross-Appellees, The Vulcan Society, Inc., Marcus Haywood, Candido Nunez, Roger Gregg, Intervenors-Plaintiffs-Appellees-Cross-Appellants Ne
Attorney:Lisa J. Stark, United States Department of Justice, Washington, D.C. (Thomas E. Perez, Dennis J. Dimsey, Holly A. Thomas, United States Department of Justice, Washington, D.C., on the brief), for Appellee. Richard A. Levy, Levy Ratner, P.C., New York, N.Y. (Center for Constitutional Rights, New Y...
Judge Panel:Before NEWMAN, WINTER, and POOLER, Circuit Judges. Judge POOLER dissents in part with a separate opinion. POOLER, Circuit Judge, dissenting:
Case Date:May 14, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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717 F.3d 72 (2nd Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

The Vulcan Society, Inc., Marcus Haywood, Candido Nunez, Roger Gregg, Intervenors-Plaintiffs-Appellees-Cross-Appellants

v.

CITY OF NEW YORK, Michael Bloomberg Mayor, and Nicholas Scoppetta, New York Fire Commissioner, in their individual and official capacities, Defendants-Appellants-Cross-Appellees,

New York City Department of Citywide Administrative Service, New York City Fire Department, Defendants.1

Nos. 11-5113-cv(L), 12-491-cv(XAP).

United States Court of Appeals, Second Circuit.

May 14, 2013

Heard: June 26, 2012.

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Lisa J. Stark, United States Department of Justice, Washington, D.C. (Thomas E. Perez, Dennis J. Dimsey, Holly A. Thomas, United States Department of Justice, Washington, D.C., on the brief), for Appellee.

Richard A. Levy, Levy Ratner, P.C., New York, N.Y. (Center for Constitutional Rights, New York, NY; Scott + Scott LLP, New York, NY, on the brief), for Plaintiffs-Appellees-Cross-Appellants.

Deborah A. Brenner, Asst. Corporation Counsel, New York, N.Y. (Michael A. Cardozo, Corporation Counsel of the City of New York, Alan G. Krams, Asst. Corporation Counsel, New York, New York, N.Y., on the brief), for Appellants-Cross-Appellees.

Keith M. Sullivan, Sullivan & Galleshaw, LLP, Queens, NY, for amicus curiae Merit Matters, Inc., in support of Appellants-Cross-Appellees.

Lawrence S. Lustberg, Alicia L. Bannon, Gibbons P.C., Newark, NJ, for amicus curiae International Association of Black Professional Firefighter and Black Chief Officers Committee, in support of Plaintiffs-Appellees-Cross-Appellants.

Rachel Godsil, Kathryn Pearson, Jon Romberg, Andrew Van Houter, Seton Hall University School of Law, Center for Social Justice, Newark, NJ, for amicus curiae American Values Institute, in support of Plaintiffs-Intervenors-Appellees.

ReNika C. Moore, Debo P. Adegbile, Elise C. Boddie, Johnathan J. Smith, Ria A. Tabacco, NAACP Legal Defense and Educational Fund, Inc., New York, NY; Joshua Civin, Washington, D.C., for amicus curiae NAACP Legal Defense & Educational Fund, Inc., in support of Appellees.

Before NEWMAN, WINTER, and POOLER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This case, brought by the United States pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., concerns allegations of racial discrimination in the hiring of New York City firefighters. The principal issues are whether summary judgment was properly entered against the City on a claim of intentional discrimination, whether claims against the City's Mayor and former Fire Commissioner were properly dismissed, whether an injunction, based both on the finding of intentional discrimination and an unchallenged finding of disparate impact arising from entry-level exams, is too broad, and whether, in the event of a remand, the case, or some portion of it, should be reassigned to another district judge. These issues arise on an appeal from the December 8, 2011, order and a cross-appeal from February 21, 2012, partial final judgment of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, District Judge) in a suit brought by the United States against the City of New York. The Vulcan Society, Inc. (" the Vulcans" or " the Intervenors" ), an organization of black 2 firefighters, intervened, along with several named firefighters. The Intervenors' complaint added as defendants the Fire Department of the City of New York (" FDNY" ), the New York City Department of Citywide Administrative Services (" DCAS" ), and Mayor Michael Bloomberg and then-New York Fire Commissioner Nicholas Scoppetta in their individual and official capacities.

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The City appeals from the December 8, 2011, order issuing a far-reaching permanent injunction against the City. The City contends that this appeal brings up for review the January 13, 2010, order granting summary judgment against the City on the Intervenors' disparate treatment claim, which alleged intentional discrimination. The Intervenors cross-appeal from the February 1, 2012, partial final judgment, entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, dismissing the Intervenors' claims against Defendants Mayor Bloomberg and Fire Commissioner Scoppetta on grounds of Immunity.

We conclude that (1) summary judgment was improperly entered on the Intervenors' disparate treatment claim, (2) the federal and state law claims against Mayor Bloomberg were properly dismissed, as were the state law claims against Commissioner Scoppetta, but the federal law claims against Commissioner Scoppetta should be reinstated, (3) most portions of the injunction based on the unchallenged disparate impact finding were within the District Court's remedial discretion, but other portions, particularly those portions based on the improper discriminatory treatment ruling, exceeded that discretion, and (4) on remand, the bench trial on the liability phase of the disparate treatment claim against the City should be reassigned to a different district judge. We therefore, affirm in part, vacate in part, and remand.

Background

The extensive factual and procedural background of this litigation is set forth in detail in United States v. City of New York, 637 F.Supp.2d 77 (E.D.N.Y.2009) (" Disparate Impact Op. " ).

Discrimination history. New York City has a substantial black and Hispanic population. According to the Department of City Planning, in 2002, blacks were 25 percent and Hispanics were 27 percent of the population. At that time, the percentage of firefighters who were black was 2.6 and the percentage who were Hispanic was 3.7. The low percentage of minority personnel in the FDNY has persisted for some time. From 1963 to 1971 only 4 percent of all FDNY employees were black. When the pending litigation commenced in 2007, the percentages of black and Hispanic firefighters had increased to only 3.4 percent and 6.7 percent, respectively. The black firefighter percentage for New York City has been significantly below those for other cities with substantial black population. In 1999, for example, when the black firefighter percentage for New York City was 2.9 percent, the percentages were 14 percent in Los Angeles, 17.1 percent in Houston, 20.4 percent in Chicago, and 26.3 percent in Philadelphia. The City's black percentage of firefighters has also been significantly below the percentages for other uniformed services in New York City. As of 2000, the percentage of blacks in the FDNY was 3.8 percent; the percentages in the Police Department, the Sanitation Department, and the Corrections Department were 16.6, 24.3, and 61.4, respectively.

In 1973, the written examination for entry-level New York City firefighters was held to have a discriminatory impact on minority applicants. See Vulcan Society of New York City Fire Dep't, Inc. v. Civil Service Commission, 360 F.Supp. 1265, 1277 (S.D.N.Y.), aff'd in relevant part, 490 F.2d 387 (2d Cir.1973). Entry-level exams used for firefighters in 1988 and 1992 have a disparate impact on blacks,3 although use

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of these exams was not challenged in court.

Pending litigation— disparate impact claims. In August 2002, the Vulcans filed an unlawful discrimination complaint with the federal Equal Employment Opportunity Commission (" EEOC" ). The EEOC subsequently referred the complaint to the Department of Justice. In May 2007, the United States (" the Government" ) sued the City under Title VII, challenging two separate FDNY employment procedures for screening and selecting entry-level firefighters alleged to have an unjustified disparate impact on black and Hispanic applicants. Specifically, the Government challenged the use of two written examinations, No. 7029, administered in 1998, and No. 2043, administered in 2002 (the " Exams" ), that initially screened applicants on a pass/fail basis. The Government also challenged the rank-order processing of applicants, i.e., establishing a passing score to reflect FDNY needs for new recruits and listing, in order of test scores, all applicants above that score. Candidates who passed the written FDNY Exams and a physical performance test were place on a rank-order eligibility list that was based, in part, on the written examination score.

The FDNY administered the Exams to more that 34,000 firefighter applicants and hired more than 5,300. Of the 3,100 blacks and 4,200 Hispanics who took the Exams, the FDNY hired 461 blacks and 184 Hispanics. For Exam No. 7029, the pass rate for whites was 89.9 percent and for blacks 60.3 percent. For Exam No. 2043, the pass rate for whites was 97.2 percent and or blacks 85.4 percent.

The Government's complaint alleged that the Exams were neither job-related nor consistent with business necessity, and sought to enjoin the challenged procedures and to require that the City take " appropriate action to correct the present effects of its discriminatory policies and practices."

On September 5, 2007, the District Court permitted the Vulcans and several named individuals to intervene.4 The Intervenors' complaint added as defendants the DCAS, the FDNY, Mayor Bloomberg, and then-Fire Commissioner Scoppetta. After the District Court bifurcated the case into separate liability and relief phases, the Government and the Intervenors moved for partial summary judgment on the disparate impact claim. Thereafter, the Court, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, certified a class consisting of black applicants for the position of entry level firefighters.5

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