Margerum v. City of Buffalo

CourtNew York Court of Appeals
Writing for the CourtChief Judge LIPPMAN.
Citation2015 N.Y. Slip Op. 01378,24 N.Y.3d 721,5 N.Y.S.3d 336,28 N.E.3d 515
Decision Date17 February 2015
PartiesEugene MARGERUM et al., Appellants–Respondents, v. CITY OF BUFFALO et al., Respondents–Appellants.

24 N.Y.3d 721
28 N.E.3d 515
5 N.Y.S.3d 336
2015 N.Y. Slip Op. 01378

Eugene MARGERUM et al., Appellants–Respondents
CITY OF BUFFALO et al., Respondents–Appellants.

Court of Appeals of New York.

Feb. 17, 2015.

5 N.Y.S.3d 337

Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming and Christen Archer Pierrot of counsel), for appellants-respondents.

Hodgson Russ LLP, Buffalo (Jason E. Markel, Adam W. Perry, Stephen W. Kelkenberg and Joshua Feinstein of counsel), for respondents-appellants.

Latino Justice PRLDEF, New York City (Jackson Chin, Juan Cartagena and Jose Perez of counsel), for National Association of Hispanic Firefighters, amicus curiae.

Creighton Johnsen & Giroux, Buffalo (Jonathan G. Johnsen of counsel), for Buffalo Professional Firefighters Association, Local 282, IAFF, AFL–CIO, amicus curiae.

National Association for the Advancement of Colored People, Baltimore, Maryland (Anson C. Asaka, Marshall W. Taylor and Kyhla D. Craine of counsel), for The National Association for the Advancement of Colored People, amicus curiae.

Law Offices of Prathima Reddy LLC, Buffalo (Prathima Reddy of counsel), and Amanda Keller, International Municipal Lawyers Association, Bethesda, Maryland, for International Municipal Lawyers Association and others, amici curiae.

Pacific Legal Foundation, Sacramento, California (Theodore Hadzi–Antich, Meriem L. Hubbard and Joshua P. Thompson of counsel), for Pacific Legal Foundation and others, amici curiae.


Chief Judge LIPPMAN.

28 N.E.3d 516
24 N.Y.3d 727

We hold that a notice of claim need not be filed for a Human Rights Law claim against a municipality and that plaintiffs should not have been granted summary judgment on the issue of liability involving discrimination as to civil service lists for Buffalo firefighters. We therefore remit for further proceedings.

In 1974, the United States sued the City of Buffalo in the Western District of New York. Among other things, the suit alleged that the written civil service examination developed by the New York State Department of Civil Service and used by the City to select entry-level firefighters and police officers had a discriminatory adverse impact against minorities. The District Court found that the City's continued use of the State's examination was part of a pattern or practice of discrimination against African–Americans, Hispanics and women in the fire and police departments (see United States v. City of Buffalo, 457 F.Supp. 612 [W.D.N.Y.1978] ). The District Court issued a “Remedial Decree” designed to remedy the effects of past discrimination, which imposed interim hiring ratios and affirmative recruitment efforts to increase the percentages of underrepresented classes. The decree was, for

28 N.E.3d 517
5 N.Y.S.3d 338

the most part, affirmed by the Second Circuit (633 F.2d 643 [2d Cir.1980] ).

In 1998, Members of Color Helping All (MOCHA), a not-for-profit organization of African–American firefighters, brought a putative class action against the City of Buffalo in the Western District of New York, alleging racially discriminatory practices

24 N.Y.3d 728

by the Buffalo Fire Department in violation of title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq. ) and the New York Human Rights Law (MOCHA I ). Among other things, the plaintiffs claimed that the 1998 examination used to select firefighters for promotion had an illegal disparate impact against African–American firefighters. MOCHA filed a second putative class action in 2003. This second suit alleged that the 2002 administration of the exam had the same discriminatory disparate impact as the 1998 exam (MOCHA II ). About two years after the MOCHA II commencement, the City's then Human Resources Commissioner, Leonard Matarese, decided to allow the promotion eligibility lists to expire between September 2005 and February 2006, before the four-year maximum duration had elapsed.

Thereafter, while MOCHA I and MOCHA II were still pending, this action was commenced. The 12 white firefighter plaintiffs on this appeal alleged that the City engaged in reverse, disparate treatment racial discrimination by permitting the promotion eligibility lists to expire before their maximum legal duration, thereby violating the Human Rights Law, the Civil Service Law, and the New York State Constitution.* Plaintiffs allege that had the lists been extended to their maximum duration of four years, in accordance with historical practice, they would have received promotions.

Prior to answering, the City moved to dismiss the complaint pursuant to CPLR 3211, raising, among other grounds, plaintiffs' undisputed failure to file a General Municipal Law § 50–i notice of claim. The City argued that the statutory provision required the plaintiffs, as a precondition to commencing suit, to provide prior notice of their claims in order to permit timely investigation and opportunity for early resolution. Plaintiffs cross-moved for partial summary judgment on liability. Supreme Court denied the City's motion to dismiss and granted plaintiffs' motion for summary judgment on liability. The litigation was then stayed pending resolution of the MOCHA I litigation.

The federal District Court then issued an order dismissing the title VII claims to the extent the MOCHA plaintiffs sought relief based on the City's 1998 administration of the exam (

24 N.Y.3d 729

M.O.C.H.A. Socy., Inc. v. City of Buffalo, 2009 WL 604898, 2009 U.S. Dist. LEXIS 20070 [W.D.N.Y. Mar. 9, 2009, No. 98–CV–99C] ). A year later, the District Court dismissed the MOCHA II litigation as well, finding that the MOCHA plaintiffs were collaterally estopped from challenging the 2002 administration of the exam because there was a “substantial identity of the dispositive issues and proof regarding the validity of the Lieutenant's Exams litigated in M.O.C.H.A. I and M.O.C.H.A. II (M.O.C.H.A. Socy., Inc. v. City of Buffalo, 2010 WL 1930654, *4, 2010 U.S. Dist. LEXIS 46628, *11 [W.D.N.Y. May 12, 2010, No. 03–CV–580–JTC] ).

In the present action, the Appellate Division, in June 2009, affirmed Supreme Court's denial of the City's motion to dismiss

28 N.E.3d 518
5 N.Y.S.3d 339

holding that dismissal was not warranted based on plaintiffs' failure to file a notice of claim under the General Municipal Law (63 A.D.3d 1574, 880 N.Y.S.2d 820 [2009] ). The Court further concluded that plaintiffs were not entitled to summary judgment because they had failed to establish as a matter of law that the City's actions were not narrowly tailored to meet a compelling interest.

Three weeks later, the United States Supreme Court issued its decision in Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). In ruling for the petitioners, the Court concluded that an employer could not act based on mere statistical disparity alone—“[w]ithout some other justification, ... race-based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race” (id. at 579, 129 S.Ct. 2658 ). The Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action” (id. at 585, 129 S.Ct. 2658 ).

At the direction of the Appellate Division, both sides renewed their arguments at the Supreme Court and cross-moved for summary judgment. Supreme Court granted plaintiffs' motion for summary judgment on the issue of liability. The court concluded that the City had failed to meet the strong basis in evidence standard set forth in Ricci.

The Appellate Division affirmed stating:

“We agree with the court that the City defendants did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire,
24 N.Y.3d 730
inasmuch as the examinations in question were job-related and consistent with business necessity” (Margerum v. City of Buffalo, 83 A.D.3d 1575, 1576, 921 N.Y.S.2d 457 [4th Dept.2011] ).

With liability established, the trial court proceeded with a bench trial on damages culminating in a judgment awarding plaintiffs $2,510,170 in economic damages and $255,000 in emotional distress damages. The Appellate Division reduced the economic damages, yielding a final judgment of $1,621,607 (108 A.D.3d 1021, 970 N.Y.S.2d 132 [2013] ). This Court granted leave to appeal to both plaintiffs and the City.

Preliminarily, we reject the City's argument for...

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