U.S.A v. City Of N.Y.

• Citation: 713 F.Supp.2d 300
• Decision Date: 13 May 2010
• Docket Number: No. 07 Civ.2083(WHP).,07 Civ.2083(WHP).
• Parties: UNITED STATES of America, Plaintiff,v.CITY OF NEW YORK and New York City Department of Transportation, Defendants.
• Court: U.S. District Court — Southern District of New York

713 F.Supp.2d 300

UNITED STATES of America, Plaintiff,v.CITY OF NEW YORK and New York City Department of Transportation, Defendants.

No. 07 Civ.2083(WHP).

United States District Court S.D. New York.

May 13, 2010.

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Allison D. Penn, Li Yu, U.S. Attorney's Office, S.D.N.Y., New York, NY, for Plaintiff United States.

Christopher Aaron Seacord, New York City Law Department, New York, NY, for Defendants.

OPINION & ORDER

WILLIAM H. PAULEY III, District Judge:

Plaintiff United States of America (the “Government”) brings this Title VII pattern-or-practice action against the City of New York (the “City”) and the New York City Department of Transportation (the “DOT”). The Government alleges that the Defendants discriminate against women by hiring only men to work as City bridge painters. The evidence adduced at trial reveals a municipal division in America's largest city that refuses to hire women, in spite of societal norms, sound business practice, and city, state, and federal law. The Supreme Court's observation 37 years ago that “the sex characteristic frequently bears no relation to ability to perform or contribute to society” ¹ is only underscored by actions like this one. This Court makes the following findings of fact and conclusions of law as required under Fed.R.Civ.P. 52(a) and determines that the United States has established its pattern-or-practice disparate treatment claim.

FINDINGS OF FACT

I. New York City Bridge Painters

a Description & Duties

From 1996 to 2001, DOT employed approximately 40 in-house bridge painters to care for its elevated iron and steel bridges (the “Bridge Painters”). (Trial Transcript (“Tr.”) at 140, 180-82.) Bridge Painters work for the City's Division of Bridges in a unit known as the Bridge Painter Section. The Bridge Painter Section has a capital crew, which is responsible for working with private contractors to paint large structures, and an in-house crew, which maintains smaller elevated structures and cleans graffiti. (Tr. at 181, 188.)

In addition to painting smaller iron and steel structures, Bridge Painters chip, clean, and prepare iron and steel surfaces for painting. (Government (“Gov”) Ex. 10: Bridge Painter Job Vacancy Notice (“Vacancy Notice”)) Bridge Painters use hand tools on a daily basis and also work with power tools, such as wet blasters and needle guns, to remove old paint and graffiti. (Tr. at 186-87.) They construct their own rigging as well as containment structures to capture falling paint, often containing lead. (Tr. at 188-89.) Bridge Painters must know how to work within these containment structures and are expected to conduct road closures when work is being performed in areas of vehicle traffic. (Tr. at 188-89.)

Painting bridges is a seasonal occupation because structural steel can only be painted when the outside temperature is above 35 degrees-at colder temperatures the paint cracks. (Tr. at 28-29, 496.) While painters in the private sector generally work seven to nine months each year, depending on weather conditions, DOT Bridge Painters are employed year-round. (Tr. at 485, 543-45.) DOT Bridge Painters paint outdoor structures from March until November and then spend the winter months indoors at a Department of Environmental Protection (“DEP”) plant on Staten Island. (Tr. at 502.) In addition, DOT Bridge Painters receive more desirable compensation packages than their private-sector counterparts, including health insurance, annuities, vacation days, and sick days. (Tr. at 533, 583.)

Structural Steel and Bridge Painters of Greater New York, Local Union No. 806 (“Local 806”) is the collective bargaining agent for bridge painters employed by private contractors and the City. (Joint Stipulation of Facts attached as Schedule B to the Joint Pretrial Order (“Stipulated Fact”) No. 1.) Local 806 runs an apprenticeship program for novice painters that allows apprentices to learn to mix paint, tie knots and use the tools of the bridge painting industry, move scaffolding, construct and work in containment structures, and use the protective suits, respirators, and other safety equipment. (Tr. at 16-17, 90-91.)

b. Bridge Painter Hiring Procedures & Requirements

The DOT Bridge Painter position is a civil service title subject to competitive examination and City hiring regulations. (Tr. at 175.) In 1992, the City's Department of Personnel issued a notice of examination for the Bridge Painter position under Examination No. 1133, which had a closing date of January 22, 1992. (Stipulated Fact No. 2.) The last appointment from the civil service list of eligible candidates established under Examination No. 1133 occurred in 1994. (Stipulated Fact No. 3.) In 1996, the Department of Personnel merged with the City's Department of General Services to form the Department of Citywide Administrative Services (the “DCAS”). (Stipulated Fact No. 34.) Between 1996 and 2003, the DOT made five separate requests of DCAS to schedule a civil service exam to hire Bridge Painters, (Stipulated Fact No. 35.) However, the DCAS did not announce a Bridge Painter exam until 2004. (Stipulated Fact No. 36.)

i. The Vacancy Notices

In the interim, hiring was conducted on a provisional basis. (Tr. at 175.) DOT issued vacancy notices when Bridge Painter positions became available. (Tr. at 175.) During the relevant period, DOT issued four sets of notices-in October 1997 and February 1998 (the “1997-1998 Postings”), in July 1999 (the “1999 Posting”), in April and May 2001 (the “2001 Postings”) and in June 2002 (the “2002 Posting”). (Stipulated Facts Nos. 5, 13, 21, 42.) Since the start of provisional hiring, DOT has hired thirteen men as Bridge Painters. (Stipulated Facts Nos. 10, 16, 18.) DOT has not appointed a woman to that job title. (Stipulated Fact No. 33.)

The vacancy notices for the Bridge Painter position listed “Qualification Requirements” as “[f]ive years of full-time satisfactory experience acquired within the last ten years in painting bridges, towers, tanks, and other elevated steel structures, using rigging and scaffolding” (the “Five-Year Experience Requirement”). (Vacancy Notice.) Additionally, the vacancy notices listed “License Requirements” as “[p]ossession of a Class B Commercial Driver License valid in the State of New York” (the “Class B License Requirement”). (Vacancy Notice). However, in practice, applicants were required to obtain a Class B commercial driver license (“CDL”) only at the start of their employment with DOT, and the majority of candidates for the position in 1998 did not have a CDL at the time they applied or were interviewed. (Tr. at 145-46.) Further, as of January 1999, DOT policy no longer required that an applicant “possess” a CDL; rather, the policy required the applicant acquire the license within 12 months of being hired. (Tr. at 284-289; Defendant's (“Def.”) Ex. HH: NYCDOT Memorandum re: Bridge Painter License Requirements dated Jan. 13, 1999.)

The first vacancy notice issued in October 1997 limited the applicant pool to current DOT employees. (Tr. at 143-44; Vacancy Notice.) In the February 1998 vacancy notice, DOT expanded the applicant pool to all current City employees. (Tr. at 144.) Because DOT had trouble filling available positions from this expanded pool, the Bridge Painter Section also considered non-City employees who applied in response to the vacancy notices. (Tr. at 146-47, 721.) Michael Tohl (“Tohl”), who served as Acting Director of Bridge Painting from late 1996 to December 1998, was unaware of any limitations on the hiring of provisional employees. (Tr. at 139-40, 175-76.) Moreover, the Bridge Painter Section employed no “formal mechanism” to notify the public about job vacancies. (Tr. at 721-22.) As a result, the Bridge Painter Section primarily resorted to “word-of-mouth” recruiting by Bridge Painters who informed Local 806 members of new openings. (Tr. at 147-48, 565, 721.) Tohl “rel[ied] on this fraternity” of existing bridge painters and acknowledged that Local 806 members were “an easy way to reach out.” (Tr. at 148.) Word-of-mouth recruiting was especially effective in apprising potential applicants of DOT's unpublished modifications to the Class B License Requirement and expansion of the hiring pool to non-City employees. (Tr. at 285-86, 291-92.)

ii. Applicant Screening & Interview Process

Applications and resumes received in response to the vacancy notices were initially screened at DOT. (Tr. at 147-49.) Unqualified applications were endorsed “NQ,” and those applicants were never interviewed. (Tr. at 380-81.) Qualified applicants were contacted for an interview by DOT employee Earlene Powell (“Powell”), a clerical assistant in 1998 who was promoted to Deputy Director of Bridge Painting in late 1999. (Tr. at 371, 396-400, 411; Stipulated Fact. No. 20.)

Interviews were conducted in connection with the 1997-1998, the 1999, and the 2001 Postings. However, no interviews were conducted following the 2002 Posting. (Stipulated Facts Nos. 7, 15, 23, 44.) For the 1997-1998 Postings, the interview panel consisted of Acting Director of Bridge Painting Tohl and two supervising Bridge Painters Vincent Babajko (“Babajko”) and Ed Obara (“Obara”). (Stipulated Fact No. 12.) A liaison to DOT's Equal Employment Opportunity (“EEO”) office was also present at each interview. (Stipulated Fact. No. 12.) For both the 1999 and 2001 Postings, the interview panel consisted of Leonid Levit (“Levit”), the new Director of Bridge Painting as of December 1998, various Bridge Painting Supervisors, and an EEO representative. (Stipulated Facts Nos. 15, 19, 23; Tr. 294,420.) While not a panel member, Powell was also present at the interviews for the 1999 and 2001 Postings. (Stipulated Facts Nos. 15, 23.)

II. Female Applicants for the Provisional Bridge Painter Position

This Court permitted Local 806 and individual Plaintiffs Joann Rush (“Rush”), Helen...