U.S. v. New York City Bd. of Educ.

• Decision Date: 09 February 2000
• Docket Number: No. 96-CV-374 RML.,96-CV-374 RML.
• Citation: 85 F.Supp.2d 130
• Parties: UNITED STATES of America, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION; City of New York, William J. Diamond, Commissioner, New York City Department of Citywide Administrative Services (in his official capacity); and New York City Department of Citywide Administrative Services, Defendants.
• Court: U.S. District Court — Eastern District of New York

85 F.Supp.2d 130

UNITED STATES of America, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION; City of New York, William J. Diamond, Commissioner, New York City Department of Citywide Administrative Services (in his official capacity); and New York City Department of Citywide Administrative Services, Defendants.

No. 96-CV-374 RML.

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

February 9, 2000.

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Bill Lann Lee, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C., by Katherine A. Baldwin, Aaron D. Schuham, Marybeth Martin, Tana Lin, Luis A. Lavin, Meredith Burrell, for Plaintiff.

Michael D. Hess, Corporation Counsel of the City of New York, New York, NY, orma A. Cote, Drake A. Colley, for Defendants.

McCarter & Higgins, Shrewsbury, N.J., by George W.C. McCarter, for Proposed Intervenors.

Center for Individual Rights, Washington, D.C., by Michael E. Rosman, for Proposed Intervenors.

MEMORANDUM AND ORDER (Amended)

LEVY, United States Magistrate Judge.

Presently before the court is the joint motion of the United States (the "plaintiff") and the New York City Board of Education, the City of New York, Commissioner William J. Diamond, and the New York City Department of Citywide Administrative Services (collectively, the "defendants") for approval of a proposed Settlement Agreement (the "Agreement"). At issue in this case is the number of blacks, Hispanics, Asians, and women hired for the positions of School Custodian ("Custodian") and School Custodian Engineer ("Custodian Engineer") in New York City schools. The Agreement reflects a settlement of all of plaintiff's claims against the defendants based on alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. For the reasons stated below, the motion for approval of the Agreement is granted.

Background and Procedural History

The United States filed this action on January 30, 1996, alleging that defendants (1) failed and/or refused to recruit blacks, Hispanics, Asians, and women on the same basis as white, non-Hispanic men for the positions of Custodian and Custodian Engineer; (2) failed and/or refused to hire and promote blacks and Hispanics on the same basis as whites for the positions of Custodian and Custodian Engineer; and (3) used entry-level and promotional written examinations for the positions of Custodian and Custodian Engineer that disproportionately excluded blacks and Hispanics from employment and have not been shown to meet the requirements of federal law. The United States has since pursued two claims in this litigation: (1) a disparate impact claim on behalf of blacks and Hispanics which challenged defendants' administration and use of written, competitive civil service examinations Nos. 5040 (given in 1985), 8206/8209 (given in 1989), and 1074 (given in 1993) for the positions of Custodian and Custodian Engineer (the "testing claim"); and (2) a disparate impact claim on behalf of blacks, Hispanics, women, and Asians, which challenged defendants' recruitment practices for the positions of Custodian and Custodian Engineer (the "recruitment claim").

Fact discovery and expert discovery regarding the testing claim closed on October 3, 1997 and July 10, 1998, respectively.¹ Discovery concerning the recruitment claim commenced on June 22, 1998 and was in progress, with new fact and expert discovery deadlines awaiting the court's determination, when the parties informed the court of this settlement. The parties then voluntarily suspended further discovery while final settlement negotiations took place. The executed Settlement Agreement was filed with the court on February 11, 1999.

Pursuant to 42 U.S.C. § 2000e-2(n), the parties provided notice to those persons whose interests may be affected by the Agreement. According to the terms of the Agreement, defendants provided notice of the Agreement and the method for submitting objections to the following by first-class mail to their last known home address: (1) all Custodians and Custodian Engineers²; (2) Local 891 of the International Union of Operating Engineers ("Local 891"), the union that represents both provisional and permanent Custodians and Custodian Engineers; (3) individuals who remain on the eligible list for Custodian Examination No. 1074; and (4) all individuals who took Custodian Engineer (BOE) Examination No. 7004 on December 20, 1997. In sum, defendants provided actual notice of the Agreement to approximately 2,535 individuals. Defendants also posted notices regarding the Agreement at the Board of Education, the Department of Citywide Administrative Services, and all New York City public schools. In addition, defendants arranged for published notices regarding the Agreement, twice during two consecutive weeks, to appear in The New York Times, The New York Post, The Daily News, The Chief, The Amsterdam News, The Chinese World Journal, Korea Times, India Abroad, and El Diario.

Furthermore, on March 3, 1999, representatives of the parties met with the officers of Local 891 to explain the terms of the Agreement and to answer the officers' questions regarding the settlement. Thereafter, plaintiff provided Local 891 with approximately 600 copies of the Agreement for distribution to the union's membership. Finally, counsel for plaintiff attended a meeting of the Local 891 membership on April 8, 1999, at which counsel explained the terms of the Agreement, answered questions, and heard comments from the union membership.

Objections were due on April 27, 1999, and the United States received a total of 321 individual objections.³ In addition to filing timely objections, three current permanent employees — John Brennan, James G. Ahearn, and Kurt Brunkhorst — have moved to intervene in this action pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. Notably, Local 891 has not objected to the Agreement.

By order dated March 4, 1999, in response to a joint motion to schedule a fairness hearing to consider objections to the Agreement, the Honorable Frederic Block, United States District Judge, referred this matter to me to conduct a fairness hearing. I conducted the hearing on May 27, 1999, pursuant to Section 108 of the Civil Rights Act of 1991.⁴ At the fairness hearing, the court heard testimony and arguments against approval from numerous objectors, some appearing pro se and some represented by counsel, and arguments in support of the Agreement from both the United States and defendants. Subsequently, by Stipulation dated June 2, 1999, the parties consented to have this case referred to a Magistrate Judge for all purposes. See 28 U.S.C. § 636(c).

Central Terms of the Settlement Agreement

The Agreement resolves both the testing and recruitment claims, as well as all issues that were or could have been raised by the United States in its complaint. It comes after three years of highly contentious discovery, entailing the retention of numerous experts by both sides, the production of thousands of pages of documents, the taking of approximately thirty depositions, many applications to the court regarding discovery disputes, and over three months of arms-length settlement negotiations.⁵ The Agreement's central provisions are as follows:

• Defendants cannot discriminate on the basis of race, national origin or gender in the recruitment or the selection of any employee, applicant or prospective applicant for employment, for the positions of Custodian and Custodian Engineer with the New York City Board of Education. (Agreement ¶ 7.)

• Defendants must implement a comprehensive recruitment program designed to increase the number of qualified black, Hispanic, Asian and female applicants for employment as Custodians and Custodian Engineers with the New York City Board of Education. This recruiting program includes: the placement of prominent job advertisements in The Daily News, The New York Times, The New York Post, The Amsterdam News, The Chinese World Journal, Korea Times, India Abroad and El Diario; placement of job advertisements on radio stations whose audiences reflect a significant black, Hispanic, or Asian listenership; and the distribution of future examination notices to over 100 community organizations. (Agreement ¶¶ 18-24.)

• Defendants cannot use the four written examinations challenged in the lawsuit again, or any written examination derived substantially from the four examinations. (Agreement ¶ 25.)

• Defendants may hire off of the eligible list for Exam No. 1074 provided 31 vacancies are reserved for Custodians to be converted to permanent status. (Agreement ¶ 27.)

• Defendants cannot establish an eligible list from Exam No. 7004 (administered in December 1997) until they consult with the United States' designated expert on ways to reduce the examination's adverse impact and provided that 12 positions are reserved for Custodian Engineers to be converted to permanent status. (Agreement ¶ 27.)

• If defendants develop new written examinations during the life of the Agreement, they must consult with the United States' designated expert. In addition, any new written examinations must comply with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. (1998) ("Uniform Guidelines"). (Agreement ¶ 28.)

• Defendants must provide permanent, civil service status to 43 identified blacks, Hispanics, Asians, and women who have been serving provisionally as Custodians and Custodian Engineers. In addition to converting 43 temporary or "provisional" employees to permanent employees, defendants must provide retroactive seniority, including retroactive pension relief, to 54 identified black, Hispanic, Asian, and female incumbent Custodians and Custodian Engineers (including the 43 provisional employees). These individuals will receive retroactive seniority dates ranging from January 23, 1989 through February 28, 1996. (Agreement ¶¶...