U.S. v. New York City Bd. of Educ.
| Decision Date | 28 May 2008 |
| Docket Number | No. 02-CV-0256 (FB)(RML).,No. 96-CV-0374 (FB)(RML).,96-CV-0374 (FB)(RML).,02-CV-0256 (FB)(RML). |
| Citation | 556 F.Supp.2d 202 |
| Parties | UNITED STATES of America, Plaintiff, v. NEW YORK CITY BOARD OF EDUCATION; City of New York; Lilliam Barrios-Paoli, Personnel Director, New York City Department of Personnel (in her official capacity); New York City Department of Personnel, Defendants, and John Brennan; James G. Ahearn; Dennis Mortenson and Scott Spring, Interyenors, and Janet Caldero, Celia I. Calderon, Martha Chellemi, Andrew Clement, Kristen D'Alessio, Laura Daniele, Charmaine Didonato, Dawn L. Ellis, Marcia P. Jarrett, Mary Kachadourian, Kathleen Luebkert, Adele A. McGreal, Marianne Maousakis, Sandra D. Morton, Maureen Quinn, Harry Santana, Carl D. Smith, Kim Tatum, Frank Valdez and Irene Wolkiewicz, Intervenors, and Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin Lafaye, Steven Lopez, Anibal Maldonado, James Martinez, Wilbert McGraw, Silvia Ortega De Green and Nicolas Pantelides, Intervenors. John Brennan; James Ahearn; Ernie Tricomi; Scott Spring; Dennis Mortensen; John Mitchell and Eric Schauer, Plaintiffs, v. John Ashcroft; Ralph Boyd; United States Department of Justice; New York City Board of Education; City of New York; New York City Department of Citywide Administrative Services and William J. Diamond, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Esther Tamburo-Lander, Esq., United States Department of Justice, Employment Litigation Section, Washington, DC, for Plaintiff.
Lawrence J. Prof eta, Esq., The City of New York Law Department, New York, NY, for Defendants.
Michael E. Rosman, Esq., Center for Individual Rights, Washington, DC, for Intervener Brennan, et al.
Matthew B. Calangelo, Esq., NAACP Legal Defense Fund & Educational Fund, Inc., New York, NY, for Intervenor Arroyo, et al.
Emily J. Martin, Esq., American Civil Liberties Union Women's Rights Project, New York, NY, for Intervenor Caldero, et al.
Familiarity with the Court's Memoranda and Orders of September 11, 2006 ("September 11th M & O"), United States v. New York City Bd. of Educ., 448 F.Supp.2d 397 (E.D.N.Y.2006), and April 20, 2007 ("April 20th M & O"), United States v. New York City Bd. of Educ, 487 F.Supp.2d 220 (E.D.N.Y.2007), is presumed. Although the prior M & Os addressed a wide array of the issues raised by this complex and highly contentious litigation, two issues remain to be decided before the Court can make its final determination as to validity of the Agreement between the Board and the United States in the face of the Brennan Intervenors' challenges under Title VII and the Fourteenth Amendment.
First, as explained in the April 20th M & 0, the Court must decide whether the Board and the United States intended to categorize black and Hispanic Offerees into "testing-claim beneficiaries" and "recruiting-claim beneficiaries" based upon whether they took and failed or effectively failed a challenged exam. See 487 F.Supp.2d at 233.1 This determination is necessary because the Court has held that there was sufficient evidence to warrant a race-conscious remedy only with respect to testing discrimination, thereby rejecting the Board's and the United States' assumption that the Agreement was an appropriate race-conscious remedy for both testing and recruiting discrimination. See id. Moreover, if the Court were to determine that the parties did not intend to distinguish between testing-claim beneficiaries and recruiting claim-beneficiaries, it would then need to reassess whether awarding retroactive seniority to blacks and Hispanics, regardless of whether they had taken and failed a challenged exam, would be a narrowly tailored remedy.
Second, the Court must determine which, if any, of the black and Hispanic Offerees who took a challenged exam were actual victims of testing discrimination who received "make-whole" relief. This determination is necessary because, while retroactive seniority for purposes of transfers and TCAs need not be limited to actual victims of discrimination to comport with Title VII and the Fourteenth Amendment, see Sept. 11th M & O, 448 F.Supp.2d at 431, 439-40, only actual victims of testing discrimination are entitled to retain their retroactive seniority for layoff-protection purposes, and only insofar as that remedy is necessary to undo the effects of such discrimination. Id. at 431-33, 440-41.2
The Court held an evidentiary hearing on the categorization issue on August 20, 2007, and subsequently invited submissions on all remaining issues. For the following reasons, the Court concludes that the parties to the Agreement intended to categorize black and Hispanic Offerees as either testing-claim beneficiaries or recruiting-claim beneficiaries. With respect to actual-victim status, the Court concludes that, of the nine testing-claim beneficiaries whose actual-victim status is in dispute, Ricardo Cordero and Vernon Marshall are actual victims of testing discrimination, but that there is insufficient evidence to refute the Brennan Interveners' challenges as to the remaining seven.
The evidence adduced at the August 20th hearing consisted of the testimony of Norma Cote ("Cote") and Katherine Baldwin ("Baldwin"); their testimony is summarized as follows:
1. Norma Cote
In October 1998, the United States initiated settlement talks and proposed a settlement under which blacks, Hispanics, Asians and women would receive permanent appointments and retroactive seniority. According to Cote, who represented the Board during settlement talks, "[t]he universe of prospective beneficiaries consisted entirely of minority and women provisional[hires]." Tr. at 14.3 The United States told the Board "that they had chosen this particular group of people because they were already working on the job [but] did not enjoy the benefits of permanent appointment," and that "they considered these people suited for becoming part of the means of redressing the imbalance in representation of minorities precisely because they didn't think the [Board] could have any objection to them based upon lack of ability to do the job since they were already doing it." Id. at 29. With some minor modifications (such as eliminating provisional hires who had since left their jobs), the Board accepted the proposal.
The Board compiled a list of approximately 54 individuals who met the agreed-upon criteria for relief (i.e., provisional hires who were members of one of the groups allegedly discriminated against). At the fairness hearing on the proposed settlement, a number of custodial employees argued that they met the criteria for benefits under the proposed agreement. The United States deferred to the Board as to whether these individuals should be added to the list of beneficiaries; the Board "accepted the genuineness and the good faith of about five ... of those individuals." Id. at 25.
Cote testified that "[t]he Federal Government never made any distinction between ... which legal theory applied to any individual beneficiary," id. at 14-15; that is, "the Federal Government never said to [the Board], or acted in such a way as to imply, that they had divided this universe into two groups: one whom they considered appropriate under the testing claim and one whom they considered appropriate under the recruiting claim." Id. at 15. At one point, Cote "asked the Federal Government lawyers whether they intended that minorities who had not taken one of the challenged exams would be included in the settlement," id. at 18; "their answer, without any further elaboration, was yes." Id. Cote was aware that "the only legal theory advanced for the woman and the Asians, regardless of whether they had taken a test or not, was the recruitment claim;" id. at 50; she testified, however, that blacks and Hispanics could "be thought of as falling under both claims." Id. at 54; see also id. ().
To the best of her recollection, Cote did not recall that the United States had "ever communicate[d] to [the Board] that it, the United States, intended the settlement agreement to provide make-whole relief calibrated to each offeree's individual injury." Id. at 31. In fact, Cote testified that she did not recall the United States "ever explain[ing] to [her] why they wanted these individuals to get retroactive seniority." Id. at 44.
Although Cote testified that neither the Board nor the United States had categorized beneficiaries according to the legal theory justifying relief, the Board did eventually determine which of the proposed beneficiaries had taken one of the challenged exams. The Board "needed to know that because retroactive seniority was calculated, in part, on whether a potential offeree had taken one of the challenged exams." Id, at 20. More specifically, retroactive seniority for those Who had taken an exam was calculated based on the earlier of the median hire date for the exam and provisional hire date; by contrast, "people who never took a test had their retroactive seniority date determined only by their provisional hire date." Id. at 55. This method of calculating retroactive seniority was distinct from the legal theory underlying the awards; for example, women who had taken an exam received retroactive seniority based on the median hire date for that exam, even though the only theory underlying relief to women was recruiting discrimination.
2. Katherine Baldwin
At the time the Agreement was negotiated and executed, Baldwin was a Section Chief of the Employment Litigation Section of the Department of Justice. As such, she reviewed the United States' complaint and approved it for filing. Although she was not directly involved in settlement negotiations with the Board, "[her] job was to ensure that any settlement agreement entered by the United States in the Title VII case [against the Board] met [...
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