United States v. Vulcan Soc., Inc.

• Decision Date: 18 September 2012
• Docket Number: No. 07–CV–2067 (NGG) (RLM).,07–CV–2067 (NGG) (RLM).
• Citation: 897 F.Supp.2d 30
• Parties: UNITED STATES of America, Plaintiff, v. The VULCAN SOCIETY, INC., for itself and on behalf of its members, Jamel Nicholson, and Rusebell Wilson, individually and on behalf of a subclass of all other victims similarly situated seeking classwide injunctive relief; Roger Gregg, Marcus Haywood, and Kevin Walker, individually and on behalf of a subclass of all other non-hire victims similarly situated; and Candido Nuñez and Kevin Simpkins, individually and on behalf of a subclass of all other delayed-hire victims similarly situated, Plaintiff–Intervenors, v. The City of New York, Defendant.
• Court: U.S. District Court — Eastern District of New York

897 F.Supp.2d 30

UNITED STATES of America, Plaintiff,

v.The VULCAN SOCIETY, INC., for itself and on behalf of its members, Jamel Nicholson, and Rusebell Wilson, individually and on behalf of a subclass of all other victims similarly situated seeking classwide injunctive relief; Roger Gregg, Marcus Haywood, and Kevin Walker, individually and on behalf of a subclass of all other non-hire victims similarly situated; and Candido Nuñez and Kevin Simpkins, individually and on behalf of a subclass of all other delayed-hire victims similarly situated, Plaintiff–Intervenors,

v.The City of New York, Defendant.

No. 07–CV–2067 (NGG) (RLM).

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

Sept. 18, 2012.

Elliot M. Schachner, Michael J. Goldberger, David Michael Eskew, United States Attorneys Office, Brooklyn, NY, Eric Bachman, Sharon Seeley, Allan K. Townsend, Barbara A. Schwabauer, Jennifer Swedish, Kathryn Ladewski, Meredith L. Burrell, Varda Hussain, U.S. Department of Justice, Washington, DC, for Plaintiff.

Richard A. Levy, Allyson L. Belovin, Dana E. Lossia, Robert H. Stroup, Levy Ratner P.C., Beth A. Kaswan, Judith S. Scolnick, Scott & Scott, LLP, Leon Friedman, Offices of Leon Friedman, Shayana Devendra Kadidal, Darius Charney, Ghita Schwarz, New York, NY, for Plaintiff–Intervenors.

Georgia Mary Pestana, William S.J. Fraenkel, James Lemonedes, Kathleen Marie Comfrey, Patricia B. Miller, Office of the Corporation Counsel, Edward Lee Sample, II, Kami Zumbach Barker, Vivien V. Ranada, New York City Law Department, New York, NY, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

Today the court discusses how compensatory damages for noneconomic harm are to be awarded to black victims of the City of New York's discriminatory entry-level firefighter exams. Although the court held a bench trial in August 2011 to determine the noneconomic benefits of the job of New York City firefighter, it now concludes that those benefits are not relevant to the compensatory damages owed to claimants, and thus declines to make findings of fact based on the bench trial. Instead, a claimant may be granted compensatory damages only if he or she makes an entirely individualized showing of one or more of certain limited categories of damages that have been recognized and defined in the common law of tort, which the court describes below. The court also denies the City's request that it revisit its certification of the non-hire victim and delayed-hire victim subclasses.

I. BACKGROUND

The court assumes the reader's familiarity with the background of this case, and will review only certain portions of the procedural history here.

On January 13, 2010, this court held the City liable for engaging in a pattern or practice of intentional discrimination against black applicants for the job of firefighter, in violation of Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); 42 U.S.C. § 1981; the Equal Protection Clause of the Fourteenth Amendment; New York Executive Law § 296(1)(1) (“NYSHRL”); and New York City Administrative Code § 8–107(1)(a) (“NYCHRL”). (Disparate Treatment Liability Op. (Docket Entry # 385).) The parties then entered into the remedial phase of this litigation.

The court had previously certified, for the liability phase only, a mandatory class of black firefighter applicants who had allegedly been harmed by the City's hiring practices. (Docket Entry # 281.) After the court held the City liable, Plaintiff–Intervenors sought certification of a class of black victims for the purposes of awarding them compensatory damages for noneconomic harm. (Docket Entry # 401.) They also filed a motion for summary judgment as to the aggregate amount of those damages. (Docket Entry # 577.)

On June 6, 2011, the court certified a single subclass of black victims (the “noneconomic loss subclass”), pursuant to Federal Rule of Civil Procedure 23(b)(3), with respect to two issues common to their claims for compensatory damages for noneconomic harm. ( See First Remedial Cert. Order (Docket Entry # 640) at 33.) The court noted that it would address in a separate opinion Plaintiff–Intervenors' motion for summary judgment, and that, to the extent that there were any disputed genuine issues of material fact regarding compensatory damages, the court would hold a bench trial on those issues in August 2011. ( Id. at 31 n. 16, 48.)

Soon after that decision, the Supreme Court decided Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). On July 8, 2011, the court issued an opinion addressing the effect of Wal–Mart on its class certification decision. (Second Remedial Cert. Order (Docket Entry # 665).) Although the court denied the City's motion to decertify the liability-phase class, it granted the City's motion to decertify the noneconomic loss subclass in light of Wal–Mart. ( Id. at 19, 21, 58.) The court found that “the fact and extent of claimants' noneconomic losses,” unlike the calculation of backpay, were “not susceptible to classwide proof” ( id. at 34); rather, these issues required individualized assessments of “how significant the intangible benefits of the job [of firefighter] were to [a] particular claimant,” and “whether the claimant obtained other intangible benefits from interim employment that tend[ed] to diminish the magnitude of the intangible benefits lost because of discrimination” ( id. at 26, 28). As a consequence of this finding, the court denied Plaintiff–Intervenors' motion for summary judgment as to the aggregate amount of classwide compensatory damages. ( Id. at 35.) However, the court certified two subclasses of non-hire victims and delayed-hire victims as to certain common remedial phase issues under Rule 23(b)(3). ( Id. at 58.) It found that a number of remedial issues could be resolved on a classwide basis, including aggregate backpay, retroactive seniority, priority hiring relief, and, with respect to compensatory damages for noneconomic losses, the characteristics of a New York City firefighter's job that may have resulted in intangible benefits to particular claimants. ( Id. at 43–44.) The court concluded that these common questions predominated over individualized questions, and that a class action was superior to other methods for fairly and efficiently adjudicating Plaintiff–Intervenors' claims. ( Id. at 42–51.) The court further noted that, “[a]fter class proceedings resolve[d] common questions of fact relating to the characteristics of a firefighter's job, the individual claims process would be concerned primarily with establishing those facts unique to each individual claimant's claims for loss of enjoyment of life.” ( Id. at 46.)

In August 2011, the court held a bench trial to determine the noneconomic benefits of the job of New York City firefighter. On June 29, 2012, the parties submitted Proposed Findings of Fact and Conclusions of Law (“FOF”) based on the bench trial regarding the compensatory damages owed to claimants for their noneconomic harm. (City FOF (Docket Entry # 910); Int. FOF (Docket Entry # 911).) Plaintiff–Intervenors asserted that the noneconomic benefits of the job of firefighter include: (1) flexibility and control over work schedules, which permit firefighters significant time for other activities like spending time with their families, holding second jobs, and pursuing further education (Int. FOF ¶¶ 2–12); (2) economic security ( id. ¶¶ 13–22); (3) respect from the community and a sense of pride ( id. ¶¶ 23–27); (4) pleasure in the job itself and a sense of fulfillment in overcoming challenges to help others ( id. ¶¶ 28–31); (5) valued camaraderie in the firehouse community ( id. ¶¶ 32–34); and (6) overall job satisfaction ( id. ¶¶ 46–48). Plaintiff–Intervenors requested that the court direct the Special Masters assigned to hold hearings for individual claimants to compare the particular attributes of the firefighter job with the positive and negative aspects of the positions held by particular claimants to determine the value of the qualitative differences (if any) between the actual life experiences of victims and the benefits they would have obtained from the firefighter position. ( Id. at 17.) The City's FOF discussed, among other things, the risks, unpredictability, and emotional toll inherent in the firefighter job (City FOF ¶¶ 15–79), and argued that claimants are not entitled to compensatory damages unless they can “establish that one or more of their senses were impaired or that they c[ould] no longer engage in particular activities as a result of” the City's discrimination ( id. ¶ 85), or “that the lost opportunity to become a NYC firefighter caused emotional distress for [them] personally” ( id. ¶ 86).

On July 25, 2012, the court issued an Order stating that the parties' FOF “d [id] not sufficiently address whether the court has the authority under federal and New York law to award the forms of compensatory damages discussed by Plaintiff–Intervenors,” and directed the parties to submit supplemental briefing on these issues. (Supp. Briefing Order (Docket Entry # 932) at 1–2.) Plaintiff–Intervenors submitted their supplemental brief on August 8, 2012, arguing that claimants are entitled to “plenary” compensatory damages “for any and all proven adverse consequence of racial discrimination.” (Int. Supp. Mem. (Docket Entry # 938) at 2–3.) The City filed a response on August 22, 2012, arguing that Plaintiff–Intervenors should be entitled to seek only damages for loss of enjoyment life and for pain and suffering, and that these categories of damages are strictly circumscribed. ( See City Supp. Mem. (Docket Entry # 954) at 1, 13.) The City further argued that the court should revisit its Rule 23(b)(3) certification of the non-hire and delayed-hire subclasses “in light of Plaintiff–Intervenors' current effort to recover plenary compensatory damages.” ( Id. at 12.)

II. COMPENSATORY DAMAGES FOR...