United States v. City of N.Y.

• Decision Date: 08 March 2012
• Docket Number: No. 07–CV–2067 (NGG)(RLM).,07–CV–2067 (NGG)(RLM).
• Citation: 847 F.Supp.2d 395
• Parties: UNITED STATES of America, Plaintiff, and 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, and The Uniformed Firefighters Association of Greater New York, A Non–Aligned Party.
• Court: U.S. District Court — Eastern District of New York

847 F.Supp.2d 395

UNITED STATES of America, Plaintiff,

and

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,andThe Uniformed Firefighters Association of Greater New York, A Non–Aligned Party.

No. 07–CV–2067 (NGG)(RLM).

United States District Court,

E.D. New York.

March 8, 2012.

Elliot M. Schachner, David Michael Eskew, United States Attorneys Office, Brooklyn, NY, Eric Bachman, Sharon Seeley, Allan K. Townsend, Barbara A. Schwabauer, Jennifer Swedish, 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., Shayana Devendra Kadidal, Beth A. Kaswan, Judith S. Scolnick, Scott

+ Scott, LLP, Darius Charney, Ghita Schwarz, New York, NY, for Plaintiff–Intervenors.

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

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

In this Opinion, the court considers Plaintiffs' Motions for Summary Judgment for backpay damages and several other issues relating to the individual claims process. Upon due consideration, the court denies Plaintiffs' Motions but does find there is no genuine issue as to the amount of aggregate pre-mitigation wage backpay owed through 2010. The court grants the City leave to amend its Answer to raise the defense of failure to mitigate. The court grants the parties' joint request for a definition of Non–Hire Claimant and Delayed–Hire Claimant, and the use of six additional criteria agreed upon by the parties. The court denies the City's request for the use of criteria beyond those agreed to by all parties. The court selects four special masters and directs them to file affidavits pursuant to Federal Rule of Civil Procedure 53(b)(3)(A–B). The court denies the City's motion to delay the individual determinations of monetary relief during the pendency of the City's appeal of the court's Remedial Order. Finally, the court orders the parties to appear for a litigation management conference on March 22, 2012, at 1:00 p.m.

I. PROCEDURAL HISTORY

The factual and procedural background of this case is complex, and will not be recounted here in full. Only the events that are relevant to the issues before the court today will be summarized.¹

In 2007, the United States brought suit against the City of New York (the “City”), alleging that certain aspects of the City's policies for selecting entry-level firefighters for the New York City Fire Department (“FDNY”) violated Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). (July 22, 2009 Mem. & Order (Docket Entry # 294) (the “D.I. Op.”) at 2.) The United States alleged that the City's use of two exams—Written Exams 7029 and 2043—as pass-fail screening and rank-ordering devices had a disparate impact on black and Hispanic candidates for entry-level firefighter. ( Id. at 3.) The Vulcan Society and several individuals intervened in the lawsuit as plaintiffs, alleging similar claims of disparate impact and also alleging disparate treatment (raising both theories of liability under federal, state, and local law) on behalf of a class of black entry-level firefighter candidates. ( See Sept. 5, 2007 Mem. & Order, 2007 WL 2581911 (Docket Entry # 47) at 20 (granting motion to intervene); May 11, 2009 Mem. & Order, 258 F.R.D. 47 (E.D.N.Y.2009) (Docket Entry # 281) at 33–34 (certifying a class for the liability stage of the case).)

In July 2009, the court considered the United States' and Plaintiff–Intervenors' Motions for Summary Judgment on disparate impact liability. (D.I. Op. at 93.) In its opinion, the court recounted the City's basic process for selecting entry-level firefighters. Applicants applied to sit for a written, multiple choice exam; the City administered Exam 7029 from 1999 until 2002 and Exam 2043 from 2002 until 2007. ( Id. at 10.) Each exam had a pass-fail cutoff; applicants who scored at or above that cutoff were allowed to take a physical performance test (the “PPT”), while those who failed were not allowed to take the PPT or progress any further in the hiring process. ( Id.) Candidates who also passed the PPT were placed on a rank-order hiring eligibility list. ( Id. at 11.) Applicants' list rank was determined by a final score that was produced through a process of combining applicants' written exam and PPT scores (along with additional points for New York City Residents, legacy candidates, and veterans). ( Id.) When the FDNY intended to hire entry-level firefighters for a new class, the City would certify a portion of the eligibility list (by rank order) for further processing such as background checks and medical and psychological examinations; a person who passed through all of the further processing was appointed. ( Id. at 11–12.) The City used the eligibility list from Exam 7029 to hire firefighter classes from 2001 through 2004, and the list from Exam 2043 from 2004 through 2008. ( Id. at 12.)

After recounting the basic FDNY firefighter hiring process, the court considered the evidence of a prima facie case of disparate impact. Plaintiffs challenged two practices for each of the two exams: the pass-fail cutoff score and the rank-ordering of candidates based on their scores. ( Id. at 24.) The statistical evidence Plaintiffs offered (largely though not exclusively through the work of the United States' expert, Bernard R. Siskin, Ph.D.) was telling.

As to the pass-fail usage of the exams, blacks passed Exam 7029 at 67% of the pass rate of whites; the disparity was equivalent to 33.9 units of standard deviation, meaning the likelihood of the disparity occurring by chance was “infinitesimally small.” ² (Siskin Liability Report (Docket Entry # 254 Ex. A) at 3, 21, & Table 1.) Hispanics passed Exam 7029 at 85.3% of the pass rate of whites; the disparity was equivalent to 17.4 units of standard deviation, meaning the likelihood of the disparity occurring by chance was infinitesimally small. ( Id. at 3, 23, & Table 2.) Blacks passed Exam 2043 at 87.7% of the pass rate of whites; the disparity was equivalent to 21.8 units of standard deviation, meaning the likelihood of the disparity occurring by chance was infinitesimally small. ( Id. at 5, 26, & Table 5.) Hispanics passed Exam 2043 at 95.5% of the pass rate of whites; the disparity was equivalent to 10.5 units of standard deviation, meaning the likelihood of the disparity occurring by chance was infinitesimally small. ( Id. at 5–6, 27–28, & Table 6.)

As to the use of the exams as rank-ordering devices, blacks were disproportionately ranked disadvantageously on the Exam 7029 list; for example, while 33% of white candidates had eligibility list numbers at or above 2000, only 21% of black candidates did, and while 20% of white candidates had list numbers at or below 5001, 30% of black candidates did. (United States Rule Disparate Impact Motion 56.1 Statement (Docket Entry # 252) ¶¶ 118–19.) The disparity in ranking is equivalent to 6.48 units of standard deviation, meaning the likelihood of the disparity occurring by chance was less than 1 in 11 billion. (Siskin Liability Report at 4 & 24.) Similarly, the eligibility list created from the Exam 7029 results disproportionately ranked Hispanic candidates disadvantageously. While 33% of white candidates had eligibility list numbers at or above 2000, only 28% of Hispanic candidates did, and while 20% of white candidates had list numbers at or below 5001, 29% of Hispanic candidates did. (United States Rule 56.1 Statement ¶¶ 128–29.) The disparity in ranking was equivalent to 4.57 units of standard deviation, meaning the likelihood of the disparity occurring by chance was less than 1 in 204,000. (Siskin Liability Report at 4 & 25.) Blacks were disproportionately ranked disadvantageously on the Exam 2043 eligibility list. While 28% of white candidates had eligibility list numbers at or above 2000, only 18% of black candidates did, and while 30% of white candidates had list numbers at or below 5001, 50% of black candidates did. ( Id.¶¶ 137–39.) The disparity in ranking was equivalent to 9.5 units of standard deviation, meaning the likelihood of the disparity occurring by chance was calculated to be less than 1 in 4.5 million-billion. (Siskin Liability Report at 7 & 32.) Hispanics were disproportionately ranked disadvantageously on the Exam 2043 eligibility list. While 28% of white candidates had eligibility list numbers at or above 2000, only 25% of Hispanic candidates did, and while 30% of white candidates had list numbers at or below 5001, 39% of Hispanic candidates did. (United States Rule 56.1 Statement ¶¶ 150–51.) The disparity in ranking was equivalent to 4.6 units of standard deviation, meaning the likelihood of the disparity occurring by chance was less than 1 in 186,225. (Siskin Liability Report at 8 & 34.)

Plaintiffs put forward evidence about the practical significance of the statistical disparities documented above. As to the pass-fail use of the exams, the disparity in the rate at which black candidates passed Exam 7029 accounted for 74.7% of failing black candidates—eliminating 519 candidates from contention (these candidates are called “shortfall candidates”). From those 519, approximately 114 additional black entry-level...