US v. City of New York

• Decision Date: 13 January 2010
• Docket Number: No. 07-CV-2067 (NGG)(RLM).,07-CV-2067 (NGG)(RLM).
• Citation: 683 F. Supp.2d 225
• Parties: UNITED STATES of America, Plaintiff, and The Vulcan Society, Inc., Marcus Haywood, Candido NuÑez, Roger Gregg, Plaintiff-Intervenors, v. The CITY OF NEW YORK, Fire Department of the City of New York, New York City Department of Citywide Administrative Services, and Mayor Michael Bloomberg and New York City Fire Commissioner Nicholas Scoppetta, in their individual and official capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

683 F.Supp.2d 225

UNITED STATES of America, Plaintiff, and The Vulcan Society, Inc., Marcus Haywood, Candido NuÑez, Roger Gregg, Plaintiff-Intervenors, v. The CITY OF NEW YORK, Fire Department of the City of New York, New York City Department of Citywide Administrative Services, and Mayor Michael Bloomberg and New York City Fire Commissioner Nicholas Scoppetta, in their individual and official capacities, Defendants.

No. 07-CV-2067 (NGG)(RLM).

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

January 13, 2010.

Elliot M. Schachner, Michael J. Goldberger, David Michael Eskew, Varda Hussain, United States Attorneys Office, Brooklyn, NY, Carolyn P. Weiss, Clare F. Geller, Department of Justice, Sharon Seeley, David Nathan Reese, Washington, DC, for Plaintiff.

Richard A. Levy, Allyson L. Belovin, Dana E. Lossia, Levy Ratner P.C., Beth A. Kaswan, Judith S. Scolnick, Scott and Scott, LLP, Shayana Devendra Kadidal, Anjana Samant, Darius Charney, New York, NY, for Plaintiff-Intervenors.

Georgia Mary Pestana, Office of the Corporation Counsel, William S.J. Fraenkel, Corporation Counsel of the City of NY, Edward Lee Sample, II, Vivien V. Ranada, New York City Law Department, Kami Zumbach Barker, Office of Michael A. Cardozo, New York, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

For over 200 years, the New York City Fire Department has served the people of New York with uncommon bravery, skill, and determination. New York's status as one of the world's great cities is owed in no small part to the commitment and unflagging effort of its firefighters, who provide the city with a degree of security that is rarely acknowledged only because it is so rarely called into question. On September 11, 2001, the world witnessed the magnitude of that commitment, and nobody who was in the city on that day or in the years after will forget the heroism that was displayed by firefighters as the tragedy unfolded, or the role that the Fire Department played in rallying and sustaining the city during the aftermath.

Nonetheless, there has been one persistent stain on the Fire Department's record. For decades, black and other minority firefighters have been severely underrepresented in the Department's ranks. According to the most recent census data, black residents make up 25.6% of New York City's population; when this case was filed in 2007, black firefighters accounted for only 3.4% of the Department's force. In other words, in a city of over eight million people, and out of a force with 8,998 firefighters, there were only 303 black firefighters. This pattern of underrepresentation has remained essentially unchanged since at least the 1960s. While the city's other uniformed services have made rapid progress integrating black members into their ranks, the Fire Department has stagnated and at times retrogressed. When it comes to being a New York firefighter, blacks and other minorities face entry barriers that other applicants do not.

In July 2009, this court found that the written examinations that the Fire Department used to screen and rank applicants between 1999 and 2007 had discriminatory effects on certain minority applicants, including black applicants, and failed to test for relevant job skills. These examinations unfairly excluded hundreds of qualified black applicants from the opportunity to serve as New York City firefighters. Today, the court holds that New York City's use of these examinations constitutes a pattern and practice of intentional discrimination against blacks, in violation of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, and State and City Human Rights Laws.

I. BACKGROUND

The factual and procedural background of this case is substantially detailed in United States v. City of New York, 637 F.Supp.2d 77 (E.D.N.Y.2009) ("D.I. Op." or "Disparate Impact Opinion") (granting Federal Government's and Intervenors' motions for summary judgment on their Title VII disparate-impact claims). Only a general summary and the facts relevant to the instant motions are recited below.

In May 2007, Plaintiff United States of America (the "Federal Government") brought suit against the City of New York (the "City") under Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5 & 2000e-6, alleging that the City's procedures for screening and selecting applicants for entry-level firefighter positions discriminated against black and Hispanic applicants. (See Compl. (Docket Entry # 1) ¶¶ 1, 29-31, 34-37.) The Federal Government challenged two separate employment practices, each involving the City's use of two written examinations to appoint applicants to the rank of entry-level firefighter in the Fire Department of the City of New York ("FDNY" or the "Department"). The first challenged practice was the City's use of the two examinations—Written Examination 7029, first administered in February 1999, and Written Examination 2043, first administered in December 2002—as "pass/fail screening devices" to eliminate applicants who failed the examination from the pool of potential appointees. The second challenged practice was the "rank-order processing" of applicants, whereby applicants who passed the written examination and a physical performance test ("PPT") were placed on a hierarchical hiring list in descending rank order of their combined written-examination and PPT scores, plus applicable "bonus points." See generally D.I. Op., 637 F.Supp.2d at 84-86. The Federal Government alleged that these practices had a disparate impact upon black and Hispanic applicants and were not job-related for the position in question or consistent with business necessity, in violation of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). These claims were resolved by the Disparate Impact Opinion. See generally D.I. Op., 637 F.Supp.2d 77.

In September 2007, the court permitted the Vulcan Society, Inc., Marcus Haywood, Candido Nuñez, and Roger Gregg (the "Intervenors") to intervene in this action.¹ (See Docket Entry # 47.) The Intervenors challenge the same practices challenged by the Federal Government, but the scope of their claims is substantially different. The Intervenors' Complaint alleges discrimination only against black, rather than black and Hispanic, applicants. (Intervenors' Compl. (Docket Entry # 48) ¶¶ 2, 3.) The Complaint adds four defendants to the action: the FDNY, the New York City Department of Citywide Administrative Services ("DCAS"), Mayor Michael Bloomberg, and former New York City Fire Commissioner Nicholas Scoppetta² (collectively, with the City, "Defendants"). Most importantly, in addition to reiterating the "disparate impact" claims from the Federal Government's Complaint, the Intervenors allege that Defendants' use of the pass/fail and rank-ordering procedures constituted intentional discrimination against black applicants. (Id. ¶¶ 3, 51, 56.) This allegation serves as the basis for five additional claims not found in the Federal Government's Complaint: that Defendants' acts violated (1) the "disparate treatment" provisions of Title VII, 42 U.S.C. §§ 2000e-2(a) & 2000e-2(m); (2) the Civil Rights Act of 1866, 42 U.S.C. § 1981; (3) the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983; (4) the New York State Human Rights Law, New York Executive Law §§ 290 and 296; and (5) New York City Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. (Id. ¶¶ 57-61.)³

This court has issued several decisions in this case that affect the posture and determination of the instant motions. First, this case has been bifurcated into separate liability and relief phases. (Docket Entry # 47.) Therefore, the questions currently before the court on the parties' various dismissal and summary judgment motions concern only the Defendants' liability for the charged acts, and not their obligations, if any, to remedy their behavior. Second, upon the Intervenors' motion, this court certified a class consisting of:

All black firefighters or firefighter applicants who sat for either Written Exam 7029 or Written Exam 2043 and were harmed by one or more of the following employment practices:

(1) Defendants' use of Written Exam 7029 as a pass/fail screening device with a cutoff score of 84.75;

(2) Defendants' rank-order processing of applicants who passed Written Exam 7029;

(3) Defendants' use of Written Exam 2043 as a pass/fail screening device with a cutoff score of 70.00; and

(4) Defendants' rank-order processing of applicants who passed Written Exam 2043.

United States v. City of New York, 258 F.R.D. 47, 67 (E.D.N.Y.2009).⁴ Thus, the Intervenors are proceeding as a class rather than as individuals, a fact which, as will be developed below in Section IV.A.2, has important implications for the analysis of their discrimination claims. See generally 1 Lex K. Larson, Employment Discrimination § 9.031 (2d ed. 2008).

A. Disparate Impact Ruling

In July 2009, this court issued a decision granting the Federal Government's and Intervenors' joint motions for summary judgment on their prima facie case of disparate impact and on the City's business necessity defense. D.I. Op., 637 F.Supp.2d at 82-83. This ruling established that the City was liable for disparate-impact discrimination under Title VII. Id. at 132. The ruling itself was based on two basic conclusions:

First, Plaintiffs have shown that there is no triable issue of fact as to whether the City's use of Written Exams 7029 and 2043 has resulted in a statistically and practically significant adverse impact on black and Hispanic firefighter applicants. Black and Hispanic applicants disproportionately failed the written examinations, and those who passed were placed disproportionately lower down than white candidates on the hierarchical hiring lists resulting from their scores. Second, although the City has had the opportunity to justify this adverse impact by showing that it

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