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United States v. City of New York

September 5, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CITY OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge

MEMORANDUM & ORDER

This Complaint is brought against the City of New York ("Defendant" or "City") seeking enforcement of a provision of Title VII of the Civil Rights Act of 1964, specifically Section 707 of Title VII, codified at 42 U.S.C. § 2000e-6. Plaintiff United States alleges, inter alia: (1) that, in selecting firefighters, Defendant's use of a written examination portion as a pass/fail screening device resulted in an unlawful disparate impact upon Black and Hispanic applicants, and (2) that the City's processing of applicants who passed that written examination and a physical performance test in descending rank order, based on a combination of applicants' scores on the written exam and physical performance test, had an unlawful disparate impact upon Black and Hispanic applicants.

At this time, the court considers two motions to intervene and a motion for bifurcation. The Uniformed Firefighters Association ("UFA") moves to intervene as a defendant. The UFA is the union and collective bargaining agent representing all members of the New York City Fire Department ("FDNY") in the rank of firefighter. (Affidavit of Stephen J. Cassidy in Support of Motion to Intervene ("Cassidy Aff.") at 5 (Docket Entry #15).) In its opposition to that motion, Plaintiff United States of America ("Plaintiff" or "United States") argues that the UFA should be joined instead as a non-liability party pursuant to Fed R. Civ. P. ("Rule") 19(a).

The Vulcan Society ("Vulcans") and three individuals -- Candido Nunez ("Nunez"), Roger Gregg ("Gregg"), and Marcus Haywood ("Haywood") -- move to intervene as plaintiffs. The Vulcan Society is "an organization of black firefighters first constituted in the 1940s in response to what was then quite blatant and open discrimination against firefighters of color." (Intervenor's Complaint ¶ 18.) The three individuals seek to represent a certified class consisting of all Black individuals who are, have, sought or will seek to become firefighters employed by the FDNY who have been or will be subjected to discrimination on the basis of color, race, or national origin because of the allegedly unlawful criteria and selection process utilized by Defendants. The Vulcan Society and the three individuals seek to intervene as party plaintiffs and also to expand the nature of the claims and relief sought in the case, though the Defendant and proposed plaintiff-intervenors have agreed to waive their right to a jury trial. Specifically, in addition to the Title VII disparate impact claims alleged by the United States, the proposed Complaint in Intervention alleges that the City has engaged in intentional discrimination in violation of Title VII, 42 U.S.C. §§ 1982 and 1983 and various state and local laws.

Finally, as briefed by Plaintiff, the existing parties have requested that the court bifurcate all proceedings in this case, including discovery, into liability and relief phases, with relief proceedings to commence only in the event of a liability finding.

For the reasons that follow, I GRANT Plaintiff's uncontested motion to bifurcate all proceedings in this case into a liability phase and, if necessary, a relief phase. Furthermore, for the liability phase, the UFA's motion to intervene is DENIED; however, recognizing the important work this union undertakes and the critical perspective it brings to this litigation, the court invites the UFA to participate in the liability phase as a friend of the court. The motion to intervene by the Vulcan Society, Nunez, Gregg, and Haywood is GRANTED. At this time, the court does not consider the issue of class certification raised by Nunez, Gregg, and Haywood.

I. Bifurcation

Before addressing the parties' intervention motions, I first address the uncontested request that I bifurcate these proceedings into two phases. Specifically, the parties have requested that I bifurcate all proceedings in this case into liability and relief phases, with relief proceedings to commence only after a liability finding. I agree with the parties that bifurcation will save the parties and the court substantial time and expense and will streamline this case significantly. Thus, I grant the United States' uncontested request to bifurcate these proceedings into separate liability and relief phases. I note that on July 24, 2007, Magistrate Judge Mann bifurcated discovery in this case into liability and damages phases, and I now do so for all purposes.

Rule 42(b) provides that the court "may order a separate trial" of any claims or issues "when separate trials will be conducive to expedition and economy." Accordingly, "[o]n its face, Rule 42(b) encourages the severing of issues for trial, guaranteeing trial judges optimum flexibility in structuring litigation with an eye toward providing a fair and efficient remedy." Simon v. Philip Morris Inc., 200 F.R.D. 21, 27 (E.D.N.Y. 2001). This court agrees that "it is important that [bifurcation] be encouraged where experience has demonstrated its worth." Advisory Committee Note to Fed. R. Civ. P. 42(b) (1966). Plaintiff correctly notes that "[e]xperience has demonstrated the value of bifurcation in pattern or practice employment discrimination cases such as this." (Pl. Opposition Brief at 5 (citing Manual for Complex Litigation (4th) § 32.45 ("Employment discrimination class actions have commonly been tried in separate stages under Rule 42(b)").) In general, "litigating the pattern-or-practice liability phase [first] . . . would both reduce the range of issues in dispute and promote judicial economy." Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 168 (2d Cir. 2001).

Here, without bifurcation, substantial time and expense necessary for trial of relief issues would be wasted if Defendant New York City were to prevail on liability. The court's findings in the liability phase may also reeduce the number of firefighter applicants who are eligible for relief, thus streamlining the second phase of the proceedings. As Plaintiff notes, approximately 1,500 of the more than 7,000 Black and Hispanic applicants who took the written exam failed it. (Pl. Opposition Brief at 5 n.7.) Each of them might be entitled to individual relief. The possibility of reducing that number supports bifurcation. In addition, as Plaintiff correctly notes, "when the United States obtains a liability judgment in a case of this nature, the parties frequently settle the relief phase issues." (Id. at 5.)

Accordingly, I order that these proceedings be bifurcated into liability and relief phases, with relief proceedings to commence only after a liability finding, if any.

II. Intervention by Uniformed Firefighters Association as a Party Defendant

By motion dated July 11, 2007, the UFA seeks to intervene as a party defendant as of right pursuant to Rule 24(a) or, in the alternative, by permission pursuant to Rule 24(b). (Docket Entry #15.) At this stage of the proceedings, I hold that the UFA may not intervene under either theory and thus deny its motion to intervene in its entirety. However, I grant the UFA leave to reapply to the court for intervention at a later time in this litigation as appropriate. Furthermore, recognizing the extremely important role that the UFA plays in protecting and enhancing the safety of all its members, I invite the UFA to participate in the entirety of this litigation as a friend of the court.

A. Intervention as of Right

The UFA first seeks to intervene as of right. Rule 24(a) provides:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

The UFA does not rely on subdivision (1), as there exists no statute entitling the UFA to intervene. Because the UFA relies on subdivision (2). If so, it bears the burden of demonstrating that (1) the motion is timely, (2) it has an interest in the litigation, (3) the interest may be impaired by the outcome of the litigation, and (4) the interest will not be adequately represented by the existing parties. See D'Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001); New York News, Inc. v. Kheel, 972 F.2d 482, 485-88 (2d Cir. 1992). I find the UFA's motion is timely under Fed. R. Civ. P. 24 and that the UFA has not waited an unreasonable amount of time to apply for intervention. However, I find that the UFA's interest in the litigation, at the liability stage, is not cognizable and, for that reason, it may not join as a defendant at this time.

A proposed intervenor, in order to show sufficient interest in the outcome of the litigation, must demonstrate an interest that is "direct, substantial, and legally protectable." New York News, Inc., 972 F.2d at ...


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