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United States v. City of New York

January 21, 2010

UNITED STATES OF AMERICA, PLAINTIFF, AND THE VULCAN SOCIETY, INC., FOR ITSELF AND ON BEHALF OF ITS MEMBERS; MARCUS HAYWOOD, CANDIDO NUÑEZ, ROGER GREGG, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-INTERVENORS,
v.
CITY OF NEW YORK, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff United States of America (the "Federal Government"), as well as the Vulcan Society, Inc. (the "Vulcans" or the "Vulcan Society"), Marcus Haywood, Candido Nuñez, and Roger Gregg (the "Individual Intervenors") (together with the Vulcans, the "Intervenors"), brought suit to challenge the use by Defendant City of New York (the "City") of two written examinations in the screening and selection of applicants for entry-level firefighter positions in the Fire Department of New York ("FDNY"). Based upon extensive briefing and voluminous factual submissions from the parties, the court found the City liable for disparate-impact discrimination on July 22, 2009 (see Docket Entry # 294) and intentional discrimination on January 13, 2010 (see Docket Entry # 385).

Following its two liability rulings, the court now proceeds to the remedial phase. The parties have briefed remedial proposals in light of the court's first liability ruling -- the disparate impact decision.*fn1 The parties have also briefed the Intervenors' motion to continue class certification for the purposes of the remedial phase. (See Docket Entries ## 328-35, 352, 354, 366.) In this Memorandum & Order, the court does not order any particular form of relief. Instead, the court outlines the broad contours of relief and resolves several basic disputes regarding the implementation of a remedy. The court reserves ruling on many of the subsidiary details that require further information from the parties, and raises numerous issues regarding those details.*fn2 These issues are listed in the Conclusion Section, infra, and the parties should be prepared to address them at a conference to be scheduled for the second week in February (the "February Conference").

In essence, the court concludes that two broad forms of relief are needed to remedy the City's discrimination: (1) compensation for the identified victims of the City's discriminatory testing practices, and (2) compliance measures to ensure that the City implements and administers a fair and job-related test for entry-level firefighters. These forms of relief are simple in concept, but will be complex in execution. Achieving these basic aims will require ongoing oversight, attention to myriad details, and resolution of disputes among the parties.

As set forth in more detail below, the court will order the following measures designed to compensate identified victims of discrimination: (1) there will be a notice-and-claims procedure by which the approximately 7,400 minority applicants who sat for Written Examinations 7029 and 2043 will have the opportunity to claim entitlement to relief; (2) the City will have the opportunity, and the burden, to show that any of these individual candidates were not victims of discrimination because they were not hired for legitimate reasons; (3) the remaining, identified victims of discrimination will be eligible for monetary relief, apportioned on a pro rata basis among them; (4) 293 victims of discrimination -- the shortfall of minority hires resulting from the City's use of Written Examinations 7029 and 2043 -- will be eligible for priority hiring relief, provided that they meet the current requirements for appointment as an entry-level firefighter; and (5) retroactive seniority will be available to priority hires, as well as to those whose hiring was delayed by the City's discrimination. The court provides further detail on these areas below, and raises several issues for the parties to address at the February Conference.

The court will also order the following compliance relief: (1) the City, in conjunction with the other parties, will develop a new testing procedure for the position of entry-level firefighter; (2) the court will conduct a hearing to consider the validity of the City's current examination, Written Examination 6019, and to decide whether and how the City may use that examination on an interim basis; (3) following the development of a new test, the court will consider whether that new test serves the City's legitimate needs as well as, or better than, Exam 6019, and has less discriminatory impact on minority candidates, and is thus a preferable nondiscriminatory alternative to Exam 6019; and (4) if the new examination is a better alternative to Exam 6019, the court will order steps to implement that examination and consider measures to ensure ongoing compliance with Title VII. In reaching these conclusions, the court declines at this time to impose interim hiring quotas on the City as part of its remedy. The court provides further detail on these areas below, and raises several questions for the parties to address at the February Conference.

In what follows, the court begins by setting out the basic legal framework for the types of relief ordinarily available in Title VII cases. The court then provides a summary of the preliminary relief order proposed by the Federal Government (the "PRO"). Next, the court addresses the scope of individual and compliance relief. The court goes on to address some of the proposals made by the Uniformed Firefighter Association ("UFA") and the Intervenors. Finally, the court addresses the issue of remedial-phase class certification. In the Conclusion Section, the court summarizes its principal conclusions and lists the issues that the parties should be prepared to address at the February Conference.

I.BASIC FORMS OF AVAILABLE RELIEF

"The primary purposes of Title VII are to prevent discrimination and achieve equal employment opportunity in the future, and to make whole the victims of past discrimination." Assoc. Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 278 (2d Cir. 1981) (internal citations omitted) ("AADE"). In order to achieve these purposes, a "district court has broad, although not unlimited, power to fashion the relief it believes appropriate." Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir. 1983). Courts have generally recognized three categories of relief in Title VII cases: compliance relief, compensatory relief, and affirmative relief. See id. at 595.

Compliance relief is "designed to erase the discriminatory effect of the challenged practice and to assure compliance with Title VII in the future." Id. Among other measures, compliance relief involves "restricting the use of an invalid exam, specifying procedures and standards for a new valid selection procedure, and authorizing interim hiring that does not have a disparate racial impact." Guardians Assoc. of New York City Police Dept., Inc. v. Civil Service Comm'n, 630 F.2d 79, 108 (2d Cir. 1980) ("Guardians"). It may also involve "restricting appointments from an eligibility list compiled by reference to the results of an invalid test. . . ." Berkman, 705 F.2d at 595. Compliance relief is "appropriate whenever a Title VII violation has been found, irrespective of any history of prior discriminatory practices or the intent of the defendant." Id. (citing AADE, 647 F.2d at 278 and Guardians, 630 F.2d at 108 & n.25).

Compensatory relief is "designed to 'make whole' the victims of the defendant's discrimination." Id. "The object in making a plaintiff whole is simply to place the injured party, as near as may be, in the situation he would have occupied if the wrong had not been committed." Sands v. Runyon, 28 F.3d 1323, 1329 (2d Cir. 1994) (internal quotation marks, alteration and emphasis omitted). Such make-whole relief typically includes "backpay, payment of the value of past fringe benefits, and retroactive seniority." Berkman, 705 F.2d at 595. "These forms of relief are generally appropriate under the same circumstances as compliance relief." Id. (citing AADE, 647 F.2d at 278-80). "To the extent that an order requires the hiring of a . . . victim of the discrimination . . .[,] it constitutes both compliance relief and compensatory relief." Id. at 595-96.

Finally, affirmative relief is "designed principally to remedy the effects of discrimination that may not be cured by the granting of compliance or compensatory relief." Id. at 596. This type of relief may involve "setting of long-term hiring targets or the imposition of a requirement that the defendant actively recruit or train members of the Title VII-protected group," as well as "interim hiring relief that is extended to persons other than members of the plaintiff class and in proportions exceeding the ratio of plaintiff class members to the total applicant pool." Id. Such relief is only appropriate when a "defendant's discrimination has been intentional, or there has been a long-continued pattern of egregious discrimination." Id.

II.THE PROPOSED RELIEF ORDER

The PRO submitted by the Federal Government is the starting point in fashioning the appropriate remedy. It is laid out in eight sections, each addressing a different aspect of the proposed remedial plan.*fn3 Section I provides definitions of terms that are used later in the PRO. (See PRO ¶¶ 1-10.) Section II, entitled "General Injunctive Relief," prohibits the City from

(1) relying on Written Examinations 7029 or 2043 as part of a firefighter selection process,

(2) retaliating against any person who has complained about discrimination, participated in the investigation or litigation of discrimination, or sought or obtained relief in this litigation

(3) using any written examination as part of a firefighter selection process in a manner that results in a disparate impact upon black or Hispanic applicants and is not job-related, or in a manner that is otherwise inconsistent with the requirements of Title VII, or (4) using any written examination for the job of entry-level firefighter without prior approval of the court. (See id. ¶¶ 11-13.)

Section III, entitled "Interim Hiring Procedure," addresses the City's hiring needs in the period during which a final remedy is imposed. This Section permits the City to continue using its current open-competitive eligible list from its current written examination, Written Examination 6019. Under the PRO, the City may continue using Exam 6019 until the earlier of January 1, 2011 or the date on which a new eligibility list is created based upon newly established selection procedures (the development of which is provided for later in the PRO). (See id. ¶ 14.) The City would subsequently have to hire from among the black and Hispanic applicants on the Exam 6019 eligibility list who had not yet been reached for selection until any "shortfall" of such applicants resulting from any disparate impact form the interim use of Examination 6019 had been remedied. (See id. ¶ 15.)

Section IV, entitled "Individual Relief," sets out procedures to determine which individuals have been affected by the City's discrimination and to establish the amount and kind of relief they are entitled to. This Section requires the City to deposit into an interest-bearing account the total amount of money that will eventually be paid in monetary awards to identified black and Hispanic victims of discrimination.*fn4 (See id. ¶¶ 16-17.) It establishes a notice-and-claims process for black and Hispanic applicants who sat for Written Exams 7029 and 2043, which would notify victims of the availability of relief, and require each to submit a claim form to the Federal Government. (See id. ¶¶ 18-20.) Claimants would be required to indicate the form of relief sought. (See id. ¶ 21.) Section IV then requires the Federal Government to summarize the claims information and to make an initial relief eligibility and apportionment determination with respect to each claimant. (See id. ¶¶ 21-24.) It also provides a process by which the parties would seek to resolve, outside of court, any disagreements with respect to these initial relief determinations. (See id. ¶¶ 25-27.)

Following these initial determinations, Section IV requires the Federal Government to submit to the court a "Relief Awards List" containing information about each individual who submitted a claim form, including the type of relief sought and the Federal Government's assessment of eligibility and amount of appropriate relief. (See id. ¶ 28.) Section IV provides for a "Fairness Hearing" following the submission of this Relief Awards List, which would allow affected parties to object to these initial remedial determinations. (See id. ¶ 29.) The court would resolve any objections and a final remedial list would then be approved. (See id. ¶¶ 30-33.)

Section IV also sets out the forms of relief that would be distributed. First, it provides for "monetary relief awards" to be provided to eligible applicants, and sets out a procedure for payment. (See id. ¶¶ 34-40.) Second, it provides for "priority hiring" relief, which would permit up to 293 black and Hispanic candidates who failed Written Examination 7029 or 2043 to be hired on a priority basis by the City.*fn5 (See id. at ¶¶ 41-53.) Specifically, following the entry of a final relief order, the City would have to appoint two black priority hires and one Hispanic priority hire out of every five appointments for entry-level firefighter until 293 qualifying minority applicants had been offered a position (or the list of such applicants had been exhausted). In doing so, the City would not be required to offer a position to any claimant determined to be currently unqualified based upon the City's objective, nondiscriminatory criteria. (See id. ¶¶ 49-53.) A candidate's current qualifications for appointment would not consider whether he or she had met an age requirement. (See id. ¶ 53.)

Finally, Section IV provides for the awarding of "retroactive seniority" relief to some of the victims of discrimination, including seniority for the purposes of pay, pension and benefits, as well as "competitive" seniority used when incumbent firefighters compete for promotions, transfers or other benefits. (See id. ¶¶ 54-56, 10.) Such seniority would be available to those who were hired under the "priority hiring" relief mentioned above, as well as to those victims who were already hired by the City, but whose hiring was delayed because of the discriminatory impact of Written Examinations 7029 and 2043. (See id.) The calculation of seniority would extend back until the victim's "presumptive hire date" -- i.e., a victim would be entitled to seniority as of the median hiring date for the eligibility list created from either Exam 7029 or 2043 (depending upon which the applicant sat for). (See id. ¶¶ 54-55, 9.) A victim would be awarded seniority as if they had been hired on February 2, 2003 (the median hire date of the Exam 7029 eligibility list) or June 11, 2006 (the median hire date for the Exam 2043 eligibility list). (See id. ¶ 9.)

Section V, entitled "Development of a New Selection Procedure," requires the City, in consultation with the Federal Government and the Vulcan Society, to "design, develop and validate" a new selection procedure for the job of entry-level firefighter. (See id. ¶ 57.) Following the development and validation of a new selection procedure, the City would report its results to the Federal Government and the Vulcans, who could either (1) agree to jointly submit the new test for the court's approval, and seek implementation of an eligibility list based upon the new procedure within six months, or (2) file objections to the new procedure with the court, and seek a hearing to determine the validity of the new test and the availability of alternative procedures for prompt implementation.*fn6 (See id. ¶¶ 58-61.)

Section VI, entitled "Compliance Monitoring," requires the City to maintain various records and documents relating to its hiring of entry-level firefighters and its compliance with the court's remedial order. (See id. ¶¶ 63-67.) The Section requires the City to make these records available to the Federal Government and to the Vulcans upon request. (See id. ¶ 64.) It also requires the City to make available for interview or deposition any individuals with knowledge or information necessary to verify the City's compliance. (See id. ¶ 65.) As part of its compliance obligations, the City would also have to provide reports to the Federal Government and to the Vulcans about various aspects of its entry-level firefighter selection process. (See id. ¶¶ 66-67.)

Section VII of the PRO, entitled "Retention of Jurisdiction," provides for the retention of the court's jurisdiction over the case until certain benchmarks have been reached. (See id. ¶ 68.) Section VIII, entitled "Costs and Fees," requires the City to pay for certain costs and fees incurred in the course of the litigation. (See id. ¶¶ 69-71.)

III.INDIVIDUAL RELIEF

Following its liability rulings, the court must fashion relief that "makes whole" the victims of the City's discriminatory testing practices. The PRO sets out a basic framework for awarding that type of relief, and the court will adopt the broad contours of the Federal Government's proposal, including: a notice-and-claims process designed to identify -- and seek information from -- black and Hispanic applicants who sat for Written Examinations 7029 and 2043; a process by which the City may attempt to show a nondiscriminatory reason for not hiring those applicants; a pro rata distribution of monetary benefits to the identified victims of discrimination; and a determination of which 293 victims, if any, are currently interested and qualified to be awarded priority hiring as entry-level firefighters with retroactive seniority.

The City objects to several aspects of this relief, and the court has identified several areas in which further information is required. In this Section, the court addresses: (A) the burdens of proof applicable to individual relief determinations; (B) the process for making individual relief determinations; (C) the distinction between those victims eligible for monetary relief only and those also eligible for priority hiring; and (D) the availability of retroactive competitive seniority.

As set forth below, the court concludes that (A) the basic, burden-shifting framework set out by the Supreme Court in Franks v. Bowman Transportation Company, 424 U.S. 747 (1976), is applicable to the remedial determinations in this case; (B) further information or clarification from the parties is needed on the process for making individual relief determinations; (C) only applicants who are currently qualified to be firefighters are eligible for priority hiring, but further information or clarification is needed on the nature of those qualifications; and (D) the retroactive seniority set out in the PRO is properly available to priority hires, but further information or clarification is needed concerning retroactive seniority for victims delayed by the City's discriminatory practices.

The court addresses each of these four areas in turn. In doing so, the court overrules the City's objections to the basic burden-shifting framework at the relief phase, and to the award of retroactive competitive seniority as an available form of relief.

A.Burden to Prove Individual Eligibility

The City argues that the PRO improperly lightens Plaintiffs'*fn7 burden to show that particular individuals were actual victims of the City's discriminatory hiring practices. According to the City, following the court's liability ruling, Plaintiffs still carry a burden:

They must prove which of the class members would have actually gone forward with the [hiring] process. Thereafter, the defendants have the burden of showing which of those, in this reduced pool, would not have been able to enter the academy. Then, a further examination and determination is still required for the Court to determine which class members were actually victims, i.e., which would have actually advanced beyond simply being on a list and gone to the Fire Academy. (See Defendants' Opposition (Docket Entry # 347) ("Def. Mem.") 23-24.) For support, the City relies principally on the Supreme Court's decisions in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) and Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984). The City points to language, for example, that a plaintiff "must carry [the] burden of proof, with respect to each specific individual, at the remedial hearing to be conducted by the District Court . . . ." (Def. Mem. 20 (quoting Teamsters, 431 U.S. at 371); see also id. at 20-21 (quoting Stotts).) What the City ignores, however, is that the quoted language applies to a type of claim that is not present in this case: a claim by an individual who did not actually apply for a job, but who claimed to have been deterred by a selection practice. For the type of claim at issue here, however, the applicable burden-shifting framework was set forth by the Supreme Court in Franks v. Bowman Transportation Company, 424 U.S. 747 (1976).

In Franks, the Supreme Court held that "proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief" for the victims of discrimination.

Teamsters, 431 U.S. at 359 n.45 (describing Franks). Plaintiffs "need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination." See id. at 362. Following this showing, "the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons." Id. (citing Franks, 424 U.S. at 773 n.32); see also 42 U.S.C. § 2000e-5(g)(2)(A). By its terms, this burden-shifting framework applies to cases in which actual applicants for employment have been refused a job on account of a discriminatory selection practice.

In Teamsters, the Supreme Court expressly affirmed -- and extensively relied upon -- its decision in Franks. A new issue presented in Teamsters, however, was how a court should assess the claims of individuals who did not actually apply for the job in question, but who nonetheless claimed to have been deterred by a discriminatory hiring practice. See Teamsters, 31 U.S. at 364-71. The Supreme Court held that seniority relief would be available to such individuals only if they could demonstrate that they were "potential victim[s] of unlawful discrimination." Id. at 367. The Supreme Court held that a non-applicant claiming to be deterred by an employer's discriminatory practices bears "the not always easy burden of proving that he would have applied for the job had it not been for those practices." Id. at 367-68. "When this burden is met, the non-applicant is in a position analogous to that of an applicant and is entitled to the presumption" applicable to actual applicants. Id. at 368. In other words, Teamsters held that nonapplicants bear the burden of demonstrating that they would have applied for a job, but it did not disturb the presumption of relief afforded to actual applicants.

Nor did the Supreme Court's holding in Stotts alter this distinction in the burdens of proof between applicants and nonapplicants. In the Stotts language quoted by the City, the Supreme Court noted that individuals who prove that they were victims of discrimination may be awarded competitive seniority, but those who were nothing more than members of the same minority group as those victims could not necessarily be awarded such relief. Stotts, 467 U.S. at 578-79. This language -- relying on Franks and Teamsters -- does not address the manner by which applicants and nonapplicants may satisfy their burden. As set forth in Teamsters, actual applicants meet their initial remedial burden by showing that they have unsuccessfully applied for a position, while nonapplicants satisfy their burden only by affirmatively demonstrating that they would have applied. 431 U.S. at 357-71.

Consistent with Teamsters and Stotts, individual relief in this case is available to actual test takers -- i.e., those who sat for Written Examinations 2043 and 7029 -- unless the City is able to show that those individuals would not have been hired for nondiscriminatory reasons. As set forth in the PRO, actual test takers would receive notice of the availability of relief, and would be given the opportunity to submit a claim form indicating that they sat for Written Examination 7029 or 2043, and were discriminated against based upon the City's use of one of those examinations. (See PRO ¶¶ 18-20.) Once a claimant comes forward with evidence that, for example, he or she failed Written Examination 7029 or 2043, that individual would be entitled to a presumption that he or she was the subject of discrimination and is entitled to compensatory, make-whole relief.*fn8 See Teamsters, 431 U.S. at 362; see also Cohen v. West Haven Bd. of Police Com'rs, 638 F.2d 496, 502 (2d Cir. 1980) ("Where there has been an unlawful refusal to hire, individual class members establish their prima facie entitlement to backpay simply by showing that they applied for the job and were not hired."); Acha v. Beame, 531 F.2d 648, 656 (2d Cir. 1976) (noting that plaintiff could "satisfy her burden by demonstrating that she actually filed an application for employment").

Following this simple showing, the burden would rest on the City "to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons." Teamsters, 431 U.S. at 362 (citing Franks, 424 U.S. at 773 n.32); see also Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 159-60 (2d Cir. 2001). The City could attempt to show that, based upon nondiscriminatory hiring criteria in place at the time, the City would not have hired the individual, or the individual would have voluntarily withdrawn from the process. Doubts as to the existence of such nondiscriminatory reasons would be resolved against the City, which is responsible for the uncertainty. See Cohen, 638 F.2d at 502; AADE, 647 F.2d at 289. Should the City succeed in showing a nondiscriminatory reason, no relief would be awarded. If the City should fail to show a nondiscriminatory reason, the claimant would be entitled to make-whole relief.

To the extent that the City objects to this burden-shifting framework, the City's objection is OVERRULED.

B.Process for Determining Individual Eligibility

In order to provide individual relief to the victims of the City's discrimination, the court must implement a workable process by which the thousands of potential victims can be identified and compensated. The PRO establishes the starting point. It sets out a claims process coupled with pro rata relief that will allow the court to approach the task of remedying widespread discrimination without resorting to thousands of individualized hearings. It also sets out a process in which the Federal Government would make the initial eligibility determination, the City and the Vulcans would object, and the parties would attempt to resolve their differences outside of court. (See PRO ¶¶ 25-27.) Following this process, the Federal Government would provide the court with its initial eligibility determinations, to which any party (including the City, the Vulcans, individual claimants, and others) would have the chance to object at a court-ordered "Fairness Hearing." (See id. ¶¶ 28-30.)*fn9 This would limit the number of disputes that the court would be required to resolve.

Nonetheless, the court requires further information to determine whether all the particulars of the process set out in the PRO should be ordered as currently drafted. The court identifies three issues with respect to the eligibility determinations. First, the PRO does not explicitly state that its initial, out-of-court eligibility determinations will be made in accordance with the Franks burden-shifting framework. In other words, the PRO does not state that a claimant would have the initial burden of demonstrating that he or she was an actual test taker, followed by an opportunity for the City to satisfy its burden to show a nondiscriminatory reason for its hiring decision.*fn10 (See PRO ¶ 22.) Instead, it appears that the Federal Government would make an initial, out-of-court eligibility determination, and that each of its determinations would have the presumption of correctness. Any objecting party -- whether it be a claimant, a third party, or the City -- would have the burden of overcoming that presumption. (See PRO ¶¶ 31, 33 (requiring any objector to show that United States' determination was not "reasonable, equitable and consistent with the provisions of this Order"); see also PRO ¶ 32 (requiring any objector to priority hiring determination to show that claimant "would not have been hired from the relevant eligible list, absent the City's use of the practices the Court has found resulted in an unlawful disparate impact in violation of Title VII").) Providing a presumption in favor of the Federal Government's determinations would help to streamline a process which will involve assessing thousands of potential award recipients.*fn11 But, the precise process for making such a determination is not clear to the court from the face of the PRO. The parties should be prepared to address the details of the eligibility determination process at the February Conference.*fn12

Second, the initial eligibility determination should involve a simple determination of whether an individual sat for one of the two discriminatory examinations, followed by a determination of whether the City has shown a nondiscriminatory reason that an individual would not have been hired. The reasons the City will rely upon will likely fit into a discrete universe of nondiscriminatory qualifications for the job of entry-level firefighter at the time of Written Examination 7029 and 2043. The City might argue, for example, that a particular claimant was not medically, psychologically or physically fit, or that he or she had a criminal record. (See Declaration of Richard A. Levy (Docket Entry # 264), Ex. L (Notices of Examinations 7029 and 2043).) It might, therefore, be efficient for the City to develop early on a list of the nondiscriminatory criteria it will rely upon to challenge individual claimants' eligibility. The court could then settle any disagreement about these criteria and provide the parties with a framework for the City's objections going forward. Establishing such criteria would increase efficiency by allowing eligibility determinations to be made with the aid of identified standards, and allowing the court to resolve any disputes about those standards.*fn13

Third, although the City bears the burden of proving nondiscriminatory reasons for individual hiring decisions, it might be inefficient for the City to gather all the information relevant to its objections. For example, information about some of the individual qualifications, such as a criminal record or a high school diploma, could be more easily obtained from the individual claimants themselves. To increase efficiency, therefore, the individual claim forms might require information about some of the straightforward qualifications, to be supplied under oath, from claimants themselves. Requiring the claimants to provide this information would likely have little effect on the burden of proof for making the ultimate qualifications determination. Cf. AADE, 647 F.2d at 289 ("With respect to most of the City's prerequisites . . . we would expect the allocation of the burden of proof to have little impact.").*fn14

In sum, the court substantially agrees with the PRO's eligibility framework, but requires the parties' views on several issues relating to the implementation of that process. At the February Conference, the parties should be prepared to address these issues.

C.Types of Individual Relief: Monetary or Hiring

For victims who failed the written examinations, two basic categories of make-whole relief are available: monetary relief and hiring relief. Yet, not all victims will necessarily be entitled to both forms of relief. (See PRO ¶ 23.) This is sensible because, as set forth below, entitlement to priority hiring requires a victim to be currently qualified to be an entry-level firefighter, but entitlement to monetary relief does not.

Eligibility for compensatory relief, as a general matter, turns on a candidates' qualifications at the time of Written Examination 7029 and 2043. See, e.g., AADE, 647 F.2d at 289. The hiring of a victim as a remedial measure, however, depends on the victim being currently in compliance with the City's nondiscriminatory qualifications for entry-level firefighter. See Franks, 424 U.S. at 772-73 n.31 (noting that applicants must be "presently qualified" to be eligible for priority hiring). Such qualifications appear to include physical, medical, and psychological fitness tests, as well as background checks and basic language proficiency.*fn15 (See Declaration of Sharon Seeley (Docket Entry # 316) ("Seeley Decl."), Ex. E (setting forth qualifications from Notice of Examination 6019); see also PRO ¶¶ 45-53 (setting forth procedures for determining current qualifications for priority hiring).) Moreover, to ultimately work as a firefighter, a victim would have to successfully complete training at the Fire Academy.*fn16 Should a claimant be unable to meet these qualifications, he or she would be limited to monetary relief.

The distinction between eligibility for monetary relief and hiring relief balances the need to make whole the victims of past discrimination with the concern for public safety that is inherent in any decision to hire a firefighter.*fn17 The need to ensure that firefighters possess relevant qualifications can outweigh the preference for hiring as an available form of make-whole relief. See AADE, 647 F.2d at 281-82 n.24 (rejecting argument that relief order would "require the City to hire persons who are not qualified to be firefighters," because, in part, "[a]ll will be required to pass physical fitness tests, and meet the City's other requirements, other than the written test"). In order to balance these considerations, the City must be given the opportunity to challenge a victim's current qualifications for the job of entry-level firefighter.

The PRO sets out a procedure that allows the City to do so. (See PRO ¶¶ 45-53.) Among those eligible for priority hiring, the City would have to make an "offer of priority hire" to up to 293 victims.*fn18 (See PRO ¶¶ 41-46.) The City would have no obligation to hire any individual who, for example, refused hiring, failed a post-offer medical or psychological evaluation, or failed to appear without good cause on his or her first day at the Fire Academy. (See id. ¶ 47.) The PRO also permits the City to contend that a claimant is "not currently qualified for the entry-level firefighter position using the lawful, objective hiring criteria in use by the City at that time . . . ." (See id. ¶ 49.) The parties would attempt to resolve any dispute over current qualifications outside of court, and the ...


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