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United States v. City of New York

July 19, 2010

UNITED STATES OF AMERICA, PLAINTIFF, AND THE VULCAN SOCIETY, INC., MARCUS HAYWOOD, CANDIDO NUÑEZ, AND ROGER GREGG, PLAINTIFF-INTERVENORS,
v.
THE CITY OF NEW YORK, DEFENDANT.



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

ORDER

The parties have submitted various motions in limine in advance of the July 20, 2010 hearing regarding the validity of Exam 6019 ("the Hearing"). For the following reasons, the court GRANTS the United States' motion in part and reserves judgment in part; DENIES the Plaintiff-Intervenors' motion; and GRANTS Defendant City of New York's motion in part and reserves judgment in part.

I. DISCUSSION

A. Plaintiff United States' Motion to Exclude

i. CPAT Evidence

The City plans to introduce exhibits and testimony relating to the Candidate Physical Ability Test ("CPAT"), the physical abilities test that the City uses as part of its current firefighter selection process. In particular, the City proposes to introduce (1) testimony from Lieutenant Michael Cacciola regarding the validation of the CPAT, "the importance of the CPAT and the impact of physical fitness on becoming an entry-level firefighter, and the efforts by [the] FDNY to assist potential candidates in passing the CPAT"; (2) testimony from Richard Duffy of the International Association of Fire Fighters regarding the validation of the CPAT; (3) Exhibit C-2, titled "Candidate Physical Ability Test, Second Edition"; and (4) Exhibit C-1/D-1, titled "Physical Preparation Manual for CPAT." (See Docket Entry # 473.) The United States moves to exclude this evidence as irrelevant and as inadmissible opinion testimony.

The court agrees with the United States that this proposed evidence is irrelevant to the Hearing. The purpose of the Hearing is to determine whether the City's use of Written Examination 6019 on a pass/fail and rank-order basis is valid under Title VII. The FDNY's physical test -- formerly the PPT, now the CPAT -- has never been at issue in this litigation, and there is no reason to place it at issue now. The "validity" of the physical test has absolutely no bearing on the validity of the written exam. In fact, it would be an irresponsible overreach for this court to pass judgment on the CPAT, given that no party has ever questioned its usefulness or validity.

ii. Evidence Relating to Bonus Points and Candidate Investigations

The City seeks to introduce evidence relating to the effect that "bonus points" (residency, veterans, and legacy credits) have on candidates' ranking. (See Docket Entry # 473.) According to the City's Proposed Findings of Fact, this evidence will demonstrate that the use of bonus points disproportionately benefits black and Hispanic candidates. (See Docket Entry # 492 ¶¶ 24-30.) The City also seeks to introduce evidence and testimony concerning the rates at which minority candidates who pass the written exam and are called for processing are later disqualified for reasons unrelated to the exam -- for example, as a result of failing the medical exam or CPAT. (See Docket Entry # 473.) All of this evidence is irrelevant to the question of whether the City's pass/fail and rank-order uses of Written Examination 6019 are valid. Like the CPAT, the City's use of bonus points and its post-exam candidate-investigation processes are not at issue in this Hearing. The use of bonus points may well impact a candidate's ranking, but that has no bearing on whether Exam 6019 scores usefully distinguish between more and less-qualified candidates. The fact that minorities may be more likely than whites to be disqualified for reasons unrelated to the test is immaterial to the validity of the test itself.

iii. Lieutenant Cacciola's Testimony

The United States objects to the proposed testimony of Lieutenant Cacciola concerning "[t]he importance of reading comprehension and its impact on becoming an entry-level firefighter" and "[t]he importance of organizational skills and their impact on becoming an entry-level firefighter, and the benefit of a military background in developing such skills." (See Docket Entry # 473.) To the extent that Lieutenant Cacciola is attempting to offer lay opinion testimony regarding the job-relatedness of Exam 6019's reading comprehension requirements, that issue is "beyond the realm of common experience and . . . require[s] the special skill and knowledge of an expert witness." Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979); see Fed. R. Civ. P. 701. Because Lieutenant Cacciola was not timely designated as an expert witness, he may not offer expert testimony. To the extent that Lieutenant Cacciola's proposed testimony concerning organizational skills is intended to demonstrate Exam 6019's validity, the court strikes it for the same reason. To the extent that such testimony is offered in support of the use of bonus points based on military service, it is also irrelevant for the reasons explained above.

iv. Dr. Cline's Rebuttal Report

The United States also seeks to exclude what it characterizes as new opinion testimony in Dr. Catherine Cline's Expert Rebuttal Report. In the Rebuttal Report, Dr. Cline states -- according to Plaintiffs, for the first time -- that "scores from Examination 6019 are not used in a strict rank-order fashion" because "rank order on the 6019 Firefighter civil service list is a function of both examination score and bonus points." (Rebuttal Report 18.) Dr. Cline also states that "firefighters are not hired on a rank order basis, but on a class basis." The United States asserts that these statements constitute new opinions that cannot be raised for the first time in a rebuttal report under Fed. R. Civ. P. 26(a)(2)(B)(I) & (a)(2)(C)(ii). It is not clear to the court that Dr. Cline's statements are "opinions," or that they are particularly novel. See United States v. City of New York, 637 F. Supp. 2d 77, 85 (E.D.N.Y. 2009) ("Adjusted Final Average" for Exams 7029 and 2043 "was created by ...


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