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United States v. Vulcan Society

September 13, 2010


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


On August 4, 2010, this court found that New York City's use of its current written examination, Exam 6019, has discriminatory effects on minority applicants for the position of entry-level firefighter and fails to test for relevant job skills, in violation of Title VII of the Civil Rights Act of 1964. As a result, the court temporarily enjoined the City from using Exam 6019 to appoint entry-level firefighters and directed the parties to begin devising an appropriate, nondiscriminatory interim hiring procedure.

Under the supervision of Special Master Mary Jo White, the parties held multiple meetings to discuss possible hiring measures. Special Master White has submitted a detailed report outlining seven hiring procedures that the parties have proposed. Based on its review of these proposals, the court finds that four of these procedures, as well as one that the court has crafted itself, are lawful, equitable compliance measures that adequately balance the court's duty to eradicate illegal discrimination with the need to safeguard New York's citizens and firefighters. Three of these proposals would require the City to process additional candidates before appointing its next class. (See Proposals 2, 4, and 5 below.) Two would permit the City to appoint a class immediately (Proposals 6 and 7), and one those two proposals would permit the City to immediately appoint all of the candidates that it has processed and found qualified, provided it offsets the disparate impact in a subsequent class (Proposal 7). Because each of these five proposals is a lawful remedy, and because the City is in the best position to weigh its financial and operational interests, as well as the interests of the applicants who took Exam 6019, the court will allow the City to choose which of the five hiring procedures the court will order.


A. Factual and Procedural History

The court assumes familiarity with the factual and procedural background of this case, as set forth in its August 4, 2010 Memorandum and Order (Docket Entry # 505 ("6019 Validity Order").) The court offers only a brief summary below.

Between 1999 and 2008, the City used two competitive examination processes, Exam 7029 and Exam 2043, to screen and select applicants for entry-level firefighter positions. In July 2009, this court held that the City's use of Exams 7029 and 2043 as pass/fail and rank-ordering devices constituted disparate-impact discrimination in violation of Title VII of the Civil Rights Act of 1964. See United States v. City of New York, 637 F. Supp. 2d 77 (E.D.N.Y. 2009). In January 2010, this court held that the City's actions constituted intentional discrimination in violation of Title VII and the Fourteenth Amendment. United States v. City of New York, 683 F. Supp. 2d 225 (E.D.N.Y. 2010).

The disparate-impact and intentional discrimination decisions obligated this court to consider, as an exercise of its remedial jurisdiction, whether the City could continue to use its current entry-level firefighter examination, Exam 6019. See United States v. City of New York, 681 F. Supp. 2d 274, 295 (E.D.N.Y. 2010) ("Initial Remedial Order"); see generally Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975); Guardians Assoc. of New York City Police Dept., Inc. v. Civil Service Comm'n, 630 F.2d 79, 108, 109 (2d Cir. 1980) ("Guardians"). On June 29, 2010, the City informed the court that it intended to use the Exam 6019 eligibility list to hire a new class of approximately 300 firefighters in late August or early September 2010. (Docket Entry # 456.) Accordingly, on July 20 and 21, 2010, the court held a hearing (the "Validity Hearing") at which it took evidence and heard testimony regarding the validity of Exam 6019. On August 4, 2010, the court found that the City's use of Exam 6019 as a rank-order and pass/fail device with a cutoff score of 70 was inconsistent with Title VII because it had a disparate impact on black and Latino applicants and was not job-related. (See 6019 Validity Order.) Based on this finding, the court temporarily enjoined the City from taking any further steps to initiate or finalize a fire academy class using the Exam 6019 eligibility list until October 1, 2010. (Id. 37.)

To assist the court in reaching a permanent equitable solution to the question of interim hiring, the court held a hearing on August 19, 2010 (the "Hiring Hearing"), at which it received testimony and evidence regarding the City's need for a new firefighter class and the means by which a new class could be hired. The court heard testimony from Stephen Rush, the FDNY's Assistant Commissioner for Finance and Budget; Donay Queenan, the FDNY's Assistant Commissioner for Human Resources; and Chief Robert Sweeney, the FDNY's Chief of Operations.

Additionally, at a status conference on August 11, 2010, the court suggested, and the parties agreed, that it would be beneficial for the parties to meet with Special Master Mary Jo White to discuss whether (or to what extent) they could agree on an interim hiring proposal. Accordingly, the Special Master held intensive discussions with the parties over the course of six days to explore lawful hiring options.*fn1 (See Special Master's Report on Potential Interim Hiring Procedures (Docket Entry # 521) ("Hiring Report") 1-2.) On September 4, 2010, the Special Master filed a Hiring Report describing seven proposals that the parties had discussed, as well as the parties' positions regarding the legality and desirability of each proposal.*fn2 (Id.) The parties each filed a response to the Hiring Report on September 9, 2010. (See Docket Entry ## 524-26.)

B. Exam 6019 and the City's Current Hiring Procedure

Approximately 21,983 candidates took Exam 6019, and 21,235 candidates passed by scoring at least 70. (6019 Validity Order 4.) Candidates who failed the exam were excluded from further consideration for the job. The City calculated each passing candidate's "Adjusted Final Average" by adding any applicable residency, veteran, and legacy bonus points to the candidate's exam score.*fn3 (Pl. Proposed Findings of Fact (Docket Entry # 483) ("Pl. PFF") ¶ 15.) The City then assigned each candidate a list number (or rank) based on the candidate's Adjusted Final Average, with the lowest list numbers (i.e., the highest ranks) assigned to the candidates with the highest Adjusted Final Averages. Candidates with the same Adjusted Final Average were ranked based upon their Social Security numbers. (Id. ¶ 17.)

Candidates' exam scores and resulting list ranking determine the order in which they are processed for hiring. Candidates are invited to take the Candidate Physical Ability Test ("CPAT") based on their rank on the Exam 6019 eligibility list. (Id. ¶ 21.) To be appointed, candidates passing the CPAT also have to appear on a certification list, meet all requirements for appointment set forth in the Exam 6019 notice of examination, and pass a medical and psychological examination. (Id.) Because the City hires firefighters in classes -- typically between 150 and 300 hires at a time -- it processes candidates off of the eligibility list in large groups, as many as 1,000 at a time. (6019 Validity Hearing Tr. ("VH Tr.") 227-30.) Because candidates can be eliminated for many reasons, the City typically needs to process between four and five times as many candidates as it plans to appoint. (Id. 228; Hiring Report 7.) The candidates who are found to be qualified are hired in rank-order off of the eligibility list, meaning that a candidate who has completed all steps in the selection process may still not be hired if the City fills its academy class before the candidate's list number is reached. (Pl. PFF ¶ 26.)

After establishing the Exam 6019 eligibility list in June 2008, the City hired one academy class from it in July 2008. According to the Special Master's Hiring Report, the City now wishes to hire two classes of approximately 312 candidates each, one as soon as possible and one in January 2011. (Hiring Report 2 n.1.) As of August 4, 2010, the City had processed approximately 2,000 candidates from the 6019 eligibility list, including the candidates that it processed to select the July 2008 class. (Id. 2.) The City has identified approximately 316 candidates who are currently qualified for immediate appointment to the next academy class, provided they pass the CPAT (hereinafter, the "Qualified Candidates"). The Qualified Candidates have not received notice of their current status and have not yet been called in to take the CPAT. (Id. 3.)


As described in more detail below, the City has not agreed to depart from its plan to hire a new class of firefighters in the ordinary manner. Therefore, any remedial hiring procedure that the court orders -- including giving the City a choice of options -- will take the form of an injunction, and must meet the appropriate standard for equitable Title VII remedies.

As a matter of general equity law, the court may only grant permanent injunctive relief if four factors are present. The court must find: "(1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). As the eBay Court implicitly recognized, however, Congress may abrogate or reduce these requirements when authorizing equitable remedies for statutory violations. See id.

Congress enacted Title VII "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). In order to meet this sweeping mandate, "Congress deliberately gave the district courts broad authority under Title VII to fashion the most complete relief possible." Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 465 (1986). Title VII directly authorizes district courts to choose from a wide spectrum of remedies for illegal discrimination, ranging from compensatory relief such as back pay to "affirmative relief" such as the imposition of hiring quotas. See 42 U.S.C. § 2000e-5(g); Local 28 of Sheet Metal Workers' Int'l Ass'n, 478 U.S. at 464-65; Berkman v. City of New York, 705 F.2d 584, 595-96 (2d Cir. 1983). In particular, once liability for racial discrimination has been established, the district court "has not merely the power but the duty" to "bar like discrimination in the future." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (quoting Louisiana v. United States, 380 U.S. 145, 154 (1965)). This so-called "compliance relief" is designed to assure future compliance with Title VII. Berkman, 705 F.2d at 595. In the context of discriminatory testing regimes, such 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, 630 F.2d at 108.

As the above Supreme Court and Second Circuit decisions make clear, the equitable powers that courts use to remedy Title VII violations flow from Congress's grant of authority in § 2000e-5(g) rather than from the general equitable authority that all district courts possess. See Albemarle Paper Co., 422 U.S. at 418. Consistent with the statutory language and congressional intent, those powers are activated as soon as a Title VII violation is established, rather than upon a further showing of injury or a weighing of hardships and the public interest. See, e.g., id. at 422 (finding of unlawful discrimination triggers backpay award); Rios v. Enterprise Assoc. Steamfitters Local 638, 501 F.2d 622, 629 (2d Cir. 1974) ("Once a violation of Title VII is established, the district court possesses broad power as a court of equity to remedy the vestiges of past discriminatory practices."); Guardians, 630 F.2d at 109 ("Once an exam has been adjudicated to be in violation of Title VII, it is a reasonable remedy to require that any subsequent exam or other selection device receive court approval prior to use."); Berkman, 705 F.2d at 595 (compliance relief, including interim hiring orders, are "appropriate whenever a Title VII violation has been found"); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir. 1997) ("Once employment discrimination has been shown... district judges have broad discretion to issue injunctions addressed to the proven conduct."). Therefore, this court has the authority to order compliance relief based solely on its prior determination that the City's use of Exams 7029 and 2043 violated Title VII, without reference to the traditional injunction standard recited in eBay.

Nonetheless, this court believes it is prudent and appropriate to consider traditional equitable principles when selecting an interim hiring remedy. In particular, the court is sensitive to the potential public safety issues implicated in any firefighter personnel-hiring decision. The court will also consider any genuine budgetary problems that might be occasioned by a lengthy hiring delay. By accounting for these consequences, the court can address the public-interest and hardship-balancing prongs of the eBay standard and, it is hoped, arrive at a genuinely equitable solution.


The Hiring Report sets forth seven proposals for how the City could conduct interim firefighter hiring in a manner consistent with Title VII. The parties disagree strongly about the feasibility and desirability of these proposals, and the City has not agreed to voluntarily ...

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