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United States v. City of New York

October 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.

DECISION AND INJUNCTION

On June 29, 2010, the City -- asserting that it had an "immediate" need for additional firefighters -- notified the court of its intent to initiate a new firefighter class by the first week of September. (Docket Entry # 456.) On July 16, 2010, the City claimed that if hiring were delayed by "three to six months," it "would impair public safety in the City of New York." (Docket Entry # 491 at 15-16.) At that time, the parties were preparing for a hearing on the validity of Exam 6019, the City's current written examination for entry-level firefighters.

The court asked the parties to suggest hiring methods that the City could use if the court were to find that some aspect of Exam 6019 was inconsistent with Title VII of the Civil Rights Act of 1964. The City proposed random selection from a pool of the highest scorers on Exam 6019, selected "in proportion to the rates at which those ethnicities took the examination." (Docket Entry # 491 at 17.) This approach would have ensured that the City did not use Exam 6019 in a way that disparately impacted black and Hispanic firefighters. The City touted two additional benefits of its proposal: (1) "it would ensure that only top candidates are selected" and (2) it did not involve a "quota." (Id.)

The City has since repudiated each of these positions. It first represented that its need for firefighters was based on safety, and later that it was based on financial considerations. Now, the City asserts that even the financial benefits of hiring are minor -- and it appears to be contemplating eliminating existing firefighter jobs to save money. The City has also rejected interim hiring procedures that would have allowed it to hire many of the firefighter applicants it has already processed. Some of those applicants have been patiently waiting to join the Fire Department since well before July 2008, the last time that the City hired new firefighters.

Moreover, when presented with an interim hiring option that was nearly identical to the City's own proposal, the City called it a "quota," "bad policy," and -- without any support -- "illegal." The City has not come forward with any other method of hiring that is both acceptable to it and compatible with the law. Now, in the City's own Orwellian phrasing, delaying hiring until a new exam is created "is not an unacceptable alternative." (Docket Entry # 561 at 5.)

The City's shifting and contradictory positions have needlessly diverted the parties from the critical work of developing a new examination. The City has imposed unnecessary burdens on the other parties, a Special Master who has generously donated her time, and this court.*fn1

The City gave hope to candidates who took Exam 6019, only to capriciously dash that hope based on contrived and fundamentally irreconcilable positions. With its hyperbolic -- and ultimately baseless -- claims regarding public safety, the City has needlessly jeopardized its own credibility in the areas where it matters most. While the court is dismayed by the City's apparent duplicity and lack of good faith, it is not entirely surprised. This is simply the latest episode in the City's long campaign to avoid responsibility for discrimination in its Fire Department, whatever the cost. Should this conduct continue, the court will be forced to consider whether litigation sanctions are appropriate.*fn2

In this order, the court permanently enjoins the City from hiring firefighters based on the results of Exam 6019, except under one of the interim approaches already endorsed by the court (the "Hiring Options.") (See Docket Entry # 527.) Plaintiff and Plaintiffs-Intervenors (collectively, "Plaintiffs") initially sought such relief (Docket Entry # 558), but now indicate that, because the City "has chosen to defer hiring," it is no longer necessary (Docket Entry # 566 at 1). The court disagrees with Plaintiffs' characterization of the City's position and the need for further injunctive relief.*fn3 The City itself does not raise any objection to injunctive relief, except insofar as it disagrees with its predicate, the court's conclusions regarding the validity of Exam 6019.

I. BACKGROUND

A. Litigation Generally

The court's previous orders have chronicled the factual and procedural background of this case. (See, e.g., Docket Entry # 505 ("6019 Validity Order"); Docket Entry # 385 ("Disparate Treatment Opinion"); Docket Entry # 294 ("Disparate Impact Opinion").)*fn4

Accordingly, the court provides only some general context below.

1. The Composition of the Fire Department

The Fire Department's use of discriminatory testing procedures is a decades-old problem. Indeed, this litigation is not even the first time that the City has been brought to federal court to defend its entry-level firefighter examination against charges of racial discrimination. In 1973, Judge Edward Weinfeld in the Southern District of New York held that the City's written and physical examinations for entry-level firefighters violated the Equal Protection Clause because of their discriminatory impact on black and Hispanic applicants. See Vulcan Soc'y of New York City Fire Dep't, Inc. v. Civil Serv. Comm'n, 360 F. Supp. 1265, 1269, affirmed in relevant part by 490 F.2d 387 (2d Cir. 1973). Judge Weinfeld imposed hiring quotas and ordered the creation of a new test. Unfortunately, the gains of that litigation were limited, in both their magnitude and duration.

According to the most recent census data, black residents make up 25.6% of New York City's population and Hispanic residents make up 27% of New York City's population.*fn5 When the United States filed this case in 2007, black and Hispanic firefighters comprised just 3.4% and 6.7%, respectively, of all firefighters in New York City.*fn6 More concretely, in a city of over eight million people, and out of a force of 8,998 firefighters, there were only 303 black firefighters and 605 Hispanic firefighters. These numbers stand in stark contrast to other large cities in this country, where minority firefighters are represented in significantly higher percentages.*fn7 The Fire Department is also significantly less diverse than the City's other uniformed services. For example in 2001, the proportional representation of blacks was over four times greater in the Police Department, over six times greater in the Sanitation Department, and over sixteen times greater in the Department of Correctional Services. (See Disparate Treatment Opinion at 18.)

2. The Court's Findings

Plaintiffs seek to enforce the right of black and Hispanic candidates to be treated fairly in Fire Department hiring. They challenged the City's use of two written examinations, Exam 7029 and Exam 2043, which the City used between 1999 and 2008 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 constituted disparate-impact discrimination in violation of Title VII of the Civil Rights Act of 1964. The court found that the City had improperly constructed its entry-level exams and that the exams did not screen for either the abilities that they purported to test, or for abilities that were important to the job of firefighter. (Disparate Impact Opinion at 35-89.) Moreover, the City failed to show that an applicant's success on the exams corresponded to future job performance. (Id. at 89-91.)

In January 2010, this court held that the City's hiring practices constituted intentional discrimination in violation of Title VII and the Fourteenth Amendment. At the time, the court noted the compelling evidence that intentional discrimination was the City's "standard operating procedure." (Disparate Treatment Opinion at 25 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 366 (1977)).) The court also noted that, although Judge Weinfeld's 1973 ruling "informed the City that what it was doing with respect to firefighter hiring was not merely bad policy or a disfavored business practice," but "illegal conduct," (id. at 52-53) the City's ...


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