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United States of America v. the City of New York

December 8, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
-AND- THE VULCAN SOCIETY, INC., FOR ITSELF AND ON BEHALF OF ITS MEMBERS, JAMEL NICHOLSON, AND , RUSEBELL WILSON, INDIVIDUALLY AND ON BEHALF OF PERMANENT INJUNCTION, & A SUBCLASS OF ALL OTHER VICTIMS SIMILARLY SITUATED
SEEKING CLASSWIDE INJUNCTIVE RELIEF, ROGER GREGG, MARCUS HAYWOOD, AND KEVIN WALKER, INDIVIDUALLY AND ON BEHALF OF A SUBCLASS OF ALL OTHER NON-HIRE VICTIMS SIMILARLY SITUATED; AND CANDIDO NUNEZ AND KEVIN SIMPKINS, INDIVIDUALLY AND ON BEHALF OF A SUBCLASS OF ALL OTHER DELAYED-HIRE VICTIMS SIMILARLY SITUATED, PLAINTIFF-INTERVENORS,
v.
THE CITY OF NEW YORK, DEFENDANT.



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

REMEDIAL ORDER AND PARTIAL JUDGMENT ORDER APPOINTING COURT MONITOR

In August 2011, the court held a bench trial on the need for, and the scope of, injunctive relief in this case. As the court explained in its October 5, 2011 Memorandum and Order (Mem. and Order (Docket Entry # 743)), the court's findings of fact from that trial (Docket Entry # 741) necessitate this Remedial Order and Partial Judgment, Permanent Injunction, and Order Appointing Court Monitor ("Remedial Order"). Further background on this case can be found in the court's decisions on disparate impact and disparate treatment liability. (Docket Entries ## 294 & 385.) In the court's October 5, 2011 Memorandum and Order, the court informed the parties of its intention to issue a remedial order and gave the parties the opportunity to comment on the terms of the proposed order. (Mem. and Order at 1.) The parties' comments have been filed (see Docket Entries ## 744 & 745), and, having given those comments due consideration, the court issues the following Remedial Order.

IT IS HEREBY ORDERED THAT:

I. DEFINITIONS

1. The following definitions apply to this Order.

2. "This Order" refers to these Definitions (Part I), all terms of the Permanent Injunction the court imposes on the City of New York (Part II), all terms of the Order Appointing Court Monitor (Part III), the terms of the court's Retention of Jurisdiction (Part IV), and all terms of the assessment of Costs and Fees (Part V).

3. "The Parties" are: the United States of America, by its counsel the United States Department of Justice; The Vulcan Society, Inc. and the Injunctive Relief Subclass (through its appointed individual representatives Jamel Nicholson, and Rusebell Wilson), by their counsel Levy Ratner, P.C., Scott Scott LLP, and the Center for Constitutional Rights; and the City of New York, by its counsel the Corporation Counsel of the City of New York.

4. "City of New York" and "the City" refer to all commissions, agencies, offices, bureaus, departments, divisions, elected and appointed officials, managers, employees, volunteers, paid and unpaid interns, independent contractors, and other agents of the City of New York, any person or entity over which any of the foregoing exercise direct or indirect control because of their affiliation with the City of New York, and any person or entity acting in concert or participation with any of the foregoing, and includes, without limitation, the following agencies of the City of New York:

(a) "FDNY" refers to the Fire Department of the City of New York;

(b) "ORD" refers to the Office of Recruitment and Diversity of the FDNY;

(c) "EEO Office" refers to the Equal Employment Opportunity Office of the FDNY;

(d) "BITS" refers to the Bureau of Investigations and Trials of the FDNY;

(e) "CID" refers to the Candidate Investigation Division of the FDNY;

(f) "PRB" refers to the Personnel Review Board of the FDNY;

(g) "DCAS" refers to the Department of Citywide Administrative Services of the City of New York;

(h) "EEPC" refers to the Equal Employment Practices Commission of the City of New York; and

(i) "Executive Office of the Mayor" refers to the Mayor of the City of New York, his deputy mayors, senior advisors, and the employees and agents of the City of New York employed or retained by the City of New York to assist the foregoing in the performance of their duties.

5. "Document" refers broadly to the full range of materials and information specified in Federal Rule of Civil Procedure 34 without regard to the medium in which it is kept or stored.

6. "Court Monitor" and "Monitor" refer to the person appointed by the court in Part III of this Order to oversee the City's compliance with the terms of this Order, and any persons retained or employed by the Monitor to carry out the Monitor's assigned duties.

7. "Special Master" refers to Special Master Mary Jo White, who was appointed by the court on June 1, 2010 (Docket Entry # 448), and whose responsibilities include oversight of the development and administration of Exam 2000. Among other things, the Special Master is monitoring the Parties' progress in connection with the following six phases or milestones in the development and administration of Exam 2000: (i) job analysis; (ii) test development, which encompasses test design, development of exam content, content validation and pilot testing, criterion-related and construct validation, and development of various test forms and equivalency studies; (iii) test administration; (iv) analysis and scoring; (v) computation of the final test results; and (vi) preparation of the final technical report. (See, e.g., Special Master's Report No. 7 (Docket Entry # 739) (filed September 29, 2011).) The Special Master's oversight over Exam 2000 shall end upon completion of these six phases or milestones. The Monitor shall thereafter have oversight over the FDNY's use of Exam 2000 as well as over the development of subsequent examinations to screen entry-level firefighter candidates.

8. "Days" refers to calendar days unless otherwise specified clearly in the context of a particular provision of this Order. If any deadline referenced in this Order should fall on a Saturday, Sunday, or legal holiday, the deadline shall be moved to the next day that is not a Saturday, Sunday, or legal holiday.

9. "Entry-level firefighter" refers to a person in the entry-level uniformed position in the FDNY regardless of whether the person may be called a "recruit," "trainee," "probie" or other title until the individual has completed academy training and/or a probationary period. It does not refer to a person selected for promotion to the position of Firefighter from the position of Emergency Medical Technician or Paramedic through the City of New York's open-competitive promotional examination.

10. "Firefighter candidate" refers to any person who applies to participate in any step of the process for the selection of entry-level firefighters administered by the City of New York to hire entry-level firefighters, until that person is formally appointed an entry-level firefighter.

11. "Process for the selection of entry-level firefighters," "entry-level firefighter selection process," "entry-level firefighter hiring process," and similar terms, refer to any and all steps taken by the City of New York to hire entry-level firefighters including, without limitation: developing or validating a written or computer based-examination to screen entry-level firefighter candidates; recruiting people to be entry-level firefighter candidates; issuing a Notice of Examination to open an application period for any person to apply to take any examination to be hired by the City of New York as an entry-level firefighter; administering a written or computer-based examination to entry-level firefighter candidates; assessing an entry-level firefighter candidate's physical fitness or ability; determining that an entry-level firefighter candidate has passed or failed any examination or assessment at any stage of his or her candidacy; determining to award or not award any credits (e.g., New York City residency credit) to an entry-level firefighter candidate; ranking or not ranking an entry-level firefighter candidate on any civil service hiring list; certifying a civil service list of entry-level firefighter candidates for hiring; determining to begin investigating any entry-level firefighter candidate's background or eligibility to be hired as an entry-level firefighter; the process of investigating an entry-level firefighter candidate's background and eligibility to be hired as an entry-level firefighter; determining to refer a candidate to any person or body for additional consideration of his or her character or fitness to be a an entry-level firefighter, and making any recommendations concerning the outcome of that consideration; determining that an entry-level a firefighter candidate possesses or does not possess the character or fitness to be a an entry-level firefighter; administering a medical and/or psychological examination to a an entry-level firefighter candidate; determining to make an offer to hire a an entry-level firefighter candidate to the position of entry-level firefighter; determining not to hire a an entry-level firefighter candidate for any reason, including that the an entry-level firefighter candidate is ineligible for hiring, failed to report to or cooperate with any step in the an entry-level firefighter selection process, does not possess the character or fitness necessary to be a an entry-level firefighter, is medically or psychologically unfit to be hired, or for any other reason.

12. "EEO" refers to "equal employment opportunity," i.e., the opportunity to obtain employment without discrimination because of race, color, religion, sex, national origin, age, or disability.

13. "EEO Laws" refers to laws which protect an employee's or employment candidate's rights to equal employment opportunities, including, without limitation, and as interpreted by federal and state courts: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.; New York State Human Rights Law, New York Executive Law §§ 290 et seq.; and New York City Human Rights Law, Administrative Code §§ 8-101 et seq.

II. PERMANENT INJUNCTION

A. General Terms

14. The City of New York shall not use, in any way, Firefighter Exam 7029, Firefighter Exam 2043, or Firefighter Exam 6019 as part of any process for the selection of entry-level firefighters.*fn1

15. The City of New York shall not use as part of any entry-level firefighter selection process, any examination that in any way results in a disparate impact upon black or Hispanic applicants and is not job related for the position of entry-level firefighter and consistent with business necessity, or does not otherwise meet the requirements of federal, state, and City EEO laws.

16. The City of New York shall not take any step in any process for the selection of entry-level firefighters, or use any examination as part of such process, without first obtaining the approval of the Court Monitor (the "Monitor") through the processes specified by the Monitor, except that with regard to steps set out in Paragraph 7 above, over which the Special Master continues to have oversight, and for which the City of New York shall obtain the approval of the Special Master.

17. The City of New York shall not retaliate against or in any way adversely affect the terms or conditions of employment of any person because he or she has complained of discrimination against blacks or Hispanics on the basis of their race or national origin in the selection and hiring of entry-level firefighters, or has participated in the investigation or litigation of any claim or allegation of such discrimination, or has sought or obtained relief from the court in this case

18. The City of New York shall not discriminate on the basis of race or national origin against black or Hispanic firefighter candidates in the development or implementation of any process for the selection of entry-level firefighters.

19. The City of New York shall, with reasonable diligence, take all steps necessary to eliminate the vestiges of its pattern and practice of intentional discrimination against black firefighter candidates, to remove all barriers to the elimination of these vestiges of discrimination, and to end all policies and practices that perpetuate the effects of the City's past intentional discrimination against black firefighter candidates. The City of New York shall also, with reasonable diligence, take all steps necessary to eliminate all policies and procedures that have a disparate impact on black and Hispanic firefighter candidates and all practices that perpetuate the effects of said disparate impact.

20. The Parties shall timely comply with the instructions of the Court Monitor as provided in this Order.

21. Except as set forth in Paragraphs 29, 35, 45, and 50 of this Order, any submission that this Order requires the City to file with the court shall be signed by the Fire Commissioner and the Corporation Counsel, who shall certify that the Mayor of the City of New York has reviewed and approved the submission.

B. Specific Remedial Measures

Firefighter Test Development and Administration

22. The Court Monitor shall adopt a schedule which requires the City of New York to notify the Monitor and the Parties in writing before commencing any step in a process for the selection of entry-level firefighters, except for steps set out in Paragraph 7 above, over which the Special Master continues to have oversight.

23. The Court Monitor may require the City to disclose any information relating to any step in any process for the selection of entry-level firefighters before allowing the City to proceed to any step in the process. The Court Monitor may require the City to establish that it has satisfied conditions specified by the Monitor, except that with regard to steps set out in Paragraph 7 above, over which the Special Master continues to have oversight, and for which the City of New York shall obtain the approval of the Special Master.

24. At least 90 days prior to the establishment of any new eligible civil service list for the entry-level firefighter position, the City shall notify the Court Monitor, the United States, and the Injunctive Relief Subclass in writing that it intends to establish a new eligible list and shall provide to the Monitor, the United States, and the Injunctive Relief Subclass a detailed description of each step in the selection process from which the list was developed and of the manner in which the City intends to use the eligible list to make appointments. In addition, the City shall state in writing, separately by race (White, Black, Hispanic, American Indian/Alaskan Native, or Asian/Pacific Islander), the number of applicants who were eligible to proceed to each step in the process leading up to the establishment of the eligible list, the number of applicants to whom each step was administered, and the number of applicants who passed the step or were eligible to continue in the selection process.

Firefighter Candidate Recruitment

25. The City of New York, specifically ORD and DCAS, shall, in consultation with the Court Monitor, the United States, and the Injunctive Relief Subclass, design an optional survey which the City of New York shall administer to all individuals who take Exam 2000 at the time they take Exam 2000. The purposes of the survey shall be to determine the effectiveness of ORD's various recruitment activities and strategies, to determine the reasons why firefighter candidates chose to apply to become entry-level firefighters, to determine how many firefighter candidates have friends or family members in the FDNY, and to obtain any other useful information. Each survey form provided to the firefighter candidates shall be pre-marked with the firefighter candidate's unique applicant identification number. The survey forms shall prominently state that survey responses shall not be used in any way by the City of New York to make hiring decisions.

26. The City of New York shall,no later than January 15, 2012, retain an independent recruitment consultant, whose selection shall be subject to the approval of the Court Monitor. The independent recruitment consultant shall submit a final report that:

(a) identifies and evaluates the effectiveness of ORD's various recruitment activities at recruiting black and Hispanic firefighter candidates against the costs of those activities;

(b) identifies best practices for the recruitment of black and Hispanic employees generally and firefighter candidates in particular, both nationally and in New York City in particular;

(c) recommends tactics ORD can use to improve the effectiveness and efficiency with which it recruits black and Hispanic firefighter candidates;

(d) recommends changes to ORD's long-term black and Hispanic firefighter candidate recruitment strategy and intensive pre-exam recruitment strategy;

(e) recommends measureable short-term and long-term goals for the recruitment of black and Hispanic entry-level firefighter candidates; and

(f) in light of these findings and recommendations, identifies the resources needed by ORD to meet its goals, and recommends minimum and ideal budgets for ORD for those fiscal years in which no firefighter examination will be administered and separate minimum and ideal budgets for ORD for fiscal years in which the City of New York will administer a firefighter examination.

27. The independent recruitment consultant, the City of New York, and the Court Monitor shall cooperatively develop a plan for the consultant's research subject to the approval of the Court Monitor. At the discretion of the Court Monitor, the United States and the Injunctive Relief Subclass may meet with the Court Monitor, the City of New York, and the consultant to recommend areas of inquiry for the consultant's research. The City shall fully cooperate with the consultant's research. The consultant shall regularly update the City and the Court Monitor on the scope and progress of the consultant's research in a written report or other format to be determined by the Court Monitor and shall inform the Court Monitor, on a schedule to be set by the Court Monitor, if the consultant has any difficulties acquiring information needed to complete ...


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