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United States v. City of New York

United States District Court, E.D. New York

October 26, 2012

UNITED STATES of America, Plaintiff,
The CITY OF NEW YORK, Defendant. and The Vulcan Society, Inc., for itself and on behalf of its members, Jamel Nicholson, and Rusebell Wilson, individually and on behalf of 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 Nuñez and Kevin Simpkins, individually and on behalf of a subclass of all other delayed-hire victims similarly situated, Plaintiff-Intervenors,

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[Copyrighted Material Omitted]

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Elliot M. Schachner, Michael J. Goldberger, United States Attorneys Office, David Michael Eskew, United States Attorney's Office, Brooklyn, NY, Eric Bachman, Allan K. Townsend, Barbara A. Schwabauer, Meredith L. Burrell, United States Department of Justice, Sharon Seeley, Jennifer Swedish, Kathryn Ladewski, Washington, DC, for Plaintiff.

Richard A. Levy, Allyson L. Belovin, Dana E. Lossia, Robert H. Stroup, Levy Ratner P.C., Beth A. Kaswan, Judith S. Scolnick, Scott and Scott, LLP, Leon Friedman, Offices of Leon Friedman, Shayana Devendra Kadidal, Darius Charney, Ghita Schwarz, New York, NY, for Plaintiff-Intervenors.

Georgia Mary Pestana, Kathleen Marie Comfrey, Office of the Corporation Counsel, William S.J. Fraenkel, Corporation Counsel of the City of NY, Edward Lee Sample, II, Yuval Rubinstein, New York City Law Department, James Lemonedes, NYC Office of Corporation Counsel, Kami Zumbach Barker, NYC Law Department, Patricia B. Miller, NYC Corporation Counsel,

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Vivien V. Ranada, The City of New York Law Department, New York, NY, for Defendant.



This Memorandum and Order addresses objections to the court's Proposed Relief Order, made through written submissions and a four-day Fairness Hearing in accordance with the remedial procedures of Title VII and the court's previous orders. The court will assume familiarity with the background and facts of this case.[1]

The objections process was held so that nonparties potentially affected by the Proposed Relief Order could voice their concerns about the proposed relief. Unfortunately, the overwhelming majority of the objectors used the process to express displeasure with the court's liability rulings, malign the court for daring to interfere with the culture of the FDNY, and make the utterly baseless suggestion that those individuals who receive priority hiring relief will be unqualified to be firefighters. Most disturbingly, several FDNY supervisors brazenly informed the court that they will not welcome priority hires into their ranks, and will lack respect for priority hires because they do not believe they deserve to be firefighters. These comments reinforce the court's concern that some personnel within the FDNY will resist or refuse to comply with the specific terms and spirit of the relief orders. The court will not hesitate to exercise its equitable authority to enforce all of its orders.

The substantive objections addressing issues relevant to the proposed relief were taken seriously by the court and are discussed herein. The court has considered all of the objections and ultimately concludes that none of them merit altering the relief set forth in the Proposed Relief Order. Accordingly, contemporaneously with this Memorandum and Order, the court will enter a separate Final Relief Order providing for back pay, priority hiring, retroactive seniority, and limited forms of compensatory damages for noneconomic harm to eligible individuals who can demonstrate that they were victims of the City's discrimination.


After issuing rulings that the City was liable for disparate impact and disparate treatment under Title VII [2] ( see Dkts. 294, 385), the court proceeded to the remedial phase of the case and issued several rulings defining the scope of individual relief that will be available and the eligibility criteria for an award of relief ( see Dkts. 390, 825, 861, 888). Under this framework, the court will award individual relief to individuals who the court determines, through the claims process for individual relief, were victims of the City's discriminatory practices.

The court issued a Proposed Relief Order on July 10, 2012. (Proposed Relief Order (Dkt. 921).) The Proposed Relief Order provided for the submission of written objections and for a Fairness Hearing pursuant to Section 703(n) of Title VII, 42 U.S.C. § 2000e-2(n). The parties agreed upon notice documents and sent them to

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all potential claimants and interested third parties. ( See Mem. & Order re Proposed Notice Docs. (Dkt. 907).) Objectors submitted 2,625 timely written objections. ( See United States Mem. in Supp. of Final Relief Order (Dkt. 978).) The court held a four-day Fairness Hearing to allow objectors to address the court in person. (Dkts. 1000-03.) In addition, the court entertained submissions from the parties on their responses and arguments relating to the objections. ( See United States Mem. in Supp. of Final Relief Order; Pl.-Int. Mem. in Supp. of Final Relief Order (Dkt. 979); Def. Mem. in Resp. to Final Relief Order (Dkt. 993).) The court ordered further briefing on two issues of concern. ( See Oct. 5, 2012, Supp. Briefing Order; Oct. 18, 2012, Supp. Briefing Order.)


Generally, a person cannot be deprived of his or her rights by a proceeding to which he or she is not a party. Briscoe v. City of New Haven, 654 F.3d 200, 204 (2d Cir.2011) (citing Martin v. Wilks, 490 U.S. 755, 759, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989)). In order to ensure the finality of Title VII dispositions, however, Congress enacted 42 U.S.C. § 2000e-2(n) to " create[ ] a way by which litigants to a Title VII suit can bind nonparties who might otherwise stay on the sidelines [of the lawsuit]." Id. (citing 42 U.S.C. § 2000e-2(n)). Under this statutory provision, an employment practice ordered by a court to remedy a Title VII violation that " implements and is within the scope of a Title VII litigated or consent judgment or order may not be challenged by a person who had actual notice of the proposed judgment or order and a reasonable opportunity to present objections to such judgment or order by a future date certain." Id. at 205 (citations omitted). This framework " protect[s] valid decrees from subsequent attack by individuals who were fully apprised of their interest in the litigation and given an opportunity to participate, but who declined that opportunity." Id. (quoting 137 Cong. Rec. 29,039 (1991)). The statute's requirements may be satisfied through a formal notice and objections process. Id.

In this case, individuals affected by the Proposed Relief Order received notice via first class U.S. mail and/or email and had approximately one month to submit a completed objection form.[3] (Order re Notice (Dkt. 917) at 2-3.) Every individual who filed a written objection and indicated a desire to speak at the Fairness Hearing received an additional notice of the hearing. ( See Sept. 20, 2012, Minute Entry.)

After issuing the Proposed Relief Order, the court issued several Orders regarding individual relief.[4] These Orders were thus

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not addressed by the nonparties' objections. However, these Orders were directed only to specific aspects of the claims process and the types of damages to which certain individual claimants may be entitled. They do not alter the impact of the Proposed Relief Order on nonparties to this suit but merely further define interactions between parties to this suit. Thus, the Orders, and the subsequent changes to the Proposed Relief Order to incorporate the Orders into the Final Relief Order, did not need to be subject to objections by nonparties. The Final Relief Order will be different from the Proposed Relief Order only in that it incorporates the court's subsequent Orders.

The process undertaken by the parties and the court is sufficient to satisfy 42 U.S.C. § 2000e-2(n)'s requirements for notice and a reasonable opportunity to object. Therefore, the Final Relief Order may not be challenged by any nonparty who ...

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