Court of Appeals reverses Brooklyn judge’s ruling in FDNY discrimination case

May 15, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

U.S. District Judge Nicholas Garaufis, EDNY. Eagle file photo by Jennifer MacFarlane

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A federal appeals court partially overruled a Brooklyn lower court’s decision in a case involving discriminatory hiring practices within the New York City Fire Department.

The lawsuit, U.S.A. et al vs. The City of New York, et al., was first brought in 2007 by the United States Justice Department challenging two written FDNY exams from 1999 and 2002. The original allegation was that the exams resulted in a disparate impact on the amount of blacks and Hispanics applying to the FDNY. This charge was expanded to include a claim that FDNY hiring practices intentionally discriminated against blacks and Hispanics.

In 2011, Brooklyn Federal Judge Nicholas Garaufis found racial discrimination in the FDNY’s written entrance exam as well as other FDNY hiring practices. To ensure that the FDNY “not discriminate on the basis of race against black or Hispanic firefighter candidates in the development or implementation of any process for the selection of entry-level firefighters,” Garaufis ordered a court monitor to oversee and ensure that the city and the FDNY takes “all steps necessary to eliminate the vestiges of its pattern and practice of 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 have the effect of perpetuating the effects of the City’s discrimination against black firefighter candidates.”

The court monitor was ordered to remain in place for 10 years.

In addition to the requirement that a court monitor be set in place, Garaufis also found that the members of the impacted class were entitled to $125,553,442 in lost wages.

In January 2012, the city filed an appeal in the 2nd Circuit Court of Appeals seeking to reverse the finding of intentional discrimination and reassign the case to a different Brooklyn federal court judge for trial. After oral arguments in June 2012, the court issued a ruling on Tuesday deemed by both sides as a victory.

During the June arguments, the city asserted the need to reassign the case to a new judge, arguing that Garaufis had a “bias” against the FDNY. The appeals court noted while Garaufis “expressed several criticisms of the FDNY,” there was no reason to reassign the entire case to another judge.

The appeals court did find, however, that Garaufis erred in assessing evidence credibility as it pertained to the disparate impact of the FDNY’s discriminatory hiring practices. Disparate impact is the legal doctrine that employment practices may be considered discriminatory if they have an unjustified and adversely disproportionate impact on a particular minority group. The appeals court sent the issue of disparate impact back to the lower federal court to be re-argued at trial in front of a judge other than Garaufis.

“We are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case,” New York City Corporation Counsel Michael A. Cardozo said in a statement.

In finding error in Garaufis’ ruling that the FDNY’s hiring practices caused a disparate impact on black and Hispanic firefighter hiring, the appeals court opens the door for damages to be revisited. As Cardozo explained on a press conference call, the issue as to whether or not the FDNY is liable for discriminatory hiring practices has to be re-litigated, and the result of that litigation will affect the damage award.

“Because of the reversal of [Garaufis’] intentional discrimination ruling, any alleged damages claimed to have come from any alleged intentional discrimination cannot be discovered until there is a trial to determine whether or not intentional discrimination took place.”

The appeals court also looked at use of a court monitor and found that while Garaufis was “entirely warranted in ordering a monitor to oversee the FDNY’s long-awaited progress toward ending discrimination,” the monitor’s assignment was reduced from 10 years to five years.

“The city wanted the monitor removed completely,” said Dana Lossia, partner at Levy Ratner, the law firm that argued on behalf of the plaintiffs. “The court monitor will oversee the FDNY’s hiring practices until 2017. That type of order is only issued and affirmed if there is a true serious issue.”

The city still deems the reduction of the court monitor as a victory. “The city regained control of the FDNY,” said Cardozo. “Fire Commissioner Salvatore J. Cassano is going to run the FDNY and not a monitor.”

The cutback of the monitor’s time is not seen as a subtle change for the city. “We can take steps towards diversity without having to get approval every step of the way,” Cardozo asserted. Cardozo cited the increased amount of female and minority EMT and paramedic graduates to walk the stage in Friday’s graduation ceremony.

“The roughly 40 percent women and minorities graduates highlights the incredible diversity efforts that the FDNY has been taking,” Cardozo noted.

Opposing counsel viewed these statistics as an inaccurate portrayal of increased diversity within the firefighter ranks of the FDNY. “There has always been more diversity in the EMT groups,” Lossia told the Brooklyn Daily Eagle. “EMTs and paramedics do not have to take a civil service test as do firefighters. The city cannot really congratulate itself by saying that the EMT and paramedics class is the most diverse in years.” Lossia further asserted that it was the efforts by the plaintiffs and the lawsuit that contributed to the FDNY’s diversity efforts.

“The only reason things are different now is because of the lawsuit. Any change that has happened is not because of the city’s own good will.”

The $125,553,442 loss wage award was not affected by the appeals court decision. The city, opposing counsel, and appointed special masters are reviewing each individual claim of loss wages and will issue appropriate amounts mitigated against other earnings that the plaintiffs may have received in the interim. Further Garaufis’ finding that the FDNY written exams were invalid and the approval of new written exams stands.