United States of America v. City of New York

Filing 1011

MEMORANDUM AND ORDER addressing objections to the court's Proposed Relief Order and directing the entry of the Final Relief Order. Ordered by Judge Nicholas G. Garaufis on 10/26/2012. (White, Sarah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
MEMORANDUM & ORDER

Plaintiff,
-and-

07-CV-2067 (NGG) (RLM)

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,
-againstTHE CITY OF NEW YORK,
Defendant.
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NICHOLAS G. GARAUFIS, United States District Judge.
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

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The factual and procedural background of this case is extensive. A full recount can be found in the court’s
previous rulings, most recently in the Memorandum and Order issued after the court’s August 2011 bench trial on
the need for and scope of affirmative injunctive relief. (Mem. & Order re Inj. Relief (Dkt. 743).)

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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.
I.

BACKGROUND
After issuing rulings that the City was liable for disparate impact and disparate treatment

under Title VII2 (see Dkts. 294, 385), the court proceeded to the remedial phase of the case and

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The City has appealed only the court’s decision regarding disparate treatment liability, and the appeal is
currently pending in the United States Court of Appeals for the Second Circuit.

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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 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.)
II.

ADEQUACY OF THE FAIRNESS PROCEEDINGS
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 (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

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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.)

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The court ordered that notice be sent via first-class U.S. mail to: (1) each black and Hispanic applicant who
took Written Exam 7029 and/or Written Exam 2043; (2) each applicant who took Written Exam 2000 and/or Written
Exam 2500 but who had not provided the City with an email address; (3) the Uniformed Firefighters Association
and the Uniformed Fire Officers Association; and (4) the United Women Firefighters. The court ordered that notice
be sent via email to each applicant who took Written Exam 2000 and/or Written Exam 2500 and provided the City
with an email address. In addition, the court ordered that notice be distributed to current firefighters of the FDNY
through a Department Order to be read at every roll call for four consecutive days. (See Order re Notice at 2-3;
Consent Mot. to Amend (Dkt. 927).)

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After issuing the Proposed Relief Order, the court issued several Orders regarding
individual relief.4 These Orders were thus 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 received the
notice discussed above. See 42 U.S.C. § 2000e-2(n).
III.

STANDARD OF REVIEW
The court must now determine the standard for reviewing the objections of nonparties

affected by the relief who participated in the objections process. The United States suggests that
because Title VII relief typically involves a consent decree or settlement agreement, current
precedent provides little guidance for how to review objections to court-ordered relief. (United

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These Orders are: (1) a Memorandum and Order concluding that the City shall have, within certain
parameters, the opportunity to present mitigating evidence of a claimant’s damages (Mem. & Order re Mitigating
Ev. (Dkt. 952)); (2) an Order adopting in part the Report and Recommendation of the Special Masters regarding the
claims process (Sept. 7, 2012, Order); (3) a Memorandum and Order determining that black victims of the City’s
discriminatory entry-level firefighter exams may be entitled to compensatory damages for noneconomic harms only
if they can establish, on an individual basis, one or more specific forms of compensatory damages previously
recognized at the common law (Mem. & Order re Noneconomic Damages (Dkt. 974)); and (4) a Memorandum and
Order approving the City’s use of Exam 2000 to create a list of eligible candidates for the position of entry-level
firefighter (Mem. & Order Approving Exam 2000 (Dkt. 986)).  

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States Mem. in Supp. of Final Relief Order at 8-9.) Joined by Plaintiff-Intervenors, the United
States suggests that the court must ask only whether the challenged relief is authorized by law.
(Id.) The City does not address the issue. (See Def. Mem. in Resp. to Final Relief Order.)
Having undertaken its own review, the court is also unaware of any precedent that
specifically addressed the standard a court should use to review objections to proposed
judicially-ordered relief. In reviewing objections to a consent decree or settlement agreement,
courts have analyzed whether the proposed settlements are fair, reasonable, and legal, and
whether any of the objections has sufficient merit to overcome the presumption of validity
accorded to the relief agreement. See, e.g., United States v. N.Y. City Bd. of Educ., 85 F. Supp.
2d 130, 157 (E.D.N.Y. 2000) (vacated and remanded on other grounds by Brennan v. N.Y. City
Bd. of Educ., 260 F.3d 123 (2d Cir. 2001)); United States v. New Jersey, Nos. 88-CV-5087
(WGB), 88-CV-4080 (MTB), 87-CV-2331 (HAA), 1995 WL 1943013, at *9 (D.N.J. Mar. 13,
1995). In a Title VII case decided before enactment of § 2000e-2(n), the Second Circuit
approved a district court’s analysis of a settlement agreement where the district court reviewed
objections and ultimately asked whether the proposed remedies were (1) “substantially related to
the objective of eliminating the alleged instance of discrimination,” and (2) did not
“unnecessarily trammel the interests of affected third parties.” Kirkland v. N. Y. State Dep’t of
Corr. Servs., 711 F.2d 1117, 1132 (2d Cir. 1983).
Although this case does not involve a settlement agreement, the court finds it appropriate
to apply the Kirkland standard because it directly addresses the purpose of the fairness
proceedings. The court’s prior orders have already established that the first part of this standard
has been satisfied. Title VII provides the court with broad powers to remedy past discrimination.
Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 770 (1976). After a finding of liability for

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employment discrimination under Title VII, there is a presumption that back pay, priority hiring,
and retroactive seniority are the proper forms of relief to remedy past employment
discrimination. Wrenn v. Sec’y, Dep’t of Veterans Affairs, 918 F.2d 1073, 1076 (2d Cir. 1990).
Accordingly, because there has been a finding of liability, the Proposed Relief Order enacts the
presumptively appropriate relief to remedy the harms in this case.
Therefore, the court must review the objections to determine whether the proposed relief
unnecessarily trammels on the interests or rights of affected nonparties. As discussed below, the
court concludes that under this standard none of the objections merit any change to the Proposed
Relief Order.
IV.

APPLICATION
The objections fall into several categories. The United States submitted a memorandum

of law in support of the Final Relief Order, summarizing and addressing the various issues raised
in the written objections.5 (United States Mem. in Supp. of Final Relief Order (Dkt. 978).)
Plaintiff-Intervenors submitted a memorandum of law joining in the United States’ submission
and addressing objections to the grant of compensatory damages for certain noneconomic harms
and the proposed eligibility criteria for relief. (Pl.-Int. Mem. in Supp. of Final Relief Order.)
The City filed a response reasserting objections raised in its opposition to summary judgment
with regard to damages and opposing arguments raised in Plaintiff-Intervenors’ submission.
(Def. Mem. in Resp. to Final Relief Order (Dkt. 992).)
The court considered all of the written objections, the Fairness Hearing testimony, and
the parties’ submissions, and ordered further briefing on two issues: (1) the use of retroactive

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The United States’ submission in support of the Final Relief Order provides a thorough breakdown of the
various categories of objections raised in the written submissions and indices to the objections arranged by topic,
number, and last name of the objector. (See United States Mem. in Supp. of Final Relief Order (Dkt. 978), Exs. 129.)

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seniority in the promotions process (Oct. 5, 2012, Supp. Briefing Order), and (2) the objections
of individuals who claim that they are excluded from relief under the eligibility criteria but
should be considered for relief because of their unique circumstances (Oct. 18, 2012, Supp.
Briefing Order). Ultimately, the court concludes that none of the objections warrant any change
to the Final Relief Order.
A.

General Objections to the Court’s Rulings

Most of the objections raise arguments that are general in nature and can be categorized
as follows: (1) the court’s liability rulings are wrong; (2) the proposed relief is unlawful;
(3) firefighters have difficult jobs and make tremendous sacrifices, and thus the court should not
interfere with their traditional hiring and promotions practices.
Although the notices to potential objectors explained the limited purposes of the
objections process and the United States read a statement to the same effect at the beginning of
each day of the Fairness Hearing, many of the objectors merely voiced disagreement with the
court’s prior rulings. The court has already ruled on the City’s liability for disparate impact,
disparate treatment, and on the necessity for relief. (See Dkts. 294, 385 (regarding liability);
Dkts. 390, 743, 825, 861, 888 (regarding the need for, and parameters of, individual relief).)
Because these issues were not the subject of the objections period, objections relating to these
issues need not be addressed.
Numerous objections asserted that the awards of back pay, priority hiring, and retroactive
seniority are unlawful. These objectors argued that granting relief based on race constitutes
discrimination and thus violates Title VII, the Constitution of the United States, and various
other laws. It is the purpose of Title VII, however, to make victims whole for injuries suffered
on account of unlawful employment discrimination. Ablemarle Paper Co. v. Moody, 422 U.S.

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405, 418 (1975). Accordingly, this court has “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). It has “not merely the power but the duty” to “bar like discrimination in
the future.” Ablemarle Paper Co., 422 U.S. at 418 (quoting Louisiana v. United States, 380 U.S.
145, 154 (1965)). To remedy violations of Title VII, there is a presumption that back pay,
retroactive seniority, and priority hiring are the proper relief to make the victims whole. Wrenn,
918 F.2d at 1076. Thus, the Final Relief Order is not only authorized by Title VII, but is
necessary to fulfill the court’s duty to remedy the City’s proven past wrongs.
In addition, the Proposed Relief Order does not draw distinctions on the basis of race or
institute quotas. It draws distinctions based on an individual’s status as a victim of the City’s
discrimination. Such distinctions are lawful under well-established case law. See Teamsters,
431 U.S. at 375 n.61 (explaining that allowing victims of past discrimination to participate in a
remedy is not the type of preference prohibited by Title VII); Acha v. Beame, 531 F.2d 648, 656
(2d Cir. 1976) (holding that relief granted to individuals who have been discriminated against is
a remedial device within the court’s power, not an illegal preference).
The overwhelming majority of the objections touched on the difficulty of being a
firefighter, and, in particular, the devotion and sacrifices of those in the FDNY. These objectors
expressed outrage that the court would interfere with the longstanding practices of such an
esteemed institution. An institution’s desire to maintain its traditions, however, is not an
acceptable defense to claims of employment discrimination under Title VII—in fact, it is
precisely the problem Title VII was enacted to address.
The court is mindful of the important role firefighters play in keeping New York City
safe and the bravery they display in doing so. However, the implementation of relief in this case

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is necessary to remedy the City’s past discrimination—it is not a punishment to firefighters, nor
is it a statement about the value of firefighters in society. The court would shirk its obligations
under Title VII if it were to refuse to remedy past discrimination simply on the basis that the
discrimination occurred within an entity that society holds in high esteem. Therefore, such
objections do not merit any change to the Proposed Relief Order.
B.

Objections to specific forms of relief
1.

Objections to Back Pay

Some objections argued that the award of back pay is unfair because it will create a
windfall that the individual claimants do not deserve, or that the money should be used in other
ways within the FDNY. None of these objections, however, indicate that ordering back pay will
infringe on the rights of third parties, or will have any unusual adverse impact overcoming the
presumption that this relief must be granted. See Franks, 424 U.S. at 769 n.41 (explaining that
presumptive relief in Title VII cases must only be denied “on the basis of unusual adverse impact
arising from facts and circumstances that would not be generally found in Title VII cases.”)
(emphasis added).
2.

Objections to Priority Hiring

Objectors raised two categories of objections to the priority hiring provisions in the
Proposed Relief Order. Some objections argued that priority hiring is unfair to those who want
to be firefighters and will not be hired or will be delayed in hiring because the spots were filled
by priority hires. Other objections argued that priority hiring will result in unqualified
individuals joining the FDNY.
As to the first category, it is true that nonvictim individuals who took Exam 2000 and are
otherwise eligible for hire as a firefighter might have their potential hiring impacted by the

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priority hiring relief. However, under New York law “a person on an eligibility list does not
possess ‘any mandated right to appointment or any other legally protectable interest.’” Kirkland,
711 F.2d at 1134 (quoting Cassidy v. Mun. Civil Serv. Comm’n, 37 N.Y.2d 526, 529 (1975)).
Therefore, nonvictim prospective hires cannot claim that the priority hiring relief unnecessarily
infringes on any legally-protected right.
Many objectors argued that priority hiring will result in inexperienced individuals being
hired as firefighters. These objections are based on the misconception that the court will be
ordering that firefighter jobs be simply handed out to any black or Hispanic person who scored
above a 25 on one of the invalid written exams. To the contrary, individuals who claim
eligibility to receive priority hiring relief must fulfill all of the requirements to be a firefighter,
including taking and passing Exam 2000, taking and passing the Candidate Physical Ability Test
(CPAT), and meeting other lawful qualifications.6 (See R&R re Claims Process (Dkt. 963) at 10
(adopted in relevant part by the Sept. 7, 2012, Order) (detailing the hiring process of individuals
seeking priority hiring relief).)
Thus, none of the objections relating to priority hiring demonstrates that it unnecessarily
trammels on the rights of third parties or is an unreasonable means to achieve relief for the
victims.
3.

Objections to Retroactive Seniority

The overwhelming majority of the objections came from current firefighters. The
firefighters argued that the award of retroactive seniority is unfair and that it raises safety
concerns. Neither of these arguments merit any change to the award of retroactive seniority.

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The requirements a candidate must meet are: minimum age, maximum age, ability to communicate in
English, United States citizenship, no felony convictions, and no dishonorable discharges from the military. (Order
(Dkt. 825) at 53-54.)

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Many current firefighters objected that retroactive seniority is unfair to them because it
lowers their relative position in the FDNY. But such an effect is present in nearly every award
of retroactive seniority, and does not justify denying relief to the victims of past discrimination.
See United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2d Cir. 1971) (dismissing the
argument that the morale of employees who did not suffer discrimination would suffer if
seniority awards were issued to remedy employment discrimination). Indeed, “[i]f relief under
Title VII can be denied merely because the majority group of employees, who have not suffered
discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to
which the Act is directed.” Id. To the extent that current firefighters who have not been the
victims of discrimination feel that the relief in this case lowers their hopes for advancement,
“their hopes arise from an illegal system.” Id.; see also Kirkland, 711 F.2d at 1126 (“Nonminorities do not have a legally protected interest in the mere expectation of appointments which
could only be made pursuant to presumptively discriminatory employment practices.”)
Apart from this notion of unfairness, numerous objectors voiced concern that the use of
retroactive seniority in the promotions process would result in inexperienced or unqualified
individuals being promoted to leadership positions. (See, e.g., Oct. 3, 2012, Tr. at 30:13-22; Oct.
4, 2012, Tr. at 23:2-24:6, 61:2-62:1; Written Objections (United States Mem. in Supp. of Final
Relief Order, Ex. 6 at USARP_OBJ_1152-57, Ex. 8 at USARP_OBJ_1720-22, Ex. 11 at
USARP_OBJ_002645-48).) In light of these objections, the court ordered further briefing on the
use of retroactive seniority in the computation of a candidate’s position on a promotional list.
(Oct. 5, 2012, Order.)
The parties’ submissions explained that after taking a promotional exam, a candidate’s
overall score for promotional consideration is comprised equally of: (1) his or her score on the

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written promotional exam, and (2) the candidate’s seniority and job performance. (See United
States Oct. 10, 2012, Ltr. (Dkt. 997); Def. Oct. 10, 2012, Ltr. (Dkt. 998).) For the purposes of
the latter calculation, an award of retroactive seniority could improve a candidate’s position on
the promotional list by adding to the candidate’s seniority score. (Id.) The United States points
out that this would result in at most a 4.5 percent increase in a candidate’s overall score. (United
States Oct. 10, 2012, Ltr. (Dkt. 997) at 2). The court assumes that this percentage could make a
significant difference on a candidate’s position on the seniority list. Nevertheless, for the
following reasons, the court concludes that this does not merit any reconsideration of the award
of retroactive seniority.
Retroactive seniority, along with job offers and back pay, is one of the basic components
of “make whole” relief in hiring discrimination cases. See Wrenn v. Sec’y, Dep’t of Veterans
Affairs, 918 F.2d at 1076. That is why there is a presumption in favor of awarding retroactive
seniority to remedy violations of Title VII. Franks, 424 U.S. at 767-69 n.41. Such relief “may
not be denied on the abstract basis of adverse impact upon interests of other employees” but may
be denied only “on the basis of unusual adverse impact arising from facts and circumstances that
would not be generally found in Title VII cases.” Id. at 769 n.41 (emphasis added).
That is not the case here for two reasons. First, awards of retroactive seniority will give
an advantage only to candidates who meet all other qualifications for the promotions they seek
and pass the written promotional exam. Concerns that retroactive seniority would result in the
promotion of unqualified individuals are largely based on misinformation. Retroactive seniority
cannot be used to satisfy time-in-grade requirements that a firefighter must satisfy before sitting
for a promotional exam. (Mem. & Order re Retro. Seniority (Dkt. 861) at 6-7.) This means that

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a candidate must work as a firefighter for a requisite number of years, depending on the position,
and meet all other requirements in order to be eligible for the promotion he or she seeks.
Second, consideration of retroactive seniority is already a part of the City’s promotions
process. According to the New York City Code, any candidate appointed as a firefighter
between 1998 and 2006 with prior service as a member of the New York City Police
Department, Housing Authority Police, or Transit Police had his or her prior service counted for
purposes of determining promotion in the FDNY. (Pl.-Int. Ltr. re Retro. Seniority (Dkt. 1005));
see also Def. Ltr. re Retro. Seniority (Dkt. 998), Ex. 1 (Notice of Examination for several
promotional exams).) The Notice of Examination for each promotional exam lists in its terms
that prior police service will be considered as part of seniority, and also advises that “[a]ny
employee who, pursuant to court order or otherwise, has been accorded retroactive seniority by
the Department of Citywide Administrative Services in the title of Firefighter or other eligible
title shall be given appropriate credit.” (Def. Oct. 10, 2012, Ltr., Ex. 1 at 3.) Thus, the
retroactive seniority granted by the Proposed Relief Order is consistent with the City’s
procedures already in place, and places delayed-hire claimants in a similar position to firefighters
appointed before 2006 who had prior service counted in the promotions process. The court sees
no reason to treat these groups differently, given that the beneficiaries of the retroactive seniority
under the City’s procedures had no more experience as firefighters than will the recipients of
retroactive seniority under this Final Relief Order.
The aforementioned reasons demonstrate that the award of retroactive seniority will have
no unusual adverse impact on the FDNY. Therefore, objections arguing against the award do not
merit any change to the Proposed Relief Order.

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C.

Objections by Individuals Presenting Unique Factual Circumstances

Several black and Hispanic objectors who took Written Exams 2043 or 7029 and were
not hired by the FDNY raised concerns about the application of the eligibility criteria to their
individual circumstances. (See Pl.-Int. Mem. in Supp. of Final Relief Order.) These objectors
claimed, for example, that they had not appeared for physical testing or some other step in the
hiring process because they had not received notice from the City of their opportunity to advance
in the hiring process. (Id. at 3-4 (citing and summarizing written objections).) Other objectors
claimed that they had been subject to intentional discrimination by the City during the postexamination screening process. (Id.) Plaintiff-Intervenors argued that “[t]hese individual
eligibility issues should be the subject of consideration and recommendations by the claims
process Special Masters.” (Id. at 4.)
The United States and the City both briefly addressed these objections in their
submissions, opposing any change to the eligibility criteria. (United States Mem. in Supp. of
Final Relief Order at 10-13; Def. Mem. Resp. to Final Relief Order at 1.) Because these
objectors raised the concern that they were victims of the City’s discrimination but would not be
able to seek relief and the parties had only briefly addressed this issue, the court ordered further
briefing. (Oct. 18, 2012, Order.)
In their supplemental submission, both the United States and the City argued that no
change should be made to eligibility criteria and that claimants alleging that the City
intentionally discriminated against them in the post-exam hiring process should not be eligible
for relief. (See U.S. Oct. 24, 2012, Ltr. (Dkt. 1009); Def. Oct. 24, 2012, Ltr. (Dkt. 1008).)
Plaintiff-Intervenors clarified that they do not believe eligibility criteria should be amended, and
indicated that they merely sought to “ensure that claimants who object to the application of the

15

eligibility criteria to them will have a forum in which to raise such objections.” (Pl.-Int. Oct. 24,
2012, Ltr. (Dkt. 1010) at 1.) They pointed out that the claims process that has been already
proposed and adopted provides that those claimants preliminarily deemed ineligible may object
to the determination of the Special Masters and, if necessary, seek review from the court. Id.
The court agrees that the claims process already provides any potential claimant with the
opportunity to object to the eligibility determinations of the Special Masters and to have his or
her individual circumstances considered. Individuals in the claims process may argue that they
should not be excluded from eligibility because, based on the facts as they existed at the time of
the designation, they should not have been given a particular designation code. Special Masters
may consider these claims, and the court will review the Special Master determinations on these
individuals.
There is a difference, however, between contesting the application of the eligibility
criteria (e.g., that an individual was mistakenly or improperly given a designation code excluding
him or her from eligibility) in an individual case, and alleging that the City intentionally
discriminated against the individual in the post-exam process. As the United States and the City
point out, individuals claiming that the City discriminated against them in the post-examination
screenings would be claiming discrimination for which there has been no finding of liability.
(See U.S. Oct. 24, 2012, Ltr.; Def. Oct. 24, 2012, Ltr. (citing the court’s previous orders on
liability and the scope of relief).) Accordingly, the court concludes that no change need be made
to eligibility criteria, and clarifies that individuals may not claim eligibility for relief by seeking
to demonstrate that the City intentionally discriminated against them in the post-exam
screenings.

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It is important to note that the parties to this suit challenged only the City’s use of Written
Exams 7029 and 2043, and thus nonparties to the suit who wish to challenge the City’s other past
hiring procedures are not precluded under §2000e-2(n) from bringing such a lawsuit. (See Part
II, supra.)
D.

Testimony of FDNY Supervisors

One recurring theme in the Fairness Hearing testimony caused the court great concern.
Several FDNY supervisors—battalion chiefs, captains, lieutenants, and fire academy
instructors—issued ominous forecasts about the implementation of the court’s orders and the
treatment that will be given to the priority hires. For example, according to Battalion Chief
Daniel Murray,
The effectiveness of this Department is based on esprit de corps teamwork, trust,
and honor. To single out certain members based on race and then to hire,
compensate and reward them financially based on their skin color is not just
unfair and immoral but will have a disastrous effect on these aforementioned
qualities within the membership.
Oct. 3, 2012, Tr. at 51:16-52:4. Several supervisors phrased their comments less diplomatically:
“If these plaintiffs were to be awarded with retroactive seniority, they would get zero respect,”
(Captain Kevin Albert, Oct. 1, 2012, Tr. at 16:3-17:23); “[T]hey do not belong, and more
importantly, do not deserve what they have not earned,” (Lieutenant Clifford Freer, Oct. 2, 2012
Tr. at 30:23-31:23 (referring to anyone who tries to enter the firefighter culture with the aid of
the relief provided in this lawsuit)); “In my opinion, anyone who failed test 7029 and 2043 is a
moron and their becoming a New York City firefighter by judicial decree is a joke,” (Lieutenant
David Pace, Oct. 3, 2012, Tr. at 54:21-55:25). Indeed, although many objectors repeatedly
referred to the integrity and teamwork within the ranks of the FDNY, none of them testified that
the incumbent firefighters will ultimately put aside their personal feelings and welcome the new

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hires into the FDNY ranks. Comments such as those listed above only reinforce the court’s
concerns about the FDNY’s willingness to comply with its orders.
As discussed above, this court has broad authority to fashion the most complete relief
possible, and has the duty to bar like discrimination in the future. Ablemarle Paper Co., 422 U.S.
at 418; Local 28, 478 U.S. at 465. The City is directed to follow the procedures set forth in the
Final Relief Order, in accordance with the court’s prior orders and under the supervision of the
Court Monitor. Any intentional failure to adhere to the court’s instructions with regard to any
step of the hiring process may result in contempt proceedings and sanctions to the extent
authorized by law. See Local 28, 478 U.S. at 443-44. This is especially true for those in
management and leadership positions within the FDNY.7
Hopefully, having now been presented with the tools to end discrimination in their ranks,
the civil servants of the FDNY will rise to the task. The court acknowledges that the recent
approval of Exam 2000 was the result of a successful collaboration between testing design
specialists, the Plaintiffs, Special Master Mary Jo White, and the City, and is hopeful that this
recent success is a bellwether for the implementation of the remaining relief. The court expects
that just as the firefighters of the FDNY honor New York City with their sacrifices and

7

Every firefighter in the FDNY ranks is required to take the following oath:
I . . . having been appointed Firefighter in the Fire Department of the City of New York, do
solemnly swear that I will support the Constitution of the United States, and the Constitution of
the State of New York, and that I will faithfully discharge the duties of a member of a Fire
Department of the City of New York, according to the Laws, Regulations and Orders governing
the Department, and will obey the orders and directions of my superiors, to the best of my ability.

Oath of Office, available at http://www.nyc.gov/html/doi/downloads/pdf/fire_exhibits2-25-05.pdf (last visited
October 26, 2012). Title VII was enacted to implement the Fourteenth Amendment to the United States
Constitution. Davis v. Bolger, 496 F. Supp. 559, 564 n.19 (D.D.C. 1980) (“Title VII was enacted largely to
effectuate the guarantees of equal protection provided by the 5th and 14th Amendments [to the United States
constitution].”) The court expects that all firefighters will adhere to their oath and recognize implementing the relief
in this case as part of their sworn obligations.

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dedication, they will honor New York City and its over eight million residents with their
willingness to follow the law.
V.

CONCLUSION
The court has considered all of the objections and submissions from the parties and

determined that none merits any change to the Proposed Relief Order. Accordingly, the
Proposed Relief Order is amended to incorporate the court’s subsequent rulings and shall be
entered as the Final Relief Order to remedy the City’s past discrimination.
SO ORDERED.
/s/
NICHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
October 26, 2012

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