United States of America v. City of New York

Filing 1236

ORDER ADOPTING 1230 REPORT AND RECOMMENDATIONS of Special Master Gonzalez and finding Claimant 200008298 eligible to be considered and eligible for monetary relief as a Nonhire Claimant. So Ordered by Judge Nicholas G. Garaufis on 11/18/2013. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,
Plaintiff,

ORDER

-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 ofall 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,
-againstTHE CITY OF NEW YORK,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.

Before the court is Claimant 200008298's objection regarding his designation. Because
this objection presents a particularly unusual set of circumstances, the court will consider the late
objection. The court ADOPTS Special Master Gonzalez's Report and Recommendation (R&R)
with respect to this claimant.

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I.

BACKGROUND
A. Overview of the Case

In 2007, the United States brought suit against the City ofNew York ("City"), alleging
that certain aspects of the City's policies for selecting entry-level firefighters for the New York
City Fire Department ("FDNY") violated Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. ("Title VII"). The United States alleged that the City's use of Written
Exams 7029 and 2043 as pass-fail screening and rank-ordering devices had a disparate impact on
black and Hispanic candidates for entry-level firefighter positions. The Vulcan Society and
several individuals ("Plaintiff-Intervenors") intervened in the lawsuit as Plaintiffs, alleging
similar claims of disparate impact and also alleging disparate treatment (raising both theories of
liability under federal, state, and local law) on behalf of a class of black entry-level firefighter
candidates.
On July 22, 2009, the court granted summary judgment in favor of the United States and
Plaintiff-Intervenors and found that the City's pass-fail and rank-order uses of Written Exams
7029 and 2043 had an unlawful disparate impact under Title VII. (Mem. & Order (Dkt. 294).)
In addition, on January 13, 2010, the court granted Plaintiff-Intervenors' motion for summary
judgment on disparate treatment liability. (Mem. & Order (Dkt. 385).) Although the Second
Circuit later overturned the latter holding, the Circuit left in place the court's disparate impact
judgment as well as its remedial scheme. United States v. City of New York, 717 F.3d 72 (2d
Cir. 2013). The court then entered a modified remedial order. (June 6, 2013, Modified
Remedial Order (Dkt. 1143).)
After a finding of liability for employment discrimination under Title VII, there is a
presumption that back pay, priority hiring, and retroactive seniority are the proper forms of relief

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to remedy past employment discrimination. Wrenn v. Sec'y, Dep't of Veterans Affairs, 918 F.2d
I 073, 1076 (2d Cir. 1990). In this case, the court determined that victims of the City's
discrimination who timely submit claim forms and are determined to be eligible may be awarded
individual relief including priority hiring to the FDNY, back pay, retroactive seniority, and, for
black claimants only, certain noneconomic damages. (Oct. 26, 2012, Final Relief Order (Dkt.
1012); see Oct. 26, 2012, Mem. & Order Addressing Objs. to Proposed Relief Order (Dkt.
1011).)
B. Individual Eligibility Determinations
As part of the claims process, the court has appointed Steven M. Cohen, Hector
Gonzalez, Mitra Hormozi, and Breon S. Peace as Special Masters pursuant to Federal Rule of
Civil Procedure 53(a)(l)(B)(i). (May 22, 2012, Mem. & Order Appointing Special Masters (Dkt.
883).) The court tasked the Special Masters with several duties, including "recommending to the
court a revised framework for the efficient and just processing of claims for relief of injured
individuals" and "[ c]onducting hearings and issuing findings of fact and conclusions of law on
the eligibility for equitable monetary and hiring relief of individual claimants." (Id. at 2.)
The Special Masters collaborated with the parties and made several recommendations to
the court about the claims process. (See Sept. 7, 2012, R&R (Dkt. 963); Sept. 7, 2012, Order
Adopting in Part Sept. 7, 2012, R&R; Dec. 17, 2012, R&R (Dkt. 1026); Jan. 14, 2013, Order
Adopting Jan. 14, 2013, R&R.) Based in part on their recommendations, the court adopted a
framework that proceeded over the last several months as follows: (1) the United States made
preliminary determinations of eligibility for priority hiring and monetary relief and notified the
City and Plaintiff-lntervenors of their determinations; (2) the City and Plaintiff-Intervenors were
given the opportunity to object to the United States' determinations; (3) the United States

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notified via letter each claimant who submitted a claim form regarding his or her preliminary
eligibility determination, and included instructions in the mailing for objecting and a form via
which to do so; (4) the claimants were divided equally between the Special Masters, and the
Special Masters began individualized determinations of claimants' eligibility and issued R&Rs
with their recommendations; and (5) the Special Masters notified via letter each individual
claimant of his/her eligibility determination and included instructions in the mailing for objecting
and a form via which to do so. (See Sept. 7, 2012, R&R at 5-10; Final Relief Order at 15-16.)
According to the Final Relief Order, each claimant was notified of his/her eligibility for
relief by November 9, 2012, and had until November 30, 2012 to contest the determination.
Each claimant was informed that a Special Master would review the claim and make an
independent determination regarding eligibility for relief. (Id.)
In order to provide finality and promote the speedy resolution of claims, the court entered
an order on May 16, 2013, stating that no claims submitted after June 10, 2013 would be
considered for relief. (May 16, 2013, Order re Special Master's Ltr. (Dkt. 1118).)
C. The Claimant
Claimant 200001018 was referred to Special Master Gonzalez for an independent
assessment. (Final Relief Order.) On June 27, 2013, Special Master Gonzalez issued a
recommendation that, based on the information submitted, Claimant 200001018 was not eligible
for relief. (June 27, 2013, R&R (Dkt. 1155-2).) The Claimant filed an objection, but on August
9, 2013, the court entered an order adopting Special Master Gonzalez's recommendation.
However, in October 2013, Special Master Gonzalez learned of unique circumstances
regarding Claimant 200001018 and promptly informed the court of the pro bl em. Specifically,
the information about this claimant submitted to the court had been submitted by the wrong

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person. A father and son with the same name, both of whom applied to be New York
firefighters, had the same mailing address. (Oct. 28, 2013, R&R (Dkt. 1230) at 4.) The father
mistakenly completed the son's claim form and the son did not learn about it until Special Master
Gonzalez issued his R&R. (IQ,,) The son objected, stating: "I had just turned 20 years old on
July 25, 1998-why do you have me as 29 years old before Sept 2, 1998? My birthday is
7/25178. How could I have been 29? This needs to be corrected. There is a mistake here in your
records. I object to your ruling. See attached Birth Certificate." (IQ,,)
However, the court failed to credit this objection because it relied on the claimant's
Social Security number, which, it wrote, "does not match any individual who took" the
firefighter examinations in question. (Id.; Aug. 9, 2013, Mem. & Order (Dkt. 1182), at 20.) The
Social Security number listed on the claim form belonged to the father, not the son. (Oct. 28,
2013, R&R at 5.)
Having finally clarified the events that led the court to deny his objection, the son has
requested that his claim be reconsidered. He has been assigned claimant number 200008298.
(Id.) Based on these unique and extenuating circumstances, Special Master Gonzalez
recommended that the claim be considered and that Claimant 200008298 be found eligible for
relief. (Id.) The United States and Plaintiff-Intervenors have no objection to this course of
action; however, the City has filed objections with the court.
D. The City's Objection
The City's objection is that June 10, 2013, represented a hard deadline for claimants, and
that it is unfair to all involved for the court to alter that deadline for any reason. (Def. Obj. (Dkt.
1232).) The City further expresses concern that allowing a new claimant into the Phase III

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claims process may delay Phase IV, and thus affect resolution for many, if not all, claimants.
(Id. at 3-4.)
II.

DISCUSSION

The process of providing relief in this case is an equitable process. See Albemarle Paper
Co. v. Moody, 422 U.S. 405, 418 (1975). Equity requires that considerations of efficiency be
given their proper place, but it denies that efficiency should be in conflict with justice. Instead,
efficient resolution of individual claims promotes justice by providing relief, such as hiring
priority and monetary compensation, which is more valuable the sooner it is provided. An
equitable process involving hundreds of claims necessarily provides rough rather than finegrained justice. But it must also provide enough flexibility to prevent egregious errors. Given
the extremely unlikely circumstances that led to this error, the diligence of Claimant in
correcting it, and the fact that delay partially resulted from the court's misunderstanding,
consideration of this claim is not fundamentally unjust to other claimants.
In most situations, claimants had adequate notice of the deadlines to submit their claims.
Moreover, the court and the Special Masters were in possession of basic information such as
names and Social Security numbers, which would allow a determination to be made. In this
unique situation, neither the Claimant, nor the court, had proper information. Claimant
200008298's circumstances are unlikely to be replicated in any other claim.
Moreover, it is not the case that Claimant 200008298 submitted nothing before the June
10, 2013 deadline. He submitted a response, including his birth certificate, and that response
was eligible for consideration by Special Master Gonzalez and the court. (Aug. 9, 2013, Mem.
& Order, at 20-21; Oct. 28, 2013, R&R at 4.) However, the court made an error in considering
Claimant 200008298's objection because it relied on the wrong Social Security number. (14:.)

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Processing this claim need not prejudice the parties in their efforts to complete Phase IV
of the relief plan. Adding Claimant 200008298's file will produce some negligible increase in
the amount of work to be done overall, but given the hundreds of claims involved-adding one
more claim does not so increase wait-times as to make doing so unjust. The court is fully
confident that the parties can continue with Phase IV of the claims process even if one more
claim from Phase III must be added. Given that the circumstances weigh heavily in favor of
accepting this claim, the court will do so.

III.

CONCLUSION

In light of the foregoing, the court ADOPTS Special Master Gonzalez's R&R and finds
Claimant 200008298 eligible to be considered and eligible for monetary relief as a Nonhire
Claimant.
SO ORDERED.

s/Nicholas G. Garaufis
!NICHOLAS G. GARAUFISI
United States District Judge

Dated: Brooklyn, New York
November ti , 2013

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