United States of America v. City of New York

Filing 861

MEMORANDUM AND ORDER: In this Memorandum and Order, the court addresses how retroactive seniority is to be awarded to Non-Hire and Delayed-Hire Claimants; the time potential claimants and class members will be given to file claim forms and class opt-out forms; and the language of the notices, claim forms, and opt-out form. So Ordered by Judge Nicholas G. Garaufis on 4/19/2012. (Lee, Tiffeny)

FILED
us

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,

IN CLERK'S OFFICE
DISTRICT COURT E.D.N.V.

* APR lO 2012

*

BROOKLYN OFFICE
MEMORANDUM & ORDER

Plaintiff,
-and-

07-CV-2067 (NGG) (RLM)

THE VULCAN SOCIETY, INC.,Jor itself and on
behalfofits members, JAMEL NICHOLSON, and
RUSEBELL WILSON, individually and on behalf
ofa 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
-andTHE UNIFORMED FIREFIGHTERS ASSOCIATION
OF GREATER NEW YORK,
A Non-Aligned Party.

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NICHOLAS G. GARAUFIS, United States District Judge.

In this Memorandum and Order, the court addresses how retroactive seniority is to be
awarded to Non-Hire and Delayed-Hire Claimants; the time potential claimants and class

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members will be given to file claim forms and class opt-out forms; and the language of the
notices, claim forms, and opt-out form. 1

I.

Retroactive Seniority
As previously determined in the court's Initial Remedial Order ("I.R.O.") (Docket Entry

# 390 at 22-31), retroactive seniority is an equitable remedy that will be available for some
claimants in this case. See Franks v. Bowman Transp. Co., 424 U.S. 747, 771 (1976) ("The
denial of seniority relief to victims of illegal racial discrimination in hiring is permissible 'only
for reasons which, if applied generally, would not frustrate the central statutory purposes of
eradicating discrimination throughout the economy and making persons whole for injuries
suffered through past discrimination.'" (quoting Albemarle Paper. Co. v. Moody, 422 U.S. 405,
421 (1975». The two categories of claimants who may benefit from this remedy are Non-Hire
Claimants who secure priority hire positions, and Delayed-Hire Claimants. The court considers
each in tum.
In the I.R.O., the court anticipated that 293 individuals from among the Non-Hire
Claimants would be hired through a priority hiring remedy. (I.R.O. at 20.) The court also ruled
that each of these priority hires would be eligible for retroactive seniority. (Id. at 28.) The court
considered the difficulty inherent in fixing a presumptive hire date for the priority hires for the
purposes of determining retroactive seniority (id. at 23-25), and concluded that using the median
hire date of hires from the two written examinations was the best method possible under the
circumstances (id. at 28). The parties now all agree that this method of determining the seniority
of the priority hires is the law of the case. (See City Apr. 12,2012 Ltr. (Docket Entry # 851) at
The procedural history of this case is extensive and the court wil1 not summarize it here. The court has
done so recently, in full or in part, in its Memorandum and Order denying the City's Motion for an Order to Show
Cause (Docket Entry # 846 at 2), its Memorandum and Order considering the extent of monetary liability and the
availability of the defense of mitigation (Docket Entry # 825 at 2-12), and its Memorandum and Order setting forth
its conclusions of law following an August 2011 bench trial (Docket Entry # 743 at 2-5).

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2; United States Apr. 12,2012 Ltr. (Docket Entry # 852) at 2; Non-Hire Subclass Apr. 12,2012
Ltr. (Docket Entry # 853) at 2.) Therefore, the seniority of the 293 hires will be based on
presumptive hire dates of February 2, 2003, for those hires who took Exam 7029, and June II,
2006, for those hires who took Exam 2043.
With regard to Delayed-Hire Claimants, the United States had proposed that they receive
the same presumptive hire dates as Non-Hire Claimants: i.e., minority firefighters hired after
February 2, 2003, from list 7029 or after June 11,2006, from list 2043 would receive seniority
back to those dates. (I.R.O. at 28.) The effect of the United States' proposal was that a black or
Hispanic firefighter hired after the median hire date for each list may be eligible for an increase
in seniority, but a firefighter hired before the median hire date of his or her list would not receive
any increase in seniority. In the I.R.O., the court expressed reservations about this proposal (id.
at 29) and considered the possibility that retroactive seniority could be distributed by allotting to
each minority hire a pro rata share of the years of seniority that the United States' statistician had
estimated had been lost (id. at 30 & n.24). The court did not resolve the appropriate manner in
which to determine which Delayed-Hire Claimants should receive retroactive seniority awards in
the I.R.D. (See id. at 30-31.)
The issue of how retroactive seniority is to be awarded to Delayed-Hire Claimants should
be resolved now, so that potential claimants can be notified of the awards that they might receive
if they file a claim. The United States has reiterated its position that the court should use the
median hire dates as the presumptive hire dates for Delayed-Hire Claimants seeking retroactive
seniority. (United States Apr. 12,2012 Ltr. at 3.) The United States argues that no one can say
when individual candidates would have been hired absent the influence of the invalid written
exams. (Id. at 3-4.) Using the actual sequence of when candidates were hired into academy

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classes would perpetuate the influence of the exams (id. at 4 n.5); for example, the court cannot
assume that a minority firefighter hired into the second fire academy class would have been hired
into the first class absent the effect of the exams; it might have been the case instead that a
firefighter hired into one of the last classes would have been hired into the first class absent the
effect of the invalid exams (id. 3-4).
The Delayed-Hire Subclass Representatives agree with the United States' position, for
largely similar reasons. (See Delayed-Hire Subclass Apr. 12,2012 Ltr. (Docket Entry # 854) at
2-3.) The Subclass Representatives add that a pro rata distribution of seniority credit to DelayedHire Claimants would not provide "significant relief' to any Claimant. (Id. at 3.) A pro rata
distribution would give each claimant additional seniority credit in an amount between three and
four months, which, for most claimants, would be too small of an increase in seniority to change
their standing relative to the firefighters inducted in the fire academy class hired before the
claimant. (ld.) Moreover, Delayed-Hire Claimants hired after the median hiring date could be
disadvantaged relative to the priority hires from the Non-Hire Subclass, whose seniority would
be measured from that date. (lQ)
New York City opposes awarding retroactive seniority based on the median hire dates.
(See City Apr. 12 Ltr. at 2.) The City endorses the counter-proposal that the court offered in the
I.R.O.: a pro rata distribution of the amount of seniority the United States' statistician estimated
was lost due to the rank-order usage of the exams to each eligible Delayed-Hire Claimant. (Id.)
The City's justification for a pro rata approach is that "sufficient evidence exists to make more
individualized determinations." (Id.) The City notes that black and Hispanic firefighters who

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entered the fire academy in the first class hired from either list would not be eligible for relief. 2
Od.)

As the United States and the Subclass Representatives state in their letter briefs, it is
impossible for the court to know exactly who would have been hired into the first academy
classes and who would have been hired into the last ones if the invalidated exams had not
existed. Although the court has concluded, based on statistical evidence, that many hires were
delayed due to the invalid exam (see Mar. 8,2012 Mem. & Order at 6-7; Disparate Impact
Liability Op. (Docket Entry # 294) at 20-22), there is no mechanism for determining which of
the minority firefighters were hired later than they would have been had there been a valid exam,
which were hired earlier than they would have been otherwise, and which, through chance, were
hired approximately when they would have been under a valid hiring regime. The exams that the
court has found to be invalid harmed (an unknowable) many and created windfalls for (an
unknowable) some. Given this reality, a pro rata distribution of lost years of seniority would
largely perpetuate the existing state of injuries and windfalls, with a slight increase for those who
have already received windfalls and a slight reduction in the extent of the harm for those who
have been harmed. The court concludes that the solution that minimizes the injuries and
windfalls created by the invalid exams, and therefore the more equitable solution, is to permit
eligible Delayed-Hire Claimants to receive seniority credit based on the median hiring dates. 3

The City's comment about the availability ofrelieffor hires from the first fire academy class hired from
each of the two exam lists would appear to have been addressed in the eligibility definitions jointly proposed by the
parties and approved by the court. (See Mar. 8, 2012 Mem. & Order (Docket Entry # 825) at 53.)
The court is aware that this method of awarding seniority minimizes, but does not necessarily eliminate, all
injuries and windfalls. The only way to do so would be to re-set the seniority of all black and Hispanic firefighters
to the median hire dates. The court will not upset the settled expectations of the firefighters who had been hired
before the median hiring dates in this manner; just as the court ruled in the I.R.O. that it would not upset the settled
expectations of white firefighters hired before the median hiring dates by awarding seniority to Non-Hire Claimants
earlier than the median hiring date. (See I.R.O. at 26-27.)

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Because the eligibility criteria proposed by the parties and adopted by the court define an
eligible Delayed-Hire Claimant as a black or Hispanic firefighter who was not hired in the first
academy classes hired off of the two lists (see Mar. 8,2012 Mem. & Order at 53), the rule the
court adopts will create an asymmetry between backpay and seniority relief to a certain extent.
However, the fact that there is an asymmetry between monetary and non-monetary relief is not
by itself a reason to reject the United States' position. In the Non-Hire Victim context, the
court's orders envision many more claimants receiving monetary relief than will receive priority
hire positions. Moreover, the rule the court chooses makes up for this asymmetry with two
additional advantages: it uses the same method of awarding seniority for Delayed-Hire Claimants
as will be used with the priority hires, and thus places most of the victims ofthe invalid exams
on equal footing; and, because of its simplicity, it is the most administratively efficient rule to
apply.
Finally, the court notes that the parties agree that the seniority awards should not displace
minimum time-in-grade requirements that exist under preexisting FDNY rules (for example, a
requirement that a firefighter spend a minimum number of years as an entry-level firefighter
before sitting for a promotional exam). (Delayed-Hire Subclass Apr. 12,2012 Ltr. at 4.) The
court agrees that seniority awards will not displace such rules, to the extent they exist. With that
caveat in mind, the court approves using the median hiring date of candidates from each exam

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for awards of seniority for both priority hires from the Non-Hire Claimants and eligible DelayedHire Claimants. 4

II.

Length of Time for Putative Claimants/Class Members to Mail Forms
The parties have proposed that putative claimants and subclass members be instructed

that they must mail their claim forms and opt-out forms by forty-five days after the date the City
mails out the notices and claim forms. (See Proposed Remedial Phase Timeline (Docket Entry #
844-2) at I.) The special masters for individual relief determinations have recommended that
putative claimants be given thirty days to mail claims and opt-out forms. (See Report and
Recommendation (Docket Entry # 849) at 3.) After considering the issue, the court believes that
thirty days will be an insufficient time for the City to receive notifications of undeliverable
notices and re-send notices to new addresses; the court therefore agrees with the parties that
claimants and subclass members be given forty-five days.

III.

The Notices, Claim Form, SSA Consent Form, and Opt-Out Form
The court has reviewed the draft claim and class notices for mailing, publication, and

broadcast; the instructions for the claim form, the claim form itself, and the consent form for the
release of information from the SSA; and the class opt-out form. (See United States Apr. 10,

2012 Ltr. Exs. 1-5 (Docket Entry ## 850-1-5).) The court approves the use of all the
documents as they are, except for the class notice. In light of the unresolved issue of whether
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The coun notes that the City expressed concern that a Delayed-Hire Claimant should not benefit from
increased seniority if his or her delay in being hired was self-induced. (City Apr. 12,2012 LIT. at 3.) The City's
point is unclear--on the one hand, it is pellucid that only victims of discrimination should receive a remedy. see
Ingram v. Madison Square Garden Center, Inc., 709 F.2d 807, 812-13 (2d Cir. 1983); on the other hand, it was the
coun's understanding that the eligibility criteria the panies jointly proposed and the coun endorsed were designed to
render ineligible any claimant who was not a victim of the unlawful hiring practices ~ Mar. 8, 2012, Mem. &
Order at 53). If the City now believes that the criteria are insufficient to do so in the case of Delayed-Hire
Claimants, then it must explain why, propose additional qualifications that the City believes are necessary to resolve
its concerns, and explain why the City did not include these qualifications in the joint proposals that the panies
submined in their joint June 2011 letter ~ United States June 24, 2011 LIT. (Docket Entry # 651) at 4-5); the City
should include these explanations and proposal in the briefing due May 3, 2012, and the other panies should respond
on May 17,2012.

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Levy Ratner, P.C., and the Center for Constitutional Rights may represent claimants on an
individual basis (see United States Apr. 10,2012 Ltr. (Docket Entry # 850) at 2-4)), the court
concludes that the class notice's language should be re-drafted. The court proposes the
following revised language for the topic "Do I need my own lawyer?" located on pages 3-4 of
the class notice:
Class members may hire their own lawyers, but are not required to do so.
The Court has decided that the lawyers for each Subclass are qualified to
represent the best interests of that Subclass as a group. If you want to hire a
lawyer to appear in the case on your behalf, regarding the Class claims or your
individual claim for an award, you may do so. If you are considering opting out
of the Class Action (as explained below), you should consult an attorney
immediately about how to proceed.
If you do not opt-out of the Class Action, the Subclass lawyers will
represent you concerning the method of distributing backpay, seniority, job offers,
and other issues that affect the subclass as a whole.
If you would like legal representation on individual issues, such as your
eligibility for and amount of your compensatory damages or if there is a dispute
about how much backpay you should receive, you may ask Levy Ratner, P.C., the
law firm for the Non-Hire Subclass, or The Center for Constitutional Rights, the
law firm for the Delayed-Hire Subclass, to represent you individually, to the
extent permitted by the Court. You may also hire your own lawyer, but you may
be required to pay for that lawyer's services.
The Subclass lawyers, Levy Ratner, P .C. and The Center for
Constitutional Rights, will not ask you to pay any of their fees or expenses. They
will ask for payment from the City.
The parties shall submit a revised draft of the class notice to the court within five days of
the date of this Order, along with any objections they have to the proposed language.
SO ORDERED.

s/Nicholas G. Garaufis

](nCHOL1\S G. GARAUFIS

Dated: Brooklyn, New York
April -tl-, 2012

United States District Judge

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