United States of America v. City of New York
Filing
946
MEMORANDUM & ORDER: Plaintiff-Intervenor's 912 Motion for Reconsideration is DENIED. Ordered by Judge Nicholas G. Garaufis on 8/20/2012. (Lee, Tiffeny)
FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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IN CLE~K'S OFFiCE
US DISTRICT COURT E.D.NY.
* AUG ~2 0 2012 *
UNITED STATES OF AMERICA,
Plaintiff,
BROOKLYN OFFICE
MEMORANDUM & ORDER
07-CV-2067 (NGG) (RLM)
-andTHE VULCAN SOCIETY, INC.,Jor itself and on
behalfofits 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 ofa
subclass ojall other non-hire victims similarly
situated; and
CANDIDO NuNEZ and KEVIN SIMPKINS,
individually and on behalf oj a subclass oj 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.
On March 8, 2012, the court issued a Memorandum and Order that, inter alia, addressed
the value of the lost health insurance benefits for the victims of the City of New York's
discriminatory hiring of entry-level firefighters. (Mar. 8, 2012 Mem. & Order (Docket Entry #
825) at 39-40.) The court held that these benefits must be measured based on individualized
evidence that victims suffered an economic loss that they would not have been suffered had they
been on the City's health plan, rather than on the premiums the City would have paid had the
victims been Fire Department employees. (IQJ Now before the court is Plaintiff-Intervenors'
motion for reconsideration of the court's Memorandum and Order in a "limited way;" they ask
the court to issue an order establishing a presumption that each claimant is entitled to the amount
the City would have paid in insurance premiums for one firefighter, with the chance for each
claimant to prove that he or she has lost more than that amount and for the City to offer evidence
that claimant has suffered a smaller loss than that amount. (Pl.-Intervenors' Mem. in Supp. of
Mot. for Reconsideration (Docket Entry # 913) at 6.) The reader's familiarity with the court's
March 8, 2012, Memorandum and Order is assumed. For the reasons discussed below, the
Plaintiff-Intervenors' motion is denied.
A motion for reconsideration may be granted if, inter alia, the court overlooked critical
facts or controlling decisions that could have changed its decision, see Schrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995), or if there has been an intervening change in controlling
law, new evidence has appeared, or to correct clear error or prevent manifest injustice, see Virgin
Atl. Airways v. Nat'l Mediation Bd., 965 F.2d 1245, 1255 (2d Cir. 1992). Although their initial
brief did not identify which ground for reconsideration justified their motion, in their reply brief,
Plaintiff-Intervenors argue that the court's decision will result in manifest injustice. (Pl.Intervenors' Reply Mem. (Docket Entry # 930) at 2.) The principal arguments put forward in
support of that claim are (I) that the court did not consider that no court has previously required
proof of a claimant's loss in a failure-to-hire case, and (2) that it would be inequitable to place
the burden of maintaining up to ten years' worth of medical records on claimants in this case, as
this case is a class action and notice was not sent to class members before June of2012. (IQJ
The City opposes Plaintiff-Intervenors' motion, but the United States supports it. (See City
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Mem. in Opp. to Mot. for Reconsideration (Docket Entry # 926) at 1; United States July 13,
2012 Ltr. (Docket Entry # 925) at 1.)
The court is not persuaded by Plaintiff-Intervenors' arguments. As to the first argument,
the court's response is that its March ruling was based on "first principles," namely, that "the
purpose of the Title VII backpay remedy is to make victims whole, not more or less." (Mar. 8,
2012 Mem. & Order at 39.) This purpose is the same for failure-to-hire victims as for victims of
other forms of employment discrimination. As to the second argument, the class action/multiple
claimant structure of this case should not alter the substantive purpose-and limits-ofTitle VII.
Cf. Wal-Mart, Inc., v. Dukes, 131 S. Ct. 2541,2561 (2011) ("a class cannot be certified on the
premise that [the defendant] will not be entitled to litigate its statutory defenses to individual
claims"). Fundamentally, there is simply nothing manifestly unjust about choosing an
interpretation of Title VII that has been adopted by other courts and fulfills the statutory purpose
of the act, even in a class action setting. Plaintiff-Intervenors offer the court no persuasive
reason to reconsider its previous conclusion that:
"[v]ictims of discrimination who did not purchase substitute health insurance,
contribute to their interim employer's health insurance costs, or pay for medical
care directly, did not suffer an economic loss, and [c]onversely, victims who were
required to do any of those things may have suffered a larger loss than would be
compensated by a judgment limited to the amount the liable employer would have
paid in health insurance premiums." (Mar. 8, 2012 Mem. & Order at 39.)
Although the court denies Plaintiff-Intervenors' motion, it does make two observations in
response to the concerns expressed in that motion. The first is that the court's ruling was not,
and was not meant to be, an evidentiary one. The court did not hold that documentary evidence
was required to prove a claimant's loss. It may be that losses are provable in other ways, so long
as the fact-finder is given sufficient admissible evidence to make a defensible conclusion. Cf.
EEOC v. Enterprise Ass'n Steamfitters Local 638, 542 F.2d 579, 587 (2d Cir. 1978) ("limiting
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backpay to those who ... can provide documentary proof [of job application] would serve to
frustrate the central statutory purposes of Title VII[;] ... [t]estimonial evidence may be received
as in any other litigation." (internal quotation marks omitted)). Moreover, the court is aware of
the principle that an employment discrimination victim's damages do not have been measured
with "unrealistic exactitude," and that "uncertainties in determining what an employee would
have earned but for the discrimination[] should be resolved against the discriminating (party)."
Id. (quoting Hairston v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975)); see also
Raishevich v. Foster, 247 F.3d 337,343 (2d Cir. 2001) ("If the plaintiff's inability to prove an
exact amount of damages arises from actions of the defendant, a factfinder has some latitude to
make a just and reasonable estimate of damages based on relevant data." (internal quotation
marks omitted)). The court has held merely that the amount to be proven (whether exactly or
not) must be the loss experienced by the claimant, not the cost avoided by the City.
The court's second observation is that Plaintiff-Intervenors' extended discussion of the
need to prove the expense of every visit to a doctor may indicate that Plaintiff-Intervenors do not
understand that one form of loss would be the cost a claimant paid for substitute health insurance
(either on the open market or in the form of contributions toward an employer-sponsored health
plan). Proof of such payments may be far simpler to obtain and may eliminate any need to
assemble a ten-year pile of receipts from doctor's offices for many claimants.
For the foregoing reasons, Plaintiff-Intervenors' motion is DENIED.
SO ORDERED.
s/Nicholas G. Garaufis
Dated:
Brookly~
NicHOLAS G. GARAUFiil
United States District Judge
New York
August _(;;1.0_,2012
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