Gulino, et al v. Board of Education, et al
Filing
1001
ORDER: Adopting REPORT AND RECOMMENDATION re: 1000 SPECIAL MASTER'S REPORT. The Court hereby adopts the Special Master's September 7, 2018 Report and Recommendation regarding the proposed Pension Stipulation and Order. SO ORDERED. (Signed by Judge Kimba M. Wood on 11/29/2018) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELSA GULINA, ET AL. ,
96-CV-8414 (KMW)
V.
ORDER
THE BOARD OF EDUCATION OF THE
CITY SCHOOL DISTRICT OF THE CITY OF
NEW YORK,
Defendant.
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: - - - --:-----r--:DATE FILED: It /-::;o/tc:j
•
KIMBA M. WOOD, District Judge:
The Court hereby adopts the Special Master's September 7, 2018 Report and
Recommendation regarding the proposed Pension Stipulation and Order.
SO ORDERED.
Dated: New York, New York
2018
November
zi,
( ~ h-1. W?"!l(
THE HON. KIMBA M. WOOD
United States District Judge
I
Case 1:96-cv-08414-KMW Document 998 Filed 11/28/18 Page 1 of 4
ELSA GULINO, MA YLING RALPH, PETER WILDS, and NIA GREENE, on behalf of
themselves and all others similarly situated,
Plaintiffs,
V.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW
YORK,
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NOV 2Y2U18
Defendant.
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96 CIV. 8414
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U.t.0.J.••.0.N.Y.
PORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, United States District Court Judge.
John S. Siffert, SPECIAL MASTER
For the reasons stated below, I recommend that the Court so order the attached proposed
Pension Stipulation & Order.
I.
Background
The facts of this case are set forth fully in previous opinions by the District Court
over the course of this litigation. See, e.g., Gulino v. Bd. of Educ. of the City Sch. Dist. of the
City of NY. (Gulino I), 201 F.R.D. 326 (S.D.N.Y. 2001) (Motley, J.); Gulino v. Bd. of Educ. of
the City Sch. Dist. of the City o/NY. (Gulino V), 907 F. Supp. 2d 492 (S.D.N.Y. 2012) (Wood,
J. ). I recite only those facts relevant to this Report and Recommendation.
From 1994 to 2014, the Board of Education of the City School District of New York
("Defendant" or "BOE") required permanent teachers to pass various iterations of the Liberal
Case 1:96-cv-08414-KMW Document 998 Filed 11/28/18 Page 2 of 4
Arts and Sciences Test ("LAST") as a condition of employment, even though the tests were not
properly validated and had a disparate impact on African-American and Latino teachers.
Plaintiffs represent a class of approximately 4,500 African-American and Latino teachers who
lost or were denied permanent teacher positions as a result of this discriminatory policy. In
2012, the District Court found that Defendant's use of the LAST violated Title VII, and in 2013,
it certified a remedy-phase class. Since then, the Court enjoined Defendant from using the test to
make hiring decisions and has ordered that certain class members be deemed certified for the
purposes of BOE hiring decisions.
The Court has ordered that class members are entitled to pension damages to compensate
them for pension benefits that they would have received absent the discrimination for which
Defendant has been found liable. See Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of
NY., No. 96-cv-8414 (KMW), 2016 WL 4129111, at *3 (S.D.N.Y. Aug. 3, 2016) ("[T]he parties
agree that class members are entitled to the lost pensions they would have received absent the
discriminatory LAST.").
The Court appointed me Special Master to oversee the two-stage remedial phase that it
outlined in its Certification Order. That Order directed that the first stage address "classwide
issues, including calculation of backpay, pension benefits, and seniority" and that the second
stage address "individual issues, including mitigation and the amount of backpay to which each
claimant is entitled." See Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of NY. ( Gulino
VJ), No. 96-cv-8414, 2013 WL 4647190, at *6 (S .D.N.Y. Aug. 29, 2013) (Wood, J.).
In accordance with my Order of Appointment (see May 20, 2014 Order of Appointment, [ECF
No. 435]; November 12, 2014 Second Amended Order of Appointment, [ECF No. 524]), I
submitted Interim Reports and Recommendations which the Court has adopted. (See IRR dated
2
Case 1:96-cv-08414-KMW Document 998 Filed 11/28/18 Page 3 of 4
October 24, 201 4, [ECF No. 516], Order, [ECF No. 536] ; IRR dated July 17, 2015, [ECF No.
678], Opinion & Order, [ECF No . 674]; IRR dated June 13, 2016, [ECF No. 777], Order, [ECF
No. 800]).
II.
Agreement by the Parties
The Pension Stipulation & Order was drafted by the parties in consultation with me. It is
the culmination of many months of effort to deal with complex and arcane factual and legal
issues. In particular, the efforts of Bryan Berge, Senior Counsel at the New York City Law
Department, should be credited with engaging the three New York City retirement systems to
achieve a fair solution to what initially appeared to be an intractable problem. Plaintiffs'
counsel, especially Robert A. Mantel, also deserve special mention for completing the Pension
Stipulation & Order.
The New York City Teachers' Retirement System ("TRS"), the Board of Education
Retirement System ("BERS"), and the New York City Employee Retirement System
("NYCERS")-public pension systems in which a portion of the plaintiff class are current or
retired members--consent to those protocols and procedures detailed in the Pension Stipulation
& Order. 1
The parties agree to waive the timeframe and procedure in the Second Amended Order of
Appointment [ECF No. 524] for submission of their objections, as they agree the objections they
previously set forth should be deemed submitted to the Court.
1
TRS, BERS, and NYCERS are non-parties that have consented to the terms that pertain to them and for which
consent has not been expressly withheld. TRS, BERS, and NYCERS have consented to these terms solely for the
purpose of effectively administering the pension relief due to class members . TRS, BERS, and NYCERS were not
parties to the discrimination for which the BOE has been found liable and take no position on the liti~ation.
3
Case 1:96-cv-08414-KMW Document 998
III.
Filed 11/28/18 Page 4 of 4
Conclusion
For the foregoing reasons and for the reasons contained in the record, I recommend that
the Court adopt the Pension Stipulation & Order.
Special Master
Dated:
New York, New York
September 7, 2018
4
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