NY appeals court approves of FDNY hiring oversight

AP News
Posted: May 14, 2013 8:21 PM

NEW YORK (AP) — The city's fire department must subject itself to court supervision for five years to ensure it does not discriminate against blacks and Hispanics in its hiring practices, a federal appeals court said Tuesday.

The 2nd U.S. Circuit Court of Appeals cited the "distressing pattern" within the department of insufficient minority hires, highlighted by a lawsuit brought more than a decade ago by a black firefighters' group, the Vulcan Society.

A three-judge panel of the Manhattan court reduced the requirements of a court-monitoring program to conform to its finding that a Brooklyn judge had improperly concluded without trial that the city intentionally discriminated. On the subject of intentional discrimination, the court voted 2-to-1.

It said such a finding would have to be reached at trial. It also removed U.S. District Court Judge Nicholas Garaufis from the case for trial purposes, noting he had branded the city's evidence "incredible," making it fair to question whether he could be impartial. He also called the FDNY "a stubborn bastion of white male privilege."

Still, the appeals court left him in control of the remedial process, calling him an "entirely fair-minded jurist."

The appeals panel noted that the percentage of black hires in the fire department had been below 4 percent for decades and that the current percent of 3.4 percent "compares woefully to the 16.6 percent achieved by the city's Police Department and the 61.4 percent achieved by the city's Corrections Department."

Of the city's 11,200 uniformed firefighters, 9 percent are black or Hispanic. More than half the residents in the city of 8 million identify with a racial minority group.

Lawyers on both sides praised the decision.

Michael A. Cardozo, the city's top lawyer, called it a major victory for the city, saying the court had trimmed the period of supervision from 10 to five years and removed most of the "onerous provisions" of the court oversight, including a requirement to hire outside consultants.

"No longer will Judge Garaufis and the monitor he appoints be in effect running the fire department. The court made that clear," he said.

Cardozo said the decision also eliminated the stigma that a finding of intentional discrimination would carry.

Baher Azmy, legal director of the Center for Constitutional Rights, which represented the plaintiffs, called it a "dramatic victory and a recognition of the deep-seeded discriminatory practices" at the department.

Told of the city's claims of success, Azmy said: "Good grief. That replicates the sort of head-in-the-sand perspective they've always exhibited and their narrow-minded focus on their dispute with the judge."

He said the court had upheld about 90 percent of the remedial relief ordered by Garaufis.

Cardozo disputed Azmy's claims, saying the remedial relief had been cut in half.

"I think the other side is absolutely, totally incorrect," he said. "The fact that the fire department is under constant supervision and control by the federal courts has been very, very, very substantially altered."

It was unclear when the court oversight would begin. Garaufis appointed an independent monitor last October, but it has not been implemented pending appeal. Cardozo said Garaufis will have to issue a new order to conform to the 2nd Circuit's changes.

At an afternoon briefing, Cardozo refused to credit the lawsuit for improvements in fire department hiring, saying changes were made by then-Commissioner Nicholas Scoppetta after the Sept. 11 terrorist attacks and later by Commissioner Salvatore Cassano.

The appeals court reinstated federal claims against Scoppetta, saying a trial can determine whether a decision to continue using flawed tests to screen firefighter candidates indicated that the former commissioner had an intent to discriminate.

But it said claims against Mayor Michael Bloomberg were properly thrown out.