By Rich Bockmann
A panel of appellate judges Tuesday ruled a Brooklyn federal judge overstepped his authority by finding the FDNY intentionally discriminated against black and Hispanic applicants without hearing testimony from the city’s witnesses, kicking the case back to the district court and directing a new judge to be appointed.
In an 81-page, dissenting decision, the three-judge panel of the Second Circuit Court of Appeals ruled District Judge Nicholas Garaufis inappropriately assessed the city’s evidence rebutting claims of intentional discrimination as either “incredible” or out-of-place during the preliminary stage of the proceedings of a lawsuit brought by the U.S. Department of Justice and the Vulcan Society of black firefighters.
The suit claimed two tests the FDNY used in 1999 and 2002 to screen applicants had a disproportionate effect on minority hiring and the department had an institutional practice of discrimination.
The city wanted to submit evidence showing its efforts to hire minorities and challenge the claim that proportionally low numbers of minorities necessarily proved intentional discrimination, but Garaufis would not allow the evidence and found in favor of the plaintiffs without going to a bench trial.
Appellate Judge Jon Newman, writing for the majority, said at the preliminary stage Garaufis’ role was to determine if the city produced enough evidence, not to assess the sufficiency of the evidence.
“Second, and more important, it was improper for the district court to make any assessment of credibility in considering the sufficiency of the city’s rebuttal …,” he wrote.
The third judge, however, wrote that because the minority applicants claimed the FDNY practiced intentional discrimination as part of its standard operation procedure, the city’s evidence should have been held to a higher test.
“Thus, the city’s apparent disinterest in fixing what it has known to be a problem for more than four decades and its apparent disinterest in defending itself now … is precisely the type of disregard the … test was meant to protect against,” Justice Rosemary Pooler wrote.
The panel remanded the case back to the district court and directed a new justice be appointed, writing that an “objective observer would have a reasonable basis to question [Garaufis’] impartiality.”
The panel did uphold Garaufis’ order appointing a monitor to oversee the department’s hiring practices — although with limited authorities — citing a “distressing pattern of limited FDNY minority hiring.”
Baher Azmy, legal director at the Center for Constitutional Rights, said the decision confirmed the need for independent oversight of the FDNY.
“We are very pleased that the city will remain under the court’s watch as it hires qualified new firefighters and provides back pay to those who were unlawfully excluded,” she said. “That is an enormous victory in itself, and we are confident that we will also prevail at trial on the additional claim of intentional discrimination.”
Michael Cardozo, the city’s corporate counsel, said the lawsuit was filed to address a narrow issue involving two now-expired exams and the FDNY would continue its diversity efforts.
Reach reporter Rich Bockmann by e-mail at rbockmann@cnglocal.com or by phone at 718-260-4574.
