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Firefighter Test Judge Wants Special Master To Decide on Remedies
By FLORA FAIR | Posted: Monday, June 20, 2011 5:00 pm
News that a special master may be appointed to consider individual plaintiff claims in the Firefighter exam case signals the possible end of a long-running lawsuit that’s left the Fire Department short-staffed and FDNY candidates caught in a years-long hiring freeze.
U.S. District Judge Nicholas Garaufis issued a memorandum recommending the appointment of a special master for the individual claims process. For the Vulcan Society, a fraternal organization of black Firefighters that initiated the case, this would be a positive step.
‘Makes It Fair, Transparent’
“The plaintiffs-interveners support the idea,” said Darius Charney, an attorney with the Center for Constitutional Rights, which is representing the Vulcans. “At the end of the day, we want the process to be as fair and transparent as possible, and the best way to ensure that is to have a neutral decision-maker, rather than one of the parties to the lawsuit, making individual eligibility determinations.”
The lawsuit goes back to 2002, when the Vulcans filed a discrimination claim against the Fire Department based on its two most recent Firefighter exams with the Equal Employment Opportunity Commission. The Justice Department investigated FDNY exams from 1999 and 2002, and filed a lawsuit which the Vulcans joined in 2007.
The suit claimed a pattern of discriminatory hiring practices against black and Hispanic Firefighter candidates, explicit in the FDNY exam results. A significant percentage of minority applicants scored lower than whites, and the plaintiffs argued that the test essentially set them up to fail.
Judge Garaufis found in 2009 that the two exams had a “disparate impact” minority candidates. The 2007 FDNY test, Exam 6019, was created to address these allegations even before the suit had been filed. But the new exam was criticized as having vague and hypothetical questions that could confuse test-takers, and the judge decided that it was also discriminatory.
Big Gains Not Good Enough
The eligibility list for Exam 6019 had about 12.3 percent black candidates ranked in the top 4,000, which is usually the cut-off point for FDNY hiring. Hispanics made up about 20 percent of the top 4,000, with white test-takers sharing a much larger percentage. Mr. Charney said these percentages weren’t proportional to the ethnicities of the test-takers.
The city and fire unions have denied any racial discrimination by the department, noting that a record percentage of minority candidates scored well enough to be hired, though it remains one of the least-diverse firefighting forces of any major city, with about 88 percent white members.
In 2010, Judge Garaufis gave the city a choice of five different hiring options for the FDNY, which included priority hiring for black and Hispanic candidates. The Bloomberg administration rejected the hiring guidelines, saying they amounted to racial quotas. In response, Judge Garaufis ordered an immediate hiring freeze at the department last August, which had not done any hiring since 2008 due to budget problems.
Since then, the FDNY has spent about $2 million a month trying to plug the staffing hole left by the freeze, while firefighters deal with the removal of the fifth Firefighter from all engine companies and the possibility of losing 20 fire companies next month. For the unions, this is not just a political issue, but one of public safety.
‘Hire the Best Candidates’
“Our concern is simply the staff,” said Alexander Hagan, president of the Uniformed Fire Officers Association. “We would like an exam that would withstand legal challenges and would allow the department to hire the very best candidates possible.” Mr. Hagan said that a high reading comprehension level and top physical conditioning are both vital to the job.
Decisions remaining in the case involve about $15 million in damages for black and Hispanic candidates who took the 1999 and 2002 exams, as well as $50-$75 million in back pay. If appointed, the special master would determine compensation and other issues like seniority rights for those hired.
Just how this money would be split, and among how many people, remains to be decided. Mr. Charney said it depends on how many FDNY candidates from the exams decide to seek compensation. “There were over 7,000 black and Hispanic applicants who took the two discriminatory examinations, but we will not be able to locate all of them, and not all of the folks we do locate will return claim forms,” he said. “There will probably be a lot of class members whose claims are not disputed by the city or the DOJ, and those claims will not have to go to the special master.”
Exam 6019 candidates scored a victory when Mayor Bloomberg signed into law a temporary increase in the maximum age for applying to take the Firefighter exam from 29 to 35 for all those who took the exam in the last five years or who were on a special military list from an earlier exam. Test experts representing the city and the Vulcans are designing a new exam that should be finished before the year’s end.
“I just want good people who can compete successfully on the Civil Service test and that the merit system is maintained,” Mr. Hagan said.