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Appeals Court Hears FDNY Discrimination Case

Tuesday, June 26, 2012

A city lawyer told a federal appeals panel Tuesday that a judge who called New York City's Fire Department "a stubborn bastion of white male privilege" went way beyond his authority by effectively taking over the department's hiring process.

In a courtroom packed with several hundred spectators, city attorney Deborah Brenner urged the 2nd U.S. Circuit Court of Appeals panel in Manhattan to return the case to a different judge in Brooklyn federal court for a trial. The court was unlikely to rule for several months.

Her arguments were countered by Richard A. Levy, a lawyer for the Vulcan Society, an organization representing black firefighters, and Lisa J. Stark, a Justice Department lawyer. Both agreed that Judge Nicholas Garaufis was within his authority last fall when he appointed an independent monitor to oversee the recruitment, testing and hiring of new firefighters for at least 10 years.

Garaufis took the unusual step after concluding the city had failed to ensure that enough blacks and minorities were hired. Fewer than 10 percent of the 11,200 uniformed firefighters in the city are black or Hispanic even though more than half of the city's 8 million residents identify with a racial minority group.

The judge had called the FDNY "a stubborn bastion of white male privilege" and wrote that the persistence of discrimination was a "shameful blight on the records of the six mayors of this city who failed to take responsibility for doing what was necessary to end it."

Brenner, though, said the judge ignored key evidence that should be studied at trial, including its efforts to improve hiring practices to boost the number of minority candidates.

She said the city was "very cognizant of this problem and was trying to do something about it."

Levy said the judge had staged an eight-day trial and viewed "voluminous evidence" before issuing an 82-page decision that found that city, state and federal laws against discrimination were repeatedly violated.

"Everybody knew it was a problem," he said of hiring practices that left the department with no more than 3 percent black representation among firefighters for the last four decades.

He wrote in court papers submitted to the appeals court that the city had refused to change its practices despite repeated complaints from many, including the Vulcan Society, the public advocate, the New York City Equal Employment Practices Commission, City Councilmembers, state and U.S. Congress representatives and the U.S. Equal Employment Opportunity Commission.

"These entreaties have fallen on deaf ears," Levy said.

Brenner's arguments seemed at times to draw sympathy from Judge Jon Newman, who questioned the lawyers as to how the case could be returned to Garaufis for a full bench trial on the facts after he had spoken so strongly about his view of the facts in his written opinions.

Stark said reassignment of such a case should occur only in extraordinary instances. She described Garaufis as "fair, open-minded, unbiased and impartial throughout the proceeding."

She said Garaufis "not only had the authority but the duty" to enter an extensive remedy after he determined there was a pattern of discrimination. She said his rulings were supported by precedents in the federal appeals court in Manhattan and the Supreme Court.

Brenner said Garaufis had imposed "layer after layer after layer" of reviews on the Fire Department's hiring practices.

"Why? Because he's convinced the city is a bunch of intentional discriminators. He's convinced that the fire department is a bunch of intentional discriminators," she said.

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