2012-01-20 / Top Stories

Merit Matters Files Appeal On Garaufis Rulings

By Howard Schwach

Already angered by the federal court decision by Judge Nicholas Garaufis that the New York City Fire Department has been willfully discriminatory in its hiring policies for the last two decades, “Merit Matters,” an advocacy group run by a Fire Department Battalion Chief, is going back to court on January 24 to fight not only the ruling, but the fact that the judge has allowed a program to develop that “discriminates against white applicants to the coming test.”

“Merit Matters has become aware of a ‘pilot program’ approved by Special Monitor Mark Cohen and Judge Nicholas Garaufis that will benefit one group of applicants while excluding all others – and the race of the applicants is the sole determining factor in the decision to do so,” says Battalion Chief Paul Mannix, who heads the advocacy group. “As Supreme Court Chief Justice John Roberts has opined in the Connecticut discrimination case, the way to stop discrimination based on race is to stop discriminating based on race.”

Mannix calls the “pilot program” to visit the homes of black applicants and no other group in order to allow them to “follow up” on incomplete applications “completely unacceptable.”

Mannix told The Wave this week that the organization had finally received “Friend of the Court” status and, assisted by attorney Keith Sullivan of Sullivan & Gallishaw, will file an Amicus status brief next week.

Mannix credits Sullivan, who works pro bono for the group, with assisting it in getting this far.

“I don’t tell lawyer jokes any more thanks to Keith,” he says.

He adds, “We have volumes of facts and figures that prove that the department has gone all out to recruit minority applicants. We have bent over backwards to integrate the department and now we are bending like a pretzel thanks to Garaufis. We don’t agree with going to the homes of minority applicants four months after the deadline and giving them the right to reopen their applications to get it right. If they do that for minorities, then they have to do it for white applicants as well, and we are willing to make those home visits. Equal treatment should mean equal treatment.”

Sullivan agrees.

“The appeal we are filing challenges the judge’s rulings on two levels: on the liability – whether or not the department did discriminate against minority candidates – and on the remedial measures he ruled were proper – allowing the reopening of the application period for black applicants, but not for white applicants,” Sullivan told The Wave. “How could the court allow black applicants to reopen their applications four months after the deadline has passed, but not allow white applicants to do the same?”

Sullivan said that he represented a hero marine who filed his application one hour late, and the department denied his application.

“The white marine was one hour late and they denied him the right to file an application, but now the department is allowing black applicants to reopen after four months; where is the fairness in that,” he asked.

Sullivan says he will file his suit with the federal Second Circuit Court of Appeals next week. He believes that whichever side loses the appeal will go to the Supreme Court. He expects to win at the highest level.

“The Connecticut firefighters lost their case twice at the lower courts,” he said. “They won when it counted.”

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