On Tuesday, the U.S. Court of Appeals for the Second Circuit reversed Eastern District Judge Nicholas Garaufis's finding of intentional discrimination by the FDNY against black and Hispanics. In order to understand the implication of this ruling, it is necessary to understand how this case was initiated and what has happened in it along the way.
To keep that summary simple, the Department of Justice filed a “Disparate Impact” lawsuit against the FDNY alleging that blacks and Hispanics were failing the FDNY entrance exams more frequently than white candidates. The Vulcan Society, a fraternal organization of black firefighters, joined in that lawsuit and added a theory of “Disparate Treatment’ alleging that the FDNY intentionally discriminated against blacks and Hispanics. Judge Garaufis denied the FDNY their right to have a full trial on these two legal theories and determined as a matter of law that the FDNY was liable on both fronts.
As a result of the “Impact” claim, he created quota hiring and back-pay. As a result of the “Treatment” claim, he appointed a Special Monitor to be a pseudo-surrogate in managing and operating the FDNY in matters of recruitment, EEO issues, employer retention, Human Resources, department policy and procedures and also required that they hire expert consultants to assist in reversing the racism atmosphere.
The New York City Law Department represented the City of New York. Merit Matters filed an Amicus Curia brief with the appellate court. Merit Matters is an advocacy group that opposes illegal quota-based hiring or promoting and touts an individual’s merit as the sole factor to be considered in the hiring and promoting of firefighters within the FDNY and society as a whole. The group was founded by Deputy Chief Paul Mannix and is represented pro-bono by Sullivan & Galleshaw, llp. They have over 10,000 registered supporters.
Most unfortunately, the City Law Department -- despite constant requests from Merit Matters -- chose to only appeal the Disparate Treatment (a/k/a Intentional Discrimination) claim. Thus, that was the only issue before the appellate court. There was compelling evidence that the entry-level tests used in the past were legal because they tested job-related requirements, such as reading comprehension, logic and other fundamental cognitive skills. Thus, despite the fact that minorities were not passing them in lockstep with white candidates, Merit Matters maintained that they were legal since the law allows for such disparate impact if the tests are assessing job-related required skills. In overturning Garaufis’s ruling the appellate court also made the unprecedented finding that the judge has shown a clear bias against the FDNY and ordered the case to be remanded back to another District Court judge for a bench trial on whether the FDNY intentionally discriminates against minorities.
The evidence is overwhelming that such a vile allegation is false and should easily be refuted in Court once the FDNY is afforded their Constitutional right to a trial on this issue -- something Judge Garaufis denied.
Merit Matters has been at the forefront of this case, arduously advocating for equality. Sadly, the Law Department has chosen to ignore Mannix’s offers of help and Judge Garaufis made a buffoonish and highly unsuccessful attempt at intimidating him by sending US Federal Marshals to his home.
Later, during a hearing Garaufis asked an FDNY Commissioner what should be done to discipline and prevent the outspoken group and in the most embarrassing moment in the whole case, the Commissioner had to remind the Judge about the existence of the First Amendment and free speech.
The chief lawyer for the law department, Michael Cardozo, stated that he was optimistic about prevailing on the remanded issue, that the FDNY has made great strides in improving diversity and that this was a "a major victory. We are pleased that the Appeals Court agreed with our Amicus Brief, that finding of Intentional Discrimination is simply shocking. We are dismayed, however, that the City did not Appeal the entire ruling. Their failure to appeal the finding of Disparate Impact means lesser qualified individuals, some who scored as low as 25 on an open book test, may now be hired because of skin color,” said Mannix earlier this week.
This is a tremendous legal victory for that which was up on appeal. To vacate a decision that the members of the FDNY are racist and intentionally discriminate within the department is perhaps the most offensive allegation one could make. However, I have always maintained that the City’s failure to appeal the entire case was a critical error and one that can have long-term negative implications for the FDNY.
Merit Matters will continue to be the loudest voice and strongest advocate for equality and fairness. “When you hire the best, most qualified candidate in a color-blind manner, you’ll get the best department, one like the FDNY that we can all be proud of. However, the minute politics and preferential treatment plays into the vetting process, you’re no longer hiring the best candidate,” Sullivan said. “What’s clear from Tom Perez and this Department of Justice is that they have a policy and practice of alleging racism where it simply doesn’t exist. Such conduct is damaging to society because of its divisive nature.”
Mannix stated, “Merit Matters is our name but it is much more than that - it is an indisputable truth which, if ignored, will result in tragedy.”