Feds Show They Know How to Seek A Federal Monitor

Monitor Sought to Oversee Fire Department Hiring Process
The New York Law Journal by Daniel Wise  -  August 2, 2011

Evidence that Fire Department of New York officials injected themselves into the hiring of new recruits surfaced at a hearing yesterday to determine whether a court monitor should be appointed to oversee the FDNY's hiring process.  Eastern District Judge Nicholas G. Garaufis, who last year found the department intentionally discriminated against minorities in hiring, questioned Dean Tow, the head of the FDNY's candidate investigation division, about whether he had received calls from FDNY officials about candidates with whom there were "issues."  Mr. Tow said there had been inquiries in the nature of "how is it going" referring to specific job applicants, but that the calls had "no influence" on him. But a lawyer for the Vulcan Society Inc., an organization of black firefighters suing the FDNY, read into the record the 2002 deposition testimony of then-Deputy Commissioner for Personnel Sherry Kavaler, who no longer holds that position. Ms. Kavaler testified that "you would have lieutenants and captains, whatever," calling and saying "this is the son of so and so" who "beat his wife" or "socked someone in a disco. …I lived next to him for years. He's a good guy. …I'll vouch for him."  Yesterday's hearing is part of ongoing litigation that began with a suit against the fire department by the U.S. government in 2007, joined by the Vulcan Society. The plaintiffs claim that three written tests used by the FDNY to screen applicants from 1999 until 2007 discriminated against minorities. The city has denied any discrimination, but Judge Garaufis has sided with the government and the Vulcan Society.  In July 2009 and again in January 2010, he ruled in United States v. City of New York, 07 cv 2067, that the FDNY had discriminated against minorities in hiring. In the earlier ruling, the judge found on a complaint brought by the U.S. Department of Justice, that the FDNY's hiring practices had disparate impact in violation of Title VII of federal civil rights laws.  Judge Garaufis ordered a new test, which is in the process of being developed under a court-appointed monitor, Mary Jo White, the former Southern District U.S. attorney who is now a partner at Debevoise & Plimpton.  New York City has announced that the new test will be given in January, and applicants are now registering to take it.  The city, which is represented by Patricia Mills, a senior counsel in the Law Department, is opposing the plaintiffs' motion and maintains that no relief is necessary to prevent discrimination in the hiring process.

Monitor Sought

The Vulcan Society is seeking a monitor to oversee the process of conducting background checks to determine the "good character" of those who pass future exams.  A statistician testified yesterday for the Vulcan Society that after the test was given in 1999, though blacks made up 6.2 percent of the applicants who passed the test, they made up 23.1 percent of the group that was disqualified based on character reviews, which Mr. Tow has overseen since 2001.  The Vulcan Society also is asking Judge Garaufis to find ineffectual the FDNY's internal process for overseeing bias complaints and to give a monitor the power to resolve complaints and to order measures to strengthen the recruitment of minorities.  A separate hearing will be conducted on the Vulcan Society's claims for remedial hiring and back pay. The group estimates that nearly 300 minority firefighters would have been hired but for the prior discrimination, and that they are entitled to $75 million in back pay.  About 7,400 minority applicants took the 1999, 2000 and 2007 exams, which Judge Garaufis has voided.  More than half of the city's population belongs to a racial or ethnic minority. However, only 9 percent of the more than 11,000 uniformed firefighters are black or Hispanic.  Minorities makes up 47.4 percent of the New York Police Department as of June 30, according to NYPD statistics.  During yesterday's hearing, Richard H. Levy, of Levy Ratner, the Vulcan Society's lawyer, presented the records of the background checks regarding several applicants.  In two examples, applicants had been involved in incidents of domestic violence. One applicant, found to have violated an order of protection, had received a conditional discharge. Mr. Tow recommended that the applicant, who was white, be appointed. In the other, he recommended against the appointment of an Hispanic applicant who received an adjournment in contemplation of dismissal for "pushing" his wife.  Two other of the incidents raised by Mr. Levy involved firefighters who had been police officers acquitted of murdering Amadou Diallo. Mr. Tow recommended the appointment of one of the officers, and his predecessor recommended the appointment of the other.  Daniel Wise can be contacted at dwise@alm.com