New York City took its fight to vacate the sweeping discrimination remedy ordered for the New York Fire Department to the U.S. Court of Appeals for the Second Circuit yesterday, claiming Judge Nicholas Garaufis (See Profile) cannot be trusted to be fair and should be removed from the case.

In high-stakes arguments that will determine whether a court monitor will oversee firefighter hiring practices for the next decade, Deborah Brenner of the Law Department told the circuit that Garaufis had “lost sight of the fact this is all about intent” when he refused to credit positive steps the department has taken to increase opportunities for blacks and Hispanics.

Richard A. Levy of Levy Ratner who represents black firefighters and Deborah A. Brenner, senior counsel at the New York City Law Department, argue before the U.S. Court of Appeals for the Second Circuit yesterday.  NYLJ/Rick Kopstein

The remedial order issued by the judge in 2011 imposed “layer after layer after layer of review,” Brenner said. “Why? Because he’s convinced the city is a bunch of intentional discriminators, that the Fire Department is a bunch of intentional discriminators.”

Judges Rosemary Pooler (See Profile), Jon Newman (See Profile), and Ralph Winter (See Profile), who appeared by videoconference, were on the panel in United States v. Bloomberg, 11-5113-cv, and judging at least by Newman’s questions, the panel was entertaining the possibility that Garaufis might be reversed.

But in an argument that was actually interrupted by a fire drill, Richard Levy, the attorney for the black firefighter group the Vulcan Society, told the court that Garaufis was well within his “broad authority” to remedy discrimination under Title VII.

“The judge had the authority to grant this relief” after conducting an eight-day hearing, compiling “a searching record,” and delivering 82 pages of findings of fact, said Levy, of Levy Ratner, reminding the court that Garaufis had stated “I have no confidence in the city here” after decades of discrimination and foot dragging.

The judges were troubled by the procedural posture of the case, which was initially brought by the U.S. Department of Justice alleging that two firefighter exams in 1999 and 2002 had a disparate impact on minorities. The Vulcan Society later intervened.

Read appellate briefs filed by the City of New York, the United States, and the Vulcan Society.

Garaufis found the tests had a disparate impact in 2009 and the city’s reliance in the test violated Title VII of the Civil Rights Act of 1964.

Then, in 2010, because the city knew the tests had a disparate impact but continued to administer them for years, Garaufis ruled for the Vulcan Society on summary judgment, finding the city was guilty of disparate treatment through intentional discrimination.

It was this latter finding that led to a bench trial on remedy and Garaufis’ extensive remedial order in 2011, his appointment of Mark S. Cohen as court monitor and the city’s appeal to the Second Circuit asking that the judge be taken off the case.

All of this has been marked by an escalating war of words between a judge who says the city “doesn’t get it” and the city, which claims the judge is wrong on the law and grossly overstepping his authority.

The judge has ordered that Corporation Counsel Michael Cardozo, who was at the circuit for the arguments yesterday, personally sign off on submissions in the case. He has faulted the city for the pace at which it provides documents and has used sharp language in his opinions, calling the Fire Department “a stubborn bastion of white male privilege.”

“Instead of facing hard facts and asking hard questions about the City’s abysmal track record of hiring black and Hispanic firefighters, the Bloomberg administration dug in and fought back,” he said in his remedial order vowing a court monitor “for at least 10 years” (NYLJ, Oct. 6, 2011).

The Law Department fired back in January in an appeal saying Garaufis had demonstrated “bias throughout the proceeding,” had “intentionally disregarded a wealth of evidence relevant to the city’s lack of discriminatory intent,” and appeared “bound and determined to justify closely supervised ‘top-to-bottom’ injunctive relief” (NYLJ, Jan. 23).

And twice the city went after Cohen, the court monitor from Cohen & Gresser, asking, but not getting, access to his bills for detailed inspection and complaining in writing about the monitor’s “wastefulness” after the court approved two bills in excess of $300,000.

“At this rate,” Cardozo wrote “the City’s taxpayers will be charged approximately $2 million a year for services that under the Court’s order are to last for at least ten years.”

Disparate Treatment

Yesterday, the panel’s task was made more difficult by the fact that the city did not challenge the disparate impact finding on appeal, only the disparate treatment finding and the resulting order. This posture, Judge Winter said, was causing confusion.

Brenner said the city was not arguing the disparate impact could never be appealed, just that it couldn’t be appealed now, and that the reason it was even being addressed was to answer the court’s questions on disparate treatment. “The trouble is, the court here combined the two so thoroughly,” she said.

Brenner also faulted Garaufis for accepting the plaintiffs’ statistical evidence and then ignoring or discrediting the city’s anecdotal evidence of the efforts and progress the Fire Department has made that would have provided a counterweight to his finding of discriminatory intent.

“Your position is that summary judgment on disparate treatment was improperly entered and you think the injunction must fail because of that?” Newman asked.

“Yes,” Brenner answered, but that wasn’t the only reason and she sharpened her attack on the judge’s plan for detailed oversight of the department.

When Newman asked whether all the good things the city claimed it was doing could balance out the continued use of the flawed exams, Brenner said, “That’s exactly right, you can’t just look at the one challenged practice.”

But Levy said the city had plenty of notice on summary judgment and failed to present evidence to counter his own. He said the judge “did a very careful job in a lengthy opinion that considered all the facts,” detailing how whites get hired “through the traditional path of family, friends and contacts,” and enter a Fire Department “committed to maintaining a racially-biased status quo.”

“But the issue is, did they get a trial?” Newman asked.

“There was no need for a trial, they didn’t rebut,” Levy answered.

The exchange continued until the proceedings were interrupted by a piercing “ping” and a loud voice over the courthouse public address system announcing the fire drill, for which the courtroom was not cleared.

When court resumed some 15 minutes later, Winter pressed Levy to sort out the confusion on disparate treatment versus disparate impact.

“We’re saying we can’t review the disparate impact claim but the disparate impact claim is the foundation of the disparate treatment claim,” Winter said, asking for clarification.

Levy said the city’s position on appeal was not his department, but told the court “the fact that the city did not challenge the impact claims tells this court something about the impact claim.”

As for Garaufis’ treatment of the city on summary judgment, Levy said the city could have offered evidence, “but they didn’t. They defaulted. This case is about default here.”

But Brenner insisted Garaufis shut the city down in treating the issue as one ripe for summary judgment and then limiting proof, which she said raised the issue of whether he could be an unbiased finder of fact.

Newman asked Brenner and other counsel what their positions would be if the panel found summary judgment was premature, the injunction was vacated and the disparate impact part of the case and the remedies to address it were kept with Garaufis, while the disparate treatment issue was reassigned to another judge for a bench trial.

Brenner, citing the tone Garaufis has used in some of his opinions, said the public perception would remain that he is not a neutral arbiter.

Another complication for the panel was that the U.S. government took no position on the broader remedial order below and, in the person of Lisa Stark of the Justice Department, refused to do so yesterday. Stark would only say that Garaufis had not only the authority, but also the duty, to issue an extensive order if he found a pattern of discrimination.

However, to be consistent, Stark said the government would offer no argument on disparate treatment.

The refusal to take a position drove Newman to distraction.

“Why is that? This is your lawsuit!” Newman exclaimed. “In your lawsuit, a judge has made a ruling which is subject to major dispute, and you don’t take a position?

Stark’s view, should the court be leaning toward reversing the remedial order, was that portions of the order directed at disparate impact remain in place, including provisions to protect victims from retaliation and ensure the production of documents relating to complaints.

Stark said Garaufis was “fair, open-minded, unbiased and impartial.”

But neither Stark nor Levy could directly answer Newman, who expressed concern that a judge who had already found “overwhelming” evidence of discrimination could begin again with a clean slate.

Newman asked Levy “do you know of any case where a judge has granted summary judgment on an issue and then the court sent it back to the same judge for a bench trial?”