New York City has been denied a stay pending appeal of parts of an order Eastern District Judge Nicholas Garaufis (See Profile) issued to remedy past hiring discrimination at the New York Fire Department. The city’s Law Department had asked Garaufis for a stay while it waits for a decision from the U.S. Court of Appeals for the Second Circuit on its appeal from Garaufis’ finding of disparate treatment of minority applicants—and the sweeping remedies ordered by the judge to cure it in 2011.
Oral arguments in the appeal in United States v. Bloomberg, 11-5113-cv, were heard by a three-judge panel at the circuit in June 2012 (NYLJ, June 27, 2012), with Law Department Senior Counsel Deborah Brenner objecting that Garaufis is “convinced” that the Fire Department houses “a bunch of intentional discriminators” and the judge should be removed from the case. The city sought a stay of all remedial measures save those concerning supervision of the development of its civil service exams for entry-level firefighters.
But yesterday, Garaufis said he doubted the city, which he faulted for waiting 13 months to ask for a stay, would succeed at the circuit in having his disparate treatment ruling and order overturned. The judge was also confident that he has the authority to remedy past bias, saying that the city’s “failure even to contest this authority suggests to the court that its position stems more from its refusal to accept the full implications of its past wrongs than it does from disagreement over the application of the law.”
The city said it will now seek a stay with the circuit. “The court monitor’s involvement in the details of the hiring process is unnecessary and could result in delays. Until our appeal is resolved, the city will continue to incur substantial and unnecessary costs—more than $1.7 million to date—which will only continue to grow,” Georgia Pestana, chief of the Law Department’s labor and employment division, said in a statement.