Black firefighters and their lawyers.
Black firefighters and their lawyers discuss the settlement of their seven-year suit against the City of New York at the law offices of Levy Ratner yesterday. Left to right: John Coombs, president of the Vulcan Society; lead counsel Richard Levy, and Darius Charney, senior attorney for the Center for Constitutional Rights. (NYLJ/Rick Kopstein)

New York City, the federal government and an intervening group of black firefighters and applicants have reached an agreement in principle to settle the last pending claims of a hard-fought class action suit alleging intentional discrimination within the New York City Fire Department.

The settlement announced Tuesday will avert a bench trial on a claim that the fire department engaged in a pattern or practice of “disparate treatment” in employment.

The city will pay about $98 million to some 1,500 black and Hispanic firefighters and applicants who were either not hired or had their hiring delayed when they got low scores on written tests in 1999 and 2002. Mayor Michael Bloomberg and his corporation counsel, Michael Cardozo, who steadfastly denied claims of bias, had aggressively fought the lawsuit filed in 2007.

But less than three months after Bloomberg left office, Mayor Bill de Blasio welcomed the agreement. The new mayor said he was “committed to ensuring every New Yorker who seeks to take on this heroic role [as a firefighter] has a fair opportunity to join the ranks. This administration is fully committed to promoting diversity and equal access in every sector across our five boroughs, and this settlement will move New York City one step closer to this goal.”

Corporation Counsel Zachary Carter called the pact an “historic step forward” that would “rectify past harm and increase diversity in FDNY’s ranks. This settlement will not only compensate those affected by the FDNY’s civil service exams, but also ensure the FDNY has the capacity, support and structures in place to build a stronger and more diverse department in the years to come.”

Tuesday’s settlement news followed weeks of negotiations. Other elements of the pact include:

• “Best efforts” to recruit black test-takers for the firefighters exam, in numbers that closely track the city’s black labor market.

• the creation of an executive-level chief diversity and inclusion officer who will also appoint a uniformed member as a diversity advocate tasked with airing concerns about fairness, transparency and respect for firefighter candidates during the hiring process and for probationary firefighters.

The agreement in principle in U.S. v. City of New York, 13-cv-3123, will be incorporated into a consent decree. The agreement requires judicial approval after a fairness hearing, which will be held by Eastern District Judge Nicholas Garaufis (See Profile).

Additional details remain to be determined.

More details, such as how the money will be distributed, have yet to be determined.

Fire Commissioner Salvatore Cassano said in a statement, “We’re pleased this case has been settled and look forward to our next firefighter exam when we hope to attract even more people of color than the 19,000 who took the last test in 2012.”

U.S. Associate Attorney General Tony West called the agreement “the result of the collective efforts of the Justice Department, the private plaintiffs, and the city of New York,” adding that the settlement would “compensate victims of discriminatory hiring practices” and also establish “an entry-level hiring process that should more accurately identify firefighter candidates who are best qualified to do the job.”

A Change of the Guard

At a press conference, Richard Levy of Levy Ratner, lead counsel for plaintiff-intervenors—The Vulcan Society, a group of black firefighters, and individual applicants—said the change of the guard at City Hall was critical to the successful negotiations.

Working with the de Blasio administration, and particularly with Carter, was as different as “night and day” from their predecessors, said Levy.

“This settlement was very much about a new administration that was willing to talk about the problem as a real problem that existed and had to be confronted, not just as an issue to defend,” Levy said. “And that was a tremendous difference when we sat down with the new corporation counsel and he asked us what our proposals were and addressed them as legitimate goals and ends for our clients and the black people and Hispanic people of New York,” Levy said.

“The Bloomberg administration fought this case unnecessarily and losingly for all of these many years while the meter on back pay was running, and today we’re looking at a $98 million award,” said Levy.

The plaintiffs were also represented by the Center for Constitutional Rights and Scott + Scott.

Vulcan Society president John Coombs said he was “pleased” with the settlement, though it represents just the beginning of the need for a “culture change” toward minorities within the fire department. He also called for the de Blasio administration to replace the current fire commissioner.

Cassano is a Bloomberg holdover.

“What we need beyond this settlement… is a commissioner who understands the dynamic and the challenges ahead,” Coombs said.

Cardozo, now a partner at Proskauer Rose, declined to comment on the settlement.

But the settlement did not win praise in all corners.

Keith Sullivan of Sullivan & Galleshaw represents Merit Matters, an organization with active and retired firefighter supporters that backed the Bloomberg administration’s fight against the suit.

“This settlement represents a deplorable branding of New York City and the FDNY as racists,” Sullivan said. “Ninety-eight million for a case that had no merit and no supporting proof means the mayor has committed a travesty on New York City taxpayers,” said Sullivan.

Asked about a possible challenge to the settlement, Sullivan said the organization is “exploring all its options right now.”

In bringing the suit, the federal government argued the FDNY’s use of two written tests in which blacks and Hispanics fared poorly violated Title VII of the Civil Rights Act of 1964, which outlaws employment discrimination based on race, color, religion, sex and national origin.

Though blacks made up about one-quarter of the city population, they accounted for 3.4 percent of the city’s fire department in 2007.

The Vulcan Society and individual plaintiffs successfully petitioned to intervene.

In July 2009, Garaufis granted summary judgment to the plaintiffs on the question of disparate impact (NYLJ, July 23, 2009).

In a January 2010 ruling, Garaufis turned to the claim of disparate treatment and granted summary judgment to the plaintiff-intervenors. The federal government was not a party to the disparate treatment claim.

In his disparate treatment ruling, Garaufis called discrimination a “persistent stain on the Fire Department’s record” (NYLJ, Jan. 14, 2010). In October 2011, Garaufis issued a remedial order that, among other things, appointed a court monitor “for at least 10 years” (NYLJ, Oct. 6, 2011).

He appointed Mark S. Cohen of Mark Cohen of Cohen & Gresser to the role, giving him a range of authority, including supervision of the hiring process.

In Cohen’s most recent report, submitted to Garaufis on March 10, he noted the fire department’s “most diverse class” graduated from the fire academy in December, with 62 percent of the graduates being people of color.

Last May, a divided panel in the U.S. Court of Appeals for the Second Circuit overruled Garaufis on his findings of disparate treatment, but affirmed “principal components” of the remedial order (NYLJ, May 15, 2013).

The circuit removed Garaufis from the remand on the disparate treatment claim, which was assigned to Judge Raymond Dearie (See Profile).

The circuit, however, kept Garaufis in control of the portion of the case connected to the unchallenged matter of disparate impact. The circuit also trimmed back Cohen’s tenure and responsibilities.

On Tuesday, Carter submitted a letter to Dearie and Garaufis asking Dearie to rule that implementation of the settlement surrounding the disparate treatment claim be supervised by Garaufis.

Carter, on behalf of the parties, observed that when the circuit reassigned the disparate treatment claim, it said only the liability phase was to be handled by a different judge and left it to the district court to determine “the appropriate supervision role or roles of Judge Garaufis and/or whichever judge is assigned to preside at the trial of the liability phase of the disparate treatment claim.”

The letter added that most of the relief connected to the disparate treatment claim “will be encompassed within areas that are under Court Monitor Cohen’s supervision. Consequently, all the parties agree that it is more efficient for Judge Garaufis, to whom Court Monitor Cohen reports, to have jurisdiction over the settlement of the disparate treatment claims.”

Later in the day, Dearie so ordered the request.