FDNY Applicant Loses Challenge to Physical Abilities Test

An applicant to FDNY who failed the candidate physical abilities test three times, has lost his race discrimination and retaliation lawsuit to be appointed to the department.

Kevin Walker, 47, who was a priority hire and named plaintiff in the Vulcan Society’s class-action race discrimination suit against the city, claims the PATs he failed in 2013 were unfairly administered in retaliation for his involvement in the earlier case. Walker, who received $22,500 from the Vulcan Society’s $100 Million settlement, filed suit in Manhattan Supreme Court in 2016.

On December 14, 2018, Justice Carmen Victoria St. George rejected Walker’s claims ruling that because the eligibility list expired, she lacked jurisdiction to order him hired even if he was to prevail on the merits. From the decision:

  • In connection with his application, petitioner [Walker] had to take the Candidate Physical Ability Test (the CPAT), which consists of eight parts, on May 20, 2013.
  • Respondents [City/FDNY] allege that petitioner failed the CPAT on that date because, according to the proctor, petitioner “fell or dismounted three times” during the warmup for the stair climb portion of the test.
  • Respondents also note that petitioner had failed the stair climb when he took a practice test earlier that month.
  • Subsequently, respondents realized that the May 20 disqualification was due to proctor error.
  • Accordingly, petitioner retook the CPAT two days later with a different proctor supervising the test.
  • On May 22, the lead proctor found that petitioner did not complete all eight parts of the test within ten minutes and twenty seconds, as required. Instead, petitioner was in the process of performing the seventh exercise (called “Rescue”) when, according to the event proctor, his time expired.
  • Petitioner notes that the event proctor for this exercise was the same individual who had failed him during the stair climb on May 20.
  • Petitioner alleges that the event proctor’s determination was retaliatory, due to petitioner’s earlier complaint. In addition, the petition alleges that petitioner “was being further retaliated against by this examiner and the NYCFD for being a lead plaintiff in the Vulcan suit”.
  • Petitioner appealed this decision to the City Civil Service Commission.
  • The CSC denied petitioner’s appeal in a letter dated November 30, 2015.
  • The decision found that petitioner did have three opportunities to complete the CPAT — the practice test on May 14, 2013, the May 20, 2013 test, and the May 22, 2013 test.
  • The basis of petitioner’s appeal, CSC found, was that “the proctor was biased against him for having disputed the results of his May 20, 2013 disqualification based on the faulty administration of the CPAT test on that date”.
  • It noted that Department of Citywide Administrative Services (DCAS) had cross-moved to dismiss the appeal because “the proctor had no discretion in determining whether or not [petitioner] failed to complete all eight events in the required time”.
  • After careful consideration, the Court dismisses the proceeding.
  • Despite the Court’s belief that CSC should have heard petitioner’s appeal, “[a]n eligible list that has been in existence for one year or more shall terminate upon the establishment of an appropriate new list”.
  • For this reason, petitioner’s interest as an eligible applicant “is coextensive with the life of that list”.
  • “[A petitioner] whose name appears on a now-expired civil service list, is no longer entitled to be hired . . . notwithstanding that he was improperly declared to have been ineligible for the job”.
  • This principal is a long-standing one. Indeed, the Court of Appeals noted in 1950 that “the appointment of any of the petitioners after the expiration of the eligible list was a legal impossibility”.
  • The [New York Court of Appeals] found that the rule must be strictly applied because the appointment of an applicant from an expired list is unconstitutional.
  • The eligibility list cannot be revived where, as here, the expiration was not arbitrary and there has been no argument or evidence indicating respondents caused the list to expire in bad faith.

Here is a copy of the decision: Matter of Walker v City of New York_ 2018 N.Y. Misc. LE

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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