FDNY Ordered to Pay Up to $128M in Damages

In a long anticipated ruling, Federal District Court Judge Nicholas Garaufis has ordered the city of New York to pay damages to past minority applicants to FDNY a total of up to $128,696,803. The ruling is part of the 2007 discrimination suit brought by the United States and the Vulcan Society alleging decades of discriminatory hiring.

The total amount that claimants could receive will likely be less than the full $128M, because it will be offset by any income that the claimants actually made during the interim years.

Tensions continue to increase between the city and Judge Garaufis. City officials have publically alleged that the judge has abandoned his role as a neutral and become an advocate for the plaintiffs. They have even asked an appellate court to remove Judge Garaufis from the case. In his ruling, Judge Garaufis appointed four special monitors to oversee the awarding of back pay, and ruled that hearings may not be delayed while the city appeals.

Here is a copy of the decision. Damage Order.  It is 64 tortuous pages.  

In the decision, the judge spent considerable time reviewing the facts leading up to his ruling, including an in depth discussion of the statistical disparity of the (a) pass-fail rates and (b) hiring rates of black and Hispanic candidates. This data led him state: “The court concluded that the evidence for a prima facie case of disparate impact was “overwhelming.””

In stark contrast to the judge’s in-depth statistical analysis of evidence tending to prove race discrimination, the court in just one paragraph summarized the city’s arguments, which were rejected as “nothing more than metaphysical doubts about the nature of statistical evidence that were unsupported in law.” The court also summarily rejected the city’s “business necessity defense”… that written examinations are necessary and written examinations inherently tend to disfavor minority applicants.

Missing from the discussion was any mention of job requirements or applicant qualifications. In other words there continues to be an implicit assumption that, on average, the white applicant pool was equivalent in terms of aptitude to the black candidate pool and the Hispanic applicant pool, and that it was the exam alone that caused the statistical difference between what otherwise are equally qualified groups.

The willingness to accept that assumption seems to be at the heart of much of the out of court rhetoric and debate over the decision. Yet that issue continues to be overlooked in the court’s analysis.

The remainder of the decision focuses of the minutia of how back-pay should be calculated, the identification of various sub-groups among the minority candidates, and the procedure to be followed by the special masters in evaluating and awarding damages. Its a tough read for firefighters and lawyers (and firefighter-lawyers) who lack a degree in statistics…

Here is more on the story.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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