City Must Reduce Exam Fees for a Diverse FDNY

BROOKLYN, N.Y. (CN) - New York City must charge less for applicants to take the next entry-level firefighter exam, as the proposed $54 fee, an 80 percent hike from the last exam, would disproportionately discourage black and Latino applicants, a federal judge ruled.

"The City, the United States, and Plaintiff-Intervenors have spent months working to design a test that all parties hope will fairly and reliably evaluate the abilities of all applicants for the position of entry-level firefighter - now is not the time to increase the barriers to those seeking to take it," U.S. District Judge Nicholas Garaufis wrote in a terse opinion. "The court orders the City to charge each applicant for Exam 2000 no more than $30.00 for the opportunity to take the test."

The new entrance exam was meant to put the city in compliance with a prior ruling, which found that the old test discriminated against minority applicants.

On May 21, 2007, federal prosecutors sued the city of New York, claiming that its examinations for entry-level firefighters excluded black and Latino applicants with screening that was not essential for the job.

Months later, the Vulcan Society, an organization representing black firefighters, and three individuals moved to join the suit in a class action.

The court found the city liable for disparate-impact discrimination in July 2009, and for engaging in a pattern or practice of intentional discrimination against black firefighter applicants by the following January.

The remedial phase of that litigation is heading to trial in August, and it was shaken up by the Supreme Court's recent decision to toss class-action gender discrimination claims against Wal-Mart. An alternate finding by the high court could have led to billions in damages for the 1.5 million women who have worked for the world's largest private employer.

In an earlier ruling, Garaufis wrote that the Wal-Mart decision "reduced to rubble more than forty years of precedent" that sustained black firefighters' unrelated claims for damages.

That decision decertified one of the firefighters' subclasses and denied two of their other motions for approximately $15 million in noneconomic damages such as loss of prestige, enjoyment of life, flexible scheduling and job security.

Georgia Pestana, the Labor & Employment Law Division chief of the New York City Law Department, praised the judge's ruling.

"The court conducted a very thorough analysis, in particular considering the U.S. Supreme Court's recent Wal-Mart decision," Pestana said. "We believe that Judge Garaufis appropriately decertified the class for noneconomic losses in light of that ruling."

A lawyer representing the firefighters said in a phone interview, however, that his clients' claims are still intact, and that the judge simply placed the decertified claims in a different category.

"It's not had a significant limiting impact upon relief," Robert Stroup of Levy Ratner P.C. told Courthouse News. "The judge went through a somewhat different analysis that he would have gone through before the Wal-Mart decision, but the bottom line after doing that analysis is that he still has certified the subclasses."

Stroup believes this may be the first U.S. District Court interpretation of the Wal-Mart ruling, and that the result shows that the much-publicized decision may have a limited effect on future class actions.

"On some level, it was a narrow decision because Rule 23, which governs class actions has three separate subdivisions," Straub said. "The Supreme Court's only dealt with one of those three subdivisions, and left untouched the other two."

Three separate trials for damages are slated for August.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit