United States v. City of New York
FDNY Employment Discrimination Case
Frequently Asked Questions
Please continue to check our website for updated FAQs.
I. Background Questions
II. Claims Process Questions
III. Compensatory Damages Questions (for black claimants only)
IV. Discovery Questions
I. Background Questions
Who are the parties in this case?
The Plaintiff in this case is the United States of America. The Department of Justice, on behalf of the United States, is authorized to bring suit to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), against state and local government employers.
The Vulcan Society and seven individual firefighter applicants, Roger Gregg, Marcus Haywood, Candido Nuñez, Jamel Nicholson, Rusebell Wilson, Kevin Walker, and Kevin Simpkins are Plaintiffs-Intervenors in this action. The Vulcan Society is an organization of black firefighters in the Fire Department of the City of New York (“FDNY”). The Vulcan Society and the individual firefighter applicants (referred to here collectively as the “Plaintiffs-Intervenors”) intervened on behalf of themselves and all black applicants for the position of entry-level firefighter who were harmed by the employment practices challenged in this lawsuit.
The Defendant in this case is the City of New York, a local government employer, which maintains a fire department (FDNY) and employs firefighters.
What claims did the United States bring against the City?
In May 2007, the United States filed suit against the City of New York in the United States District Court for the Eastern District of New York (case number 07-cv-2067). The United States alleged that since 1999, the City has discriminated against black and Hispanic applicants for the position of entry-level firefighter in the FDNY. Specifically, the United States challenged the City’s use of Written Exams 7029 and 2043, first administered in 1999 and 2002, respectively, in its hiring process for the position of entry-level firefighter. The United States alleged that the City’s use of these examinations had an unlawful disparate impact on black and Hispanic applicants and did not adequately determine who was or was not qualified for the job of entry-level firefighter.
On July 22, 2009, Judge Nicholas G. Garaufis ruled that the City violated Title VII. The Court found that the City’s use of the written examinations had an unlawful disparate impact on black and Hispanic applicants and could not, as the law requires, be justified as job-related and consistent with business necessity.
What claims did the Plaintiffs-Intervenors bring against the City?
In September 2007, the Court allowed the Plaintiffs-Intervenors to intervene in this case. The Plaintiffs-Intervenors joined the United States’ challenge of the two written examinations based on their disparate impact on black applicants, in addition to raising their own claim that the City intentionally discriminated against black applicants through its use of these examinations.
In January 2010, Judge Garaufis found the City liable for intentional discrimination against black applicants under Title VII, as well as state and local human rights law and the Fourteenth Amendment to the United States Constitution. On May 14, 2013, the Second Circuit Court of Appeals issued a ruling overturning the intentional discrimination finding and sending the intentional discrimination claim to a new district court judge for trial. The Second Circuit also upheld most of the remedies ordered by Judge Garaufis, including a Court Monitor to oversee the FDNY's hiring, and held that Judge Garaufis would maintain jurisdiction over financial and other remedies.
What is an “unlawful disparate impact”?
Title VII of the Civil Rights Act of 1964 prohibits not only intentional discrimination, but also employment practices that appear to be fair in form but are discriminatory in operation. A facially neutral employment practice, such as a written examination, that disproportionately excludes individuals from employment opportunities on the basis of their membership in a protected group, such as a particular race or national origin, and cannot be shown to be related to job performance, violates Title VII. As the Equal Employment Opportunity Commission has explained,
[An employer] can be found liable under Title VII if it uses a facially neutral practice that has the effect of disproportionately excluding members of a particular protected group. In such cases, which apply the disparate impact theory of discrimination, the individual alleging discrimination must prove ... that the challenged practice has a substantial and significant adverse effect on a protected group. If the individual can make this demonstration, the employer will be liable for discrimination unless it can show that the practice in question is job-related and consistent with business necessity. It is the employer's burden to make this showing, and a failure to provide any justification for the practice will likely result in a finding of liability. Even if an employer can demonstrate that a practice is justified, moreover, the individual will be given an opportunity to prove that there are other available practices that would also serve the employer's purposes, but with less impact on the protected group.
These facially neutral practices include the use of some written tests by employers, which have, intentionally or not, screened out people of a particular race, national origin or sex who are in fact qualified. Although using written tests to screen applicants may present the appearance of objective, merit-based selection, written tests often do not actually identify applicants who will be successful at performing a particular job. If appropriate analysis finds a test to be a poor assessment of an applicant’s ability to do a job, then the test stands in the way of identifying the best qualified candidates. As a result, it is in everyone’s interest to find a better measure.
In United States v. City of New York, Judge Garaufis found: (1) that the City’s use of two written examinations screened out black and Hispanic applicants at a significantly higher rate than white applicants; and (2) that the City’s use of these examinations did not predict which applicants would be best able to perform the job, which means that the use of these examinations was not job-related and consistent with business necessity. As a result, the Court found the City liable for disparate impact discrimination under Title VII.
Now that the City has been found liable, what happens next?
The Court has directed that the claims process begin so that it can identify which individuals who took the City's unlawful exams are eligible to receive money, a firefighter job, and/or seniority. The deadline to return a claim form was June 18, 2012.
The Court has issued a Relief Order which sets forth the different types of individual relief it will award as well as the criteria for determining whether an individual is eligible for an award. The Court held a fairness hearing on October 1-4, 2012, where it considered objections from individuals who might be affected by the proposed Relief Order. The Court overruled those objections when it entered the Final Relief Order.
Individuals that submitted claim forms received a letter in November 2012, indicating whether the United States preliminarily determined that they are eligible for relief. Each individual was assigned to a court-appointed Special Master, who reviewed the United States' preliminary determination and made a recommendation about each individual's eligibility to the Court. The Special Masters recently finished making those determinations in the summer of 2013. The Court also finished issuing eligibility determinations based on its review of the Special Master eligibility recommendations and any claimant objections. If you submitted a claim form and would like to know the status of your claim for relief, you may log onto your claimant portal at www.fdnylitigation.com or contact GCG at (866) 297-7120.
The Court has also issued an injunctive relief order directing the City to make changes to its discriminatory practices and their effects. Please continue to check this website for updates about the relief phase of the case.
Will the City change the way it selects entry-level firefighters in the future as a result of this lawsuit?
The parties worked jointly under the supervision of the Court to develop Exam 2000, a new selection procedure for entry-level firefighters. The City administered Exam 2000 to applicants for the entry-level firefighter position in March and April 2012. The Court approved the City's proposed use of Exam 2000 on September 28, 2012.
In addition to the development of a new selection procedure, the Court's injunctive relief order requires the City to make additional changes to its selection process. The City must make changes to its recruitment practices and to the process it uses to screen candidates who pass the entry-level firefighter examination. A Court Monitor is overseeing the City's compliance with the order.
What kinds of individual relief may be available to remedy the City’s discrimination?
The Court will award money, firefighter jobs, and seniority to individuals who were harmed by the City's discriminatory practices. You may refer to the Court's Final Relief Order for more details about the individual relief available. Check this website for updates about the relief phase of the case.
Who may be able to receive individual relief?
The Court will determine whether or not an individual who applies for relief was subjected to the City’s discriminatory practices, and thus, able to receive relief. The Court finished making its eligibility determinations for individuals who submitted claim forms. If you submitted a claim form, you should receive a copy of your court decision in the mail. You may also log onto your claimant portal at www.fdnylitigation.com to see the status of your claim.
Individuals eligible for relief may include black and Hispanic applicants who took entry-level firefighter Exam 7029 (first administered in 1999), Exam 2043 (first administered in 2002), or both. This includes individuals who the City hired as entry-level firefighters (if their hiring was delayed due to the City’s discriminatory practices), as well as those the City did not hire as entry-level firefighters. For more information, please see the Final Relief Order.
If I took Exam 6019 (first administered in 2006), am I able to receive individual relief in this lawsuit?
No. Individuals who did not take either Exam 7029 or Exam 2043 between 1999 and 2006 are not eligible to receive individual relief in this lawsuit. If you feel you were discriminated against because of your race or national origin as a result of taking one of the City's written examinations for entry-level firefighter, you should consult with an attorney (at your own expense) to determine your legal options or you can file a charge of discrimination with the Equal Employment Opportunity Commission. The Department of Justice and the Plaintiffs-Intervenors have not filed suit against the City with respect to any entry-level firefighter exams other than Written Exams 7029 and 2043.
II. Claims Process Questions
Who are the Special Masters?
The Special Masters are four attorneys the Court has appointed to review individual claimants' claims to see who is eligible for different kinds of relief. Everyone who submitted an initial claim form has been assigned to a specific Special Master.
What is the process for considering my claim?
In 2013, the Special Masters began reviewing the United States' preliminary eligibility determinations and making recommendations to the Court regarding whether individual claimants are eligible for priority hiring, monetary damages and other relief.
The Special Masters have made eligibility recommendations for all individuals who submitted claim forms. Please note that all Special Master eligibility recommendations must be approved by the Court. The Court finished issuing eligibility determinations based on a review of relevant materials, including reviewing the Special Master eligibility recommendations and claimant objections. You will be notified by mail of the Court's eligibility determination. If you submitted a claim form and would like to know the status of your claim for relief, you may log onto your claimant portal at www.fdnylitigation.com or contact GCG at (866) 297-7120.
When will I receive my monetary award?
We cannot predict now when monetary distributions will occur. Before monetary awards can be distributed, a number of factors that will impact the amounts of the awards must be determmined. For example, the Special Masters may ask some claimants to provide additional information, which they will use to determine the amounts of the awards. The process of gathering additional information began during the summer of 2013.
How are monetary awards being calculated, and do you know the amount of my award?
Several factors or variables will determine the amount of any cash award you might receive. (For more information, please refer to Docket 888. If you receive a request for information from the Special Master, please provide the requested information so that the Special Master assigned to your claim can calculate your monetary award. Your failure to respond to a request for information within the timeframes set by the Special Master could result in the denial of your claim for relief. Therefore, it is very important that you respond to all requests for information by the deadlines that are set. At this time, because the Special Masters are still collecting information from claimants, it is impossible to estimate the amount of any individual claimant's award.
Black claimants may also be eligible to receive compensatory (also called "noneconomic") damages. For more information, please refer to Docket 888.
I submitted a claim form seeking priority hiring relief, and I'm currently participating in the priority hiring process. Is it possible to delay any portion of the priority hiring process, such as the CPAT or the medical exam, or even my appointment to the FDNY Fire Academy?
Questions about the CPAT should be directed to the City's Department of Citywide Administrative Services (DCAS) at firstname.lastname@example.org. If you have questions or concerns about the medical exam contact the Fire Department's Bureau of Health Services at Fire Department of New York, Chief Medical Officer, Bureau of Health Services, Room 206, 9 Metro Tech Center, Brooklyn, NY 11201. If you have any questions or concerns about your background investigation contact your investigator or call (718) 999-2179 or send an email to CID@fdny.nyc.gov.
If you have any questions or concerns about the response you get after you contact the people listed above, you may contact the U.S. Department of Justice by emailing email@example.com or calling (800) 556-1950, selecting mailbox option number 7, and leaving a message.
I submitted a claim form seeking priority hiring relief. If I am successfully appointed to the FDNY Fire Academy, what will my starting salary be?
If you are ultimately hired as a priority hire and begin the FDNY Fire Academy, you will receive a higher salary, as if you had been hired from your original exam. If you took Exam 7029, you will receive the salary of someone who was hired on February 2, 2003. If you took Exam 2043, you will receive the salary of someone hired on June 11, 2006.
What additional benefits are successful priority hires entitled to as a result of this lawsuit?
If you are ultimately hired as a priority hire and begin the FDNY Fire Academy, you will receive retroactive seniority. For a definition of retroactive seniority and what it covers, please see pages 14 - 15 of the Final Relief Order. You will also receive retroactive pension benefits.
What additional benefits are eligible Delayed-Hire Claimants entitled to as a result of this lawsuit?
If you are ultimately determined to be eligible for relief as a Delayed-Hire Claimant, you will receive retroactive seniority. You will also receive retroactive pension benefits if you made the employee contributions to the Pension Fund.
I am a Delayed-Hire Claimant. Why is my presumptive hire date after my actual hire date?
The presumptive hire date for each exam is the middle date of hire for all firefighters appointed from each exam. For Exam 7029, the median hire date was February 2, 2003, and for Exam 2043, the median hire date was June 11, 2006. The Court determined that all those hired after the median hire date would receive retroactive seniority dating back to February 2, 2003 for those who took Exam 7029 and June 11, 2006 for those who took Exam 2043. Delayed-Hire Claimants who were hired before the median hire date will not receive retroactive seniority, but they will of course not lose any seniority. In other words, those whose hires were delayed the most will receive retroactive seniority back to the median or presumptive hire date, but the presumptive hire date has no effect on your seniority if you were hired before February 3, 2003 for Exam 7029 or June 11, 2006 for Exam 2043. The presumptive hire date also has no effect on your eligibility for back pay or on back pay calculations.
I submitted a claim form. What is my status?
If you submitted a claim form and know your claimant number, you may check the status of your claim by logging onto your claimant portal at www.fdnylitigation.com. You may also check your status by calling GCG at (866) 297-7120.
If you submitted a claim form, you should have received a letter from the United States Department of Justice with your preliminary eligibility determination. After that, you should have received a letter with the Special Master's recommendation about your eligibility for relief. The Court is currently considering the Special Masters' eligibility recommendations and claimant objections. The Court has finished making its eligibility determinations, and a copy of your eligibility determination was mailed to you.
If you submitted a claim form to the Department of Justice and GCG is not able to tell you your status, or if you have additional questions, you may contact the Department of Justice by emailing firstname.lastname@example.org or calling (800) 556-1950, selecting mailbox option number 7, and leaving a message.
Has a Special Master been appointed to my claim? If so, may I contact the Special Master directly?
The four Special Masters have requested that you contact the Claims Administrator with any questions you have about the status of your claim for relief. You can reach the Claims Administrator by emailing questions@FDNYlitigation.com or calling (866) 297-7120. You may also contact the DOJ with any concerns you may have regarding this case.
I submitted an objection to the United States' preliminary eligibility determination regarding my claim for relief. What is the status of my objection?
If you submitted an objection to the United States' preliminary eligibility determination, the Special Master took your objection into account (along with your claim form and any other materials you submitted) when making your eligibility recommendation. You should already have received a Report and Recommendation from your Special Master regarding your eligibility for relief in this case.
I submitted an objection to the Special Master's Report and Recommendation regarding my eligibility for relief. How will I be informed of the Court's decision?
The Claims Administrator will provide you with a copy of the Court's final decision regarding your eligibility for relief. The Court's order is also available on your claimant portal at www.fdnylitigation.com.
How did the May 14, 2013 decision by the United States Court of Appeals for the Second Circuit affect my claim for relief?
It did not affect your claim for relief. On May 14, 2013, the United States Second Circuit Court of Appeals issued a decision on an appeal that the City filed regarding issues that do not have any impact on the availability of awards for back pay, lost fringe benefits, non-economic damages, retroactive seniority, and firefighter job offers for eligible claimants. The Second Circuit's decision primarily dealt with Judge Garaufis's Injunctive Relief Order, and the Second Circuit affirmed the appointment of a Court Monitor and most of the other provisions of the Injunctive Relief Order. The Second Circuit reversed two findings: (1) that the City intentionally discriminated against black applicants, and (2) that former Fire Commissioner Nicholas Scoppetta was immune from being sued for intentional race discrimination. The Second Circuit determined that the intentional discrimination claims against the City and Commissioner Scoppetta must be decided at a trial, which may take place this fall. The Second Circuit's decision has no effect on the relief to be awarded to claimants according to the Final Relief Order. So, eligible claimants can still expect to receive cash awards and, if they are qualified, firefighter job offers.
If the Court finds that I am not eligible for priority hiring relief but I went through the firefighter hiring process, will the FDNY still hire me as a priority hire?
No. In order to be hired as a priority hire, you must (1) be found eligible for priority hiring relief by the Court, and (2) successfully make it through the FDNY's firefighter hiring process. Only claimants who the Court determined are eligible for priority hiring relief and who pass every step in the FDNY's hiring process can be hired by the FDNY as priority hires.
If the Court determined that you are not eligible for priority hiring relief, the only way you could become an entry-level FDNY firefighter is if you applied and were hired through one of the FDNY's regular hiring processes (e.g., if you took Exam 2000 in early 2012 as part of the FDNY's open-competitive hiring process or, if you are a current FDNY EMT and took Exam 2500 in early 2012 as part of the FDNY's promotional hiring process).
Why was I allowed to go through the FDNY's firefighter hiring process if I am not eligible for priority hiring relief?
In order to be hired as a priority hire, you must (1) be found eligible for priority hiring relief by the Court, and (2) successfully make it through the FDNY's firefighter hiring process. If you were preliminarily determined by the United States to be ineligible for priority hiring relief, you were informed that you could only be hired as a priority hire if the United States was incorrect, but you were permitted to participate in the hiring process in order to preserve your claim for priority hiring relief.
Because the Court did not make its eligibility determinations until after the FDNY's hiring process began, some claimants who the Court ultimately determined were not eligible for priority hiring relief went through the FDNY's hiring process. Even if you passed every step in the FDNY's hiring process, if you were determined by the Court to be ineligible for priority hiring relief, you cannot be hired as a priority hire.
Will my information be kept confidential?
All information submitted through this website will be maintained and utilized in accordance with applicable federal law, including the Privacy Act of 1974, 5 U.S.C. § 552a, et seq. To the extent any information submitted is protected by the Privacy Act, that information would not be used or disclosed except as permitted under the Privacy Act. The United States will not file your social security number in any public document.
What if I have additional questions?
If you have questions about the status of your claim for relief, please contact the Claims Administrator by toll-free telephone at (866) 297-7120, or by email at questions@FDNYlitigation.com.
If you have additional questions, call the Department of Justice at (800) 556-1950, select mailbox option number 7, and leave a message.
If you have questions regarding the Plaintiffs-Intervenors' claims, call the Plaintiffs-Intervenors at (212) 627-8100.
Please do not contact the court for information about this case. Court personnel will not be able to answer any questions about your eligibility for relief or the process of obtaining relief.
III. Compensatory Damages Questions (for black claimants only)
What kinds of relief may be available (in addition to priority hire, back pay, and lost fringe benefits)?
If you are a black claimant and are found eligible for relief in this case, you may also be eligible for a monetary award for harms that resulted from your not being appointed as an FDNY firefighter. The Court has ordered that compensatory damages (also known as noneconomic damages) be awarded to black claimants who can show that they have suffered any of the following as the result of the City's failure to hire them as a firefighter:
- Concrete emotional harm, potentially including depression, sleeplessness, anxiety, humiliation or shame;
- Inconvenience, such as being unemployed for some time or having to take a particularly inconvenient job or combination of jobs;
- No longer being able to take part in an activity or activities that they previously enjoyed before experiencing the City's discrimination;
- Damage to their personal or professional reputation that has affected their future earning capacity;
- Certain other injuries that arose from the City's denial of the firefighter job based upon a black applicant's test score.
If I am a black claimant, how can I submit a claim for compensatory damages?
The Claims Administrator will mail all black claimants detailed instructions on how to submit a claim for compensatory damages, along with a medical release form (if applicable) and questions from the City (the City's "discovery requests"). Those instructions will include all deadlines for filing. Further information will be posted here as soon as it is available.
You may also contact a lawyer for help with your claims. For assistance at no cost to claimants, delayed-hire claimants (black applicants who were eventually hired by the FDNY) may seek representation from the Center for Constitutional Rights, and non-hire claimants (black applicants who were never hired by the FDNY) may seek representation from Levy Ratner, P.C.
Levy Ratner: (212) 627-8100 x269/ email@example.com
Center for Constitutional Rights: (212) 614-6494/ firstname.lastname@example.org
More information is available at www.fdnycase.com/compensatory-damages.
What are the next steps once I submit my claim for compensatory damages?
After you submit your Compensatory Damages Claim Form, along with your medical release (if applicable) and answers to the City's discovery requests, the City will have an opportunity to follow up with you for more information.
The Special Master assigned to your case, and ultimately the Court, will decide the amount of your compensatory damages award. Therefore, the Special Master will have an opportunity to ask for more information from you, and may also hold a hearing. If the Special Master assigned to you holds a hearing on your claim, you will be able to present a case as to why you should receive compensatory damages, and the City will have a chance to respond.
Are compensatory damages separate from any back pay award?
Yes. You may be eligible for back pay even if you do not file a claim for compensatory damages. Your eligibility for back pay is not affected by whether you file a claim for compensatory damages.
Are compensatory damages separate from priority hiring relief?
Yes. Your eligibility for priority hiring relief is not affected by whether you file a claim for compensatory damages. You may be eligible for priority hire even if you do not file a claim for compensatory damages. Filing a claim for compensatory damages does not make you ineligible for priority hire.
Why are Hispanic applicants not able to claim compensatory damages?
This case began with the United States Department of Justice filing a complaint against New York City, alleging that the City's use of certain firefighter exams disproportionately excluded black and Hispanic applicants from the FDNY. Compensatory damages are not available under the claims brought by the United States. The Vulcan Society - the association of black firefighters within the FDNY - and three individual applicants (called the "intervenors") later joined the case on behalf of black applicants. The intervenors joined the DOJ's original claims, and also made specific requests of their own, including compensatory damages. No group similar to the Vulcan Society joined the case on behalf of Hispanic applicants. As a result, compensatory damages are available only for black applicants.
I received the City's discovery requests dated July 12, 2013. Why do I need to respond to these requests for information?
If the Special Masters and/or the Court have deemed you eligible for a monetary award, GCG mailed you the City's discovery requests on July 12, 2013. If you received the City's discovery requests and you do not respond to these requests by the deadline (which for most claimants is September 4, 2013), you could lose your right to receive a cash award for back pay. Respond to the City's discovery requests so you don't miss out on your opportunity to receive thousands of dollars in back pay!
If the Special Masters and/or the Court have deemed you eligible for a monetary award and you have not yet received the discovery requests, please view the discovery requests through your Claimant Portal at www.fdnylitigation.com or contact GCG at email@example.com or (866) 297-7120 to ask that the discovery requests be re-mailed to you.
You must respond to the City's discovery requests because the Court has permitted the City to seek this information from you to help determine the precise amount of any cash award you may receive. The Court has allowed the City to make the July 12 requests for two reasons. First, the Court permitted the City to gather information from all claimants about their address history so that the City can determine whether claimants lived in places where fire departments other than the FDNY were hiring. If those other fire departments had open positions that were substantially equivalent to the FDNY firefighter position, the City may be able to argue that a claimant's back pay award should be reduced if he unreasonably failed to apply for that substantially equivalent firefighter position. Second, the Court has permitted the City to ask a subset of claimants whether they earned more money than their Social Security Administration (SSA) Earnings Statements reflect during the period that their back pay award is intended to cover. The subset of claimants who received those requests were claimants who earned less than the federal poverty guidelines during one or more years of the period that their back pay award is intended to cover. The City has been given permission to seek this information because the amount that a claimant earned during the period that his back pay award is intended to cover is one factor used to determine that claimant's individual back pay award. For more information about how individual back pay awards will be calculated, please see the Court's Order Regarding Distribution of Back Pay (Dkt. 888) and the Court's Order Regarding Discovery and Evidence at Individual Hearings (Dkt. 952).
Who can I call for help in responding to the City's discovery requests?
If you have any questions about the discovery requests, please contact the U.S. Department of Justice via email at firstname.lastname@example.org or call (800) 556-1950, select mailbox option number 7, and leave a message.
Black claimants who were not hired as FDNY firefighters may also contact Levy Ratner at (212) 627-8100. Black claimants who were hired as FDNY firefighters may contact the Center for Constitutional Rights at (212) 614-6445.
I did not receive the City's discovery requests dated July 12, 2013. What should I do?
If the Special Masters and/or the Court have deemed you eligible for a monetary award, GCG mailed you the City's discovery requests on July 12, 2013. If you are eligible for a monetary award and you have not yet received the discovery requests, please view the discovery requests through your Claimant Portal at www.fdnylitigation.com or contact GCG at email@example.com or (866) 297-7120 to ask that the discovery requests be re-mailed to you.
If the Special Masters and/or the Court have determined that you are not eligible for a monetary award, GCG did not mail you the City's discovery requests.
If you do not know whether the Special Masters and/or the Court have determined that you are eligible for a monetary award, please log on to your claimant portal at www.fdnylitigation.com or contact GCG at firstname.lastname@example.org or (866) 297-7120 to find out whether you are eligible for monetary relief.