Brooklyn Federal Court, The Honorable Judge Nicholas Garaufis Presiding
August 1, 2011
The first witness to take the stand, shortly after 10 a.m. on a humid August Monday inside the marble Brooklyn courthouse at Cadman Plaza, was the FDNY’s director of the candidate investigation unit, Dean Tow. As he sat in the witness seat, he found himself facing a room full of reporters, firefighters, curious onlookers and more lawyers than most people see in a lifetime. The city law department sent Pat Miller, one of its toughest, most experienced litigators to handle the bench trial, and she brought a team with her. The plaintiffs had a trio of lawyers at their table: Dana Lossia and Richard Levy from Levy Ratner, plus Darius Charney from the Center for Constitutional Rights. Vulcans John Coombs, Michael Marshall and Duery Smith were also front and center. Behind them all sat a row of lawyers from the Department of Justice. They had no stake in this part of the case, having refused to get involved in the Vulcans’ intentional discrimination claim. But they came to watch the proceedings nonetheless.
Levy started things off by giving Judge Garaufis a rapid précis of the points his team planned to attack over the next few days, starting with Tow and the alleged bias within the background checks used by the FDNY. Tow had been with the department since 1999, so he’d handled backgrounds on candidates for both test 7029 and 2043—and actually 6019 as well. Levy started out with some basic questions about what would disqualify a candidate right away: being too young or too old, not having a valid driver’s license, getting a dishonorable discharge from the military or having a felony conviction. Any one of those things would halt the process immediately, Tow said. The only exception for a felony would be if a candidate got a certificate of good conduct through the state parole office. That candidate might get sent to the Personnel Review Board (PRB) to get a second look, Tow said. An applicant with a clean record was considered a certified candidate, and Tow’s office would send out a packet of forms to fill out. The packet would include a date for the candidate to show up at FDNY headquarters for the next step in the intake process.
“And if the candidate didn’t show up?” Levy asked.
“Our current process is if we get no response, the person doesn’t show or the packet comes back as undeliverable, we then take a list of those people and we turn them over to our recruiting unit and they attempt to make further contact with the candidate to say, ‘Please contact the CID and reschedule your interview,’” Tow testified.1
“Prior to that, and I think it was prior testimony of yours, at a deposition, you said that if you did not get a response, that was the end of the matter and the person was recorded as not reporting. Is that right?” Levy asked.
“Yes,” Tow said. Asked if he was aware that black candidates proportionally didn’t respond in larger numbers than whites, Tow said no.
“Why was there no follow up then?” Levy asked, about exams 7029 and 2043.
“We only receive from the Department of Citywide Administrative Services . . . the candidate’s name and address and so on. When we mailed a packet to them, if in fact they didn’t respond or didn’t contact us and say, my address has changed for whatever reason, there was—because we don’t go to the field, all my investigators work strictly from our office—there was no further information to check and verify and then reach out again,” Tow explained.
Under further questioning from Levy, Tow said the process was the same for all candidates on the list, from the top to those grouped lower down. Generally, for every three applicants vetted, one got on the job. The investigators routinely called in about 1,000 applicants when they wanted to fill 300 spots, Tow said.
“Is it also the case that not infrequently people who are being called, particularly lower down on the list, may have actually taken the exam and filed their address at the time three or four or sometimes even five years before you send out your packet?” Levy asked. When Tow answered affirmatively, he repeated his earlier question. “Presumably these people have gone on to other jobs and other work and on with their lives. Why was no effort made to reach these folks knowing that such a long time may have elapsed?”
“If we had additional information, we could certainly reach out to them with that. But if we didn’t have any additional information, there was nothing new to go on in terms of finding them,” Tow said.
“But was any effort made to find additional information that you are aware of?”
“No,” Tow said.
Levy went on to talk Tow through the investigation process, which included applicants bringing in filled-out forms on the specified date, paying $75 for fingerprinting, submitting employment history for independent verification and turning over any arrest records. As part of their character assessment, the candidates were allowed to write a brief description in their own words explaining any criminal record they might have. A criminal record might include an arrest that had not resulted in a conviction, Tow admitted. The packets then went to the PRB—composed of high-ranking FDNY officers and personnel—with a note from Tow called a consideration report. It either recommended the candidate be hired or that the person be passed over. Tow only wrote consideration reports for applicants with criminal histories, poor employer references, sometimes for a bad school record or a poor driving history. It was a subjective assessment, based on Tow seeing something in the candidate he “thought the department should be aware of.” Candidates with clean records didn’t get a consideration report sent to the PRB. Only those viewed as potentially problematic did. Tow would know the result of the PRB’s vote when he got a report back to either hire the candidate or move to the next one on the list. He was never given a reason for the PRB’s decision, he said, and rarely saw the vote breakdown among its members. Nobody knew how members got appointed to the PRB, Tow added. Its inner workings were largely opaque, with no written guidelines or procedures to follow. It kept no minutes of its meetings or records of its decisions. As far as anyone in the FDNY knew, its decisions were made on a case-by-case basis.
“A number of issues may have gone to the PRB. The letter you get back doesn’t indicate on what basis they decided ultimately to reject an applicant?” Levy asked.
“That’s correct,” Tow replied.
“Does the applicant ever find out on what basis he or she was rejected by the PRB?” Levy followed up.
“No.”
“Is that made available to any other agency of the department that you’re aware of?”
“No.”
“Is it made available to the Equal Employment unit in the Fire Department?” Levy asked.
“No.”
“If someone is turned down by the PRB, the letter says what? Is there a form letter you could describe for us?” Levy said.
“We’ve used the considered/not selected designation which is part of the many choices an agency can avail themselves to use with regard to selecting or not selecting a candidate. So, they would get a letter from my office once we had passed the appointment date that would say you’ve been considered but not selected,” Tow said.
His testimony wore on, with Judge Garaufis listening closely and even interjecting with his own questions when he needed something clarified. Then Levy handed a document to Tow and asked him to read it out loud, substituting “U1” for the candidate’s name:
The candidate’s file is before the review board because of his arrest record. On August 14th, 1993, U1 was arrested for unlawful possession of marijuana and having an altered license. He stated he was driving with a friend in the Hamptons and was pulled over by police. His friend had some marijuana and they were subsequently arrested. He pled guilty to disorderly conduct and paid a fine totaling $295. He was 19 years old. On August 12th, 2002, while going through a separation with his wife, U1 was arrested for criminal contempt violating an order of protection and menacing in the second degree. He stated he had returned to his apartment where his wife was still living and requested his clothes. An argument followed and he was arrested and charged. He pled guilty to harassment, second degree physical contact. He received a conditional discharge for one year and another order of protection was imposed. He was 29 years old. Although I am troubled by his arrest in 2002, there have been no further incidents since that arrest. Hopefully, he and his ex-wife worked out their differences. I recommend his appointment.
Levy called his attention to the candidate’s attached arrest record: criminal contempt with a weapon, and harassment with physical contact. Under questioning, Tow admitted his investigators had not tried to find out what type of weapon was involved in the charge.
“Could you read the description of this individual?” Levy asked.
“The description says sex: male. Race: white. Ethnicity is blank. Skin tone is light. Eye color, blue. Hair color, blond. Height, 5-10. Weight, 152,” Tow read.
Levy handed him a second document, another recommendation from Tow to the PRB board, and asked him to read it, substituting “U2” for the candidate’s name this time.
“The candidate’s file is before the review board due to his arrest record. On April 9th, 2000, U2 was involved in a verbal argument with his wife that escalated into a pushing match. Her father called the police and U2 was subsequently arrested and charged with assault in the third degree. The case was later returned in contemplation of dismissal. Although U2 was not convicted of this charge, incidents of domestic violence raise concerns of his ability to manage his temper and/or emotions. I do not recommend his appointment,” Tow read.
“Can you tell the court why U2’s domestic issue rose to the level of a non-appointment or recommendation of non-appointment while U1’s, which apparently involved a weapon and a plea with physical contact merited a recommendation for appointment?” Levy asked.
Tow explained that the two reports had been more than a year apart.
“I did not have both these cases before me at the same time,” he said.
Levy asked him to read the description of candidate U2.
“Sex: male. Race: unknown. Ethnicity: Hispanic. Skin tone: medium. Eye color: brown. Hair color: black. Height: 5-7. Weight: 165,” Tow read.
Levy had one more document for him, this time for candidate “U3.” He asked Tow again to read it into the record.
“In 1999, U3, acting as a police officer, was one of the officers involved in the shooting of Amadou Diallo in the Bronx while searching for a rape suspect. He was charged with murder in the second degree. He was acquitted of all charges in a jury trial. I recommend his appointment to the department,” Tow intoned.
“When you consider arrests, do you consider the seriousness of charges?” Levy asked.
“Yes.”
“I note that in the case of U2, one of your comments was your concern about his ability to manage his temper and/or emotions. Did you have any concerns about U3 who had shot an unarmed civilian, that perhaps his judgment, though not criminal, may have been faulty to the point where it would not be wise to hire him as a firefighter?” Levy pressed him.
“No,” said Tow.
“Do you happen to know if U3 is white? Do you remember this case?”
“Yes, I do. Yes, he was white,” Tow said.
Levy then introduced another document, prepared by Tow’s predecessor but ultimately implemented by Tow’s team of investigators. It involved a black candidate arrested twice on drug charges. Once in 1995, at 20 years old, and again in 1996 at 22 years old. Both times the charges were dismissed, Levy noted. He asked Tow to read the final recommendation.
“I gave [the candidate] the opportunity to clarify the above incidents during an interview. I didn’t feel the candidate was being totally honest and forthright with his answers and had selective amnesia on occasion. I do not recommend his appointment,” Tow read.
The Vulcans’ lawyers would have liked to hold up more examples of the subjective nature of the background investigation, but it had taken Darius Charney hours and hours of hunting just to find these records. Anecdotally, there was ample evidence of double standards—the Vulcans had handled plenty of examples over the years. But finding written records was next to impossible because the PRB wrote almost nothing down. It had no human resource guidelines, no best practices to follow, not even a record of what was discussed in its meetings. Charney counted himself lucky to find what he did.
But Levy wasn’t done with the PRB just yet. There was still the question of deposition testimony from Sherry Ann Kavaler, the FDNY’s assistant commissioner for personnel in 2004. She’d been the one to write to DCAS before exam 2043 to ask who was going to validate the firefighter exam because questions were raised about its fairness. She had been Tow’s boss in the background investigation unit until retiring in 2004, and she sat on the secretive PRB. In 2008, as part of the Vulcans’ discrimination lawsuit, Kavaler was deposed by the group’s counsel. What she said at the time astounded them. Levy saw no need to haul the retired woman back to the city to testify in the bench trial, not when he could put her deposition straight into the record. He asked Garaufis to start reading with him on a question that asked if PRB members recused themselves if a candidate up for review was someone they knew.
Kavaler said in her deposition that it would be a “positive thing” if someone on the PRB knew a candidate up for review because it would “bring insight into what was just on paper.”
When Levy asked if that happened often, she said at almost every meeting there was a candidate who was known to someone on the PRB. Not so much a relative of someone on the PRB, she said, in response to a query from Levy, but likely a “relative of someone in the Fire Department that the PRB people knew.” Asked if those candidates were given special consideration, Kavaler answered, “Yes,” and added they would be more likely to be given a pass. Even though the PRB’s doings were supposed to be confidential, Kavaler admitted, those with friends and family in high places always got tipped to which candidates were up for review—and did as much as they could to sway the results in the applicant’s favor.
“Somehow or other, although I am very upset with my staff, it appears people knew who was going to PRB. It got leaked out of my [background investigation] area. No one would ever tell me who did or why,” Kavaler said in her deposition.
People knew what was going on and who was going to the PRB. You would have Lieutenants and Captains, whatever, Chief of Department, this is the son of so and so. This is the son of so and so. I lived next door to him for years. He’s a good guy. He just had a fight in a disco. He got drunk. Someone made a pass at his girlfriend. He socked him. He did community service, something like that, whatever it was. He beat his wife but his wife took him back so he shouldn’t be considered a wife beater. He still could be a good firefighter. These types of things would be brought to the table and people would say ‘I know this guy. He’s a good guy. His son has got to come on the job. I will vouch for him. I will bring him into my office tomorrow. I’ll read him the riot act, say he’s getting the chance of a lifetime and he better own up to it and make us proud.’ And we would hire him.
Levy read the next question in the deposition to Judge Garaufis. He asked Kavaler if the PRB followed a checklist or guidelines while interviewing candidates.
“No, it wasn’t a checklist or anything like that. You’re dealing with a lot of Irishmen who are drunks and they get into bar fights and they get arrested and they get arrested again. They fight, they sock their girlfriends. [These are] the things that cause their records to pop up to us because they get arrested, because they fought with the police when they got arrested. This is boys being boys, that type of thing,” Kavaler said.
The bench trial went on for nine days in total. Pat Miller, the city’s attorney, did her best to point out that the Vulcans also used the friends-and-family network as often as possible, frequently calling FDNY deputy commissioner Doug White, an African American who sat on the PRB. They would ask him to intervene for black candidates, too, the city noted. And Kavaler, in her deposition, stated that nobody ever made race a factor in PRB decisions. City lawyer Pat Miller’s aggressive style at times put her at odds with Judge Garaufis. When Lanaird Granger was called to testify about the firehouse noose incident, the judge halted proceedings because Miller was objecting to answers before Granger finished speaking. A testy Judge Garaufis ordered her to stop harassing the witness and called a ten-minute break. Coombs also got his chance to talk about the FDNY’s past recruitment efforts, which CCR said went from terrible to poor. Marshall took the stand to talk about the standards needed for the job, and Sheldon Wright put in an appearance to talk about the early efforts to build the Fire Cadet program. Paul Washington didn’t speak until the very end of the trial to talk about his early days as a young firefighter in mostly white firehouses.
Paul Mannix and Merit Matters went on the attack as soon as the trial ended. Mannix wrote a lengthy letter to the Chief-Leader and accused Granger of perjuring himself under oath by fudging details about the noose.
Merit Matters was also outraged by Judge Garaufis’s disparate impact decision, which said any black or Latino firefighter who scored as low as a 25 on the 1999 or 2002 firefighter entrance exams could reapply to take the tests again—the so-called second-chance hires. The standard set was dangerously low and would imperil the safety of firefighters and citizens, Mannix insisted.
On October 4, 2011, Judge Garaufis issued a searing decision that accused Mayor Michael Bloomberg of knowingly turning a blind eye to the racial disparities within the FDNY. “The evidence adduced in this case gives the court little hope that Mayor Michael R. Bloomberg or any of his senior leadership has any intention of stepping up to the task of ending discrimination at the FDNY,” Judge Garaufis wrote. “Instead of facing hard facts and asking hard questions about the city’s abysmal track record of hiring black and Hispanic firefighters, the Bloomberg administration dug in and fought back.”
Garaufis berated the city for “blame-shifting” and “accountability-avoidance,” writing that the administration “still doesn’t get it.” To avoid a repeat of more than a century of intransigence, a federal court monitor would be appointed to oversee a top-to-bottom overhaul of the FDNY’s recruitment, testing, vetting and retaining of minority candidates, Garaufis wrote. The court monitor would be in place for ten years, he ruled.
“It is the court’s view that nearly 40 years of discrimination will not be cured by a few simple tweaks to the city’s policies and practices,” Garaufis noted. But the blame didn’t just fall on Bloomberg. “That this discrimination has been allowed to persist in New York City for so long is a shameful blight on the records of the six mayors of this city who failed to take responsibility for doing what was necessary to end it,” he said.
Bloomberg did not take the verbal lashing with good grace.
“The judge was not elected to run the city, and you can rest assured that we’ll be in court for a long time,” the mayor said. The city filed an appeal on December 8, 2011, challenging Garaufis’s decision to find the city liable for intentional discrimination.
Over at Vulcan Hall, the Committed Four cared not one iota about Bloomberg’s appeal. The intentional discrimination ruling called for a federal monitor and special oversight of the FDNY—which were all good things, in their opinion. But it was the disparate impact ruling they really valued. That decision was not challenged by the city. Judge Garaufis’s mandate that nearly 300 second-chance candidates could try again to get hired—plus the overhaul to the city’s written exams—would stay in place. Change was going to come, regardless of the city’s appeal of the intentional discrimination ruling.
The city was already advertising for exam 2000, to be given in early 2012. Unlike the three prior FDNY tests, this one was designed by an outside expert and with oversight from former U.S. attorney Mary Jo White, who made sure all the proper procedures were followed. As an added plus, exam 2000 required that a candidate actually live in the five boroughs for a year before taking the exam to qualify for the five bonus points. It was a long-awaited win for the Vulcans, who labored for years to get the residency credit tightened up. This effort came about after multiple meetings with City Council member Leroy Comrie and the Black, Latino and Asian Caucus. But it wasn’t until Mayor Bloomberg and Commissioner Salvatore Cassano decided they wanted a one-time age exception for 6019 candidates that the Vulcans’ chances improved. The fact that the FDNY wanted something opened the door for some behind-the-scenes aid from Council Speaker Christine Quinn. In the end, it came down to the usual political horse trading. The Vulcans got their stricter residency credit and the City Council agreed to lift the age limit—just for exam 2000—to 35 so interested 6019 test takers could try again. Quinn and Comrie helped broker the deal. The trade only solidified Washington’s cynical suspicion that the FDNY could find its way around any city rule when it was so inclined. It also didn’t escape the Vulcans’ notice that the city had traditionally insisted the residency credit was to give city dwellers city jobs—not necessarily to increase minority numbers. Only when the Vulcans filed an intentional discrimination lawsuit did the city claim the five points as evidence it tried to help black applicants all along.
“I feel bad for those kids, I really do,” Washington said to Marshall about the 6019 furor. “But black kids have been getting knocked out for decades because of these tests and nobody cared. When white kids are affected, it’s a big issue.”
Giving the burned candidates from test 6019 a second chance to join the FDNY—much like the blacks and Latinos who’d been turned away a decade earlier—didn’t appease Merit Matters, or other Vulcan detractors. Shortly after a federal monitor was finally selected by the judge, articles started popping up in daily tabloids about the excessive cost.
Federal monitor Mark Cohen’s first bill of $310,758 for 53 days of work in March 2012 caused “howls of protest from the city,” according to the New York Post.2 Likewise, the Vulcans’ tutorial classes in April and March 2012 caused headlines when white applicants, no doubt egged on by Merit Matters, decided to crash them. A week after the Vulcans had their blowout at a tutorial class in Jamaica, Queens, Judge Garaufis announced that the city would have to pay up to $128 million to the thousands of blacks and Latinos who were either not hired or got hired years later than they should have been because of discriminatory exams. The Vulcans also couldn’t help but feel cynical about that too. Ten years of trying to get the city to settle for peanuts, and in the end the Bloomberg administration cost the taxpayers millions.
The rancor between Merit Matters and the Vulcans only increased as spring turned into summer. Mannix’s vocal opposition rose to a fever pitch in July, when Judge Garaufis announced he would hold a fairness hearing. It would be for firefighters, applicants and others who wanted to object to his decision to compensate black and Latino firefighters. Mannix went into overdrive, sending out notices encouraging as many firefighters as possible to attend and lodge their objections. “I’m not very hopeful when it comes to Nick Garaufis, but they are providing this opportunity, and maybe somebody will pay attention. Maybe if enough people come out, they’ll think, ‘There’s something going on there that we should look into,’” Mannix said in the Chief.3
He didn’t hide his deep distaste for the part of Garaufis’s ruling that gave as many as 293 black and Hispanic candidates a second chance to join the Bravest. They would be priority hires—meaning first on the job—if they met all the minimum hiring requirements and passed the upcoming written and physical exams.
“It’s gonna affect the whole job. It really causes a lot of resentment. You’re going to get seniority, you’re going to get back pay, and just because I’m white or Asian or Native American, I don’t get it? When you weren’t out there putting your life on the line on the rig? How are you not going to resent that?” Mannix said.4 He called Garaufis an “ideologue” and questioned how the entrance exams could be discriminatory when they were created by DCAS, an agency he claimed was staffed mostly by people of color.
Washington had his answer ready. If Garaufis was going to invite Merit Matters and others to share their opinions in Brooklyn court, the Vulcans would be there too.
“There’s literally thousands of white firefighters on the job today who cheated to get the five residency points. Everybody knows it. Where’s the stigma attached to them? Where’s the resentment? That’s white privilege, and it’s out-and-out fraud. But black New Yorkers who’ve already been discriminated against on this job for 150 years—they gotta get ready to be resented,” Washington said.5
The face-off came October 1, 2012, at a rally outside Judge Garaufis’s Brooklyn courthouse. The judge invited firefighters to share their opinions about his ruling, but despite Mannix’s intense beating of the bushes, only about 36 of the 180 opposing firefighters scheduled to speak that day actually showed up. Garaufis cleared four days of his calendar for the testimony, but the so-called fairness hearing was adjourned at 11 a.m. after all the speakers had their two minutes. Of the 770 who registered initially, only about 150 testified in total.
“Seniority was earned in the dead of night when these benefactors were home sleeping,” railed one firefighter, speaking of the priority hires who were being given a second chance.6
“I am concerned about the future of the department. Standards must remain high,” said a chief, second only to Mannix in rank.7
“I feel I’m being discriminated against because I’m Caucasian,” said a firefighter. As Garaufis listened to the litany of concerns and complaints in his courtroom, a mass of about 100 white firefighters stood outside on one side of Cadman Plaza while a group of about 50 Vulcans stood on the other.
The Committed Four were in the group, along with Damon Alston, who almost didn’t get on in 1999, and Regina Wilson, then the president of the United Women Firefighters Association. But it fell to Coombs, as the Vulcans’ president, to give the sound bite of the day.
“Whether they’re angry or not, we could care less,” he said dismissively.
The dueling press conferences marked the zenith of Merit Matters’ influence in the FDNY. A month later, the top brass finally took a swipe at the 150-year tradition of looking out for family and friends with a new directive that forbid employees from contacting the PRB, or from communicating with the board at all about its hiring decisions.
A week later Mark Cohen, the court-appointed FDNY watchdog, took the department’s highest officers to task for failing to halt the dissemination of Merit Matters material to firehouses around the city from an FDNY headquarters fax machine. Cohen found that a fax machine at FDNY’s MetroTech headquarters was used to send 11 press releases copied from the Merit Matters website, which was replete with Mannix’s controversial writings.
“Future minority hires who are . . . ‘incapable’ of earning the position through the testing process . . . will not be able to perform the requirements of the job” compared to “firefighters who ‘earned’ the position through the testing process,” said one.8
The FDNY said it found no evidence the faxes were widespread or that Mannix sent them out. Cohen faulted its probe by noting that the agency “did not conduct any interviews (with) Mannix (nor) any individual in the fire houses” that got one of the missives.9 The city had, however, tried to block Cohen’s involvement in the fax probe.
Vulcan Society members (from left to right) Captain Paul Washington, retired firefighter Ella McNair, retired firefighter James Tempro, retired firefighter Duery Smith, (behind him) lawyers Darius Charney of CCR and Richard Levy of Levy Ratner, firefighter John Coombs (in bowtie), Lieutenant Michael Marshall and others face off with members of Merit Matters outside the federal court in Brooklyn. Members of Merit Matters were there to testify against remedies proposed by Judge Nicholas Garaufis in the landmark civil rights lawsuit brought by the Vulcans against the city and the FDNY, October 1, 2012. Photo credit: Michel Friang.
Garaufis had just about lost patience with the backward, recalcitrant ways of some FDNY officials and some of its firefighters. In November 2012, he brushed aside his numerous critics and issued a final order granting back pay, priority hiring and retroactive seniority to affected blacks and Latinos. He said he found the emotional, angry responses of some firefighters “disturbing,” and worried they would make life difficult for incoming minorities. “Unfortunately, the overwhelming majority of the objectors used the process to . . . malign the court for daring to interfere with the culture of the FDNY,” he wrote. His rulings were “necessary to remedy the city’s past discrimination . . . it is not a punishment to firefighters, nor is it a statement about the value of firefighters in society.” He was particularly concerned by the anger exhibited by some FDNY officers. He quoted an FDNY lieutenant who testified that the priority hires “do not belong, and more importantly they do not deserve what they have not earned,” and another officer who stated, “in my opinion, anyone who failed test 7029 and 2043 is a moron and their becoming a New York City firefighter by judicious decree is a joke.”10
Such comments and the firefighters’ outrage at being forced to let go of some of their cherished traditions was precisely the problem Title VII was enacted to address, Garaufis responded.