Eugene Margerum, et al., Appellants-Respondents,v.City of Buffalo, et al., Respondents-Appellants.BriefN.Y.January 6, 2015APL-2013-00290 Appellate Division Docket No. CA 12-01540 Erie County Clerk’s Index No. I 2007-1462 Court of Appeals of the State of New York EUGENE MARGERUM, ANTHONY HYNES, JOSEPH FAHEY, TIMOTHY HAZELET, PETER KERTZIE, PETER LOTOCKI, SCOTT SKINNER, THOMAS REDINGTON, TIMOTHY CASSEL, MATTHEW S. OSINSKI, MARK ABAD, BRAD ARNONE and DAVID DENZ, Appellants-Respondents, – against – CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF FIRE and LEONARD MATARESE, Individually and as Commissioner of Human Resources for the City of Buffalo, Respondents-Appellants. BRIEF FOR AMICI CURIAE THE BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 282, IAFF, AFL-CIO CREIGHTON JOHNSEN & GIROUX Attorneys for Amici Curiae The Buffalo Professional Firefighters Association, Local 282, IAFF, AFL-CIO 295 Main Street, Suite 560 Buffalo, New York 14203 Tel.: (716) 854-0007 Fax: (716) 854-0004 Date Completed: November 19, 2014 Corporate Disclosure Statement The Buffalo Professional Firefighters Association, Inc. is a Not for Profit Corporation organized under the laws of the State of New York on March 4, 1935, and has no parents or subsidiaries and is affiliated with the International Association of Fire Fighters (“IAFF”). i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 4 The City of Buffalo engaged in intentional discrimination in discarding the results of the Civil Service exams based upon the race of the candidates who would have been promoted and the City did not have a strong basis in evidence to believe that it faced disparate impact liability because of such Civil Service exams ................................................................................................... 4 CONCLUSION ........................................................................................................ 18 ii TABLE OF AUTHORITIES Page(s) Cases: AT & T Corp. v. Hulteen, 556 U.S. 701, ––––, 129 S. Ct. 1962, 173 L.Ed.2d 898 (2009) ...................... 9 Biondo v. City of Chicago, 382 F.3d 680 (7th Cir. 2004) ......................................................................... 16 Buffalo Professional Firefighters Ass'n, Inc. v. City of Buffalo, 17 N.Y.3d 854 (2011) ...................................................................................... 2 Buffalo Professional Firefighters Ass'n, Inc. v. City of Buffalo, 18 N.Y.3d 836 (2011) ...................................................................................... 3 Grossman v. Rankin, 43 N.Y.2d 493, 402 N.Y.S.2d 373, 373 N.E.2d 267 ....................................... 6 Matter of Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 (City of Buffalo), 79 A.D.3d 1737 (4th Dept. 2010) .............................................................. 2, 16 MOCHA Society, 2010 U.S. Dist. Lexis 46628 (W.D.N.Y. 2010) ............................................ 10 Ricci v. DeStefano, 557 U.S. 557 (2009)................................................................................passim Statutes & Other Authorities: 42 U.S.C. § 2000e-2(j) ....................................................................................... 15, 16 N.Y. Const. art. 5, § 6 ................................................................................................ 5 N.Y. Civil Service Law, § 50 ................................................................................. 5, 6 N.Y. Civil Service Law, § 61 ................................................................................. 5, 6 Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination. Michigan Law Review, Volume 7, 59-110 .............................................................................................................. 8 1 Preliminary Statement The Buffalo Professional Firefighters Association, Local 282, IAFF, AFL-CIO (“Local 282”) represents members of the Buffalo Fire Department. Local 282 has fought for many years to ensure that the City of Buffalo follows the collective bargaining agreement between the parties and treats all members of the unit uniformly. Local 282 also ensures that the City of Buffalo complies with all applicable laws, including New York’s Civil Service Law. In 2005, several members filed grievances when the City of Buffalo decided to end certain Civil Service promotional lists because continuing to promote from the lists would result in the promotion of only white firefighters. As required by law, Local 282 must process and pursue grievances without regard to the race of the grievant. Local 282 would have pursued grievances of any member of the unit who claimed that they were discriminated against because of their race, if those claims had merit. Local 282 pursued the grievances to arbitration. In the arbitration, the City of Buffalo argued that its actions were proper because it discontinued the lists so as to not incur increased liability in the MOCHA Federal Court action if it promoted more white firefighters to the officer ranks. An 2 arbitrator ruled that the City had not violated the anti-discrimination provisions of the collective bargaining agreement by terminating the lists based on the race of those who would be selected for promotion. A Copy is attached hereto. Local 282 appealed the Arbitrator’s Award to the New York State Supreme Court. Following the Supreme Court’s decision in Ricci v. DeStefano, 557 U.S. 557 (2009), Justice Dillon found that the Arbitrator’s Award could not stand because “the award would permit racial discrimination in the implementation of the collective bargaining agreement contrary to Federal and State Court decisions, statutes and common law. See attached un-published decision. He directed that the award be vacated and that a new arbitration be conducted before a different arbitrator. The City appealed the decision to the Appellate Division, Fourth Department, which upheld the decision for the reasons stated by the trial court. See Matter of Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 (City of Buffalo), 79 A.D.3d 1737 (4th Dept. 2010). This Court denied the City’s Motion for leave to Appeal, Buffalo Professional Firefighters Ass'n, Inc. v. City of Buffalo, 17 N.Y.3d 854, (2011), and the City’s Motion to reconsider this Court’s decision to deny Leave to Appeal. 3 Buffalo Professional Firefighters Ass'n, Inc. v. City of Buffalo, 18 N.Y.3d 836 (2011). The arbitration is currently being held in abeyance by agreement between Local 282 and the City pending a decision in the instant case, as the final decision in this matter will govern the outcome of the arbitration. It also should be noted that while many of the grievants are also Plaintiffs in this lawsuit, there are some grievants who did not join the lawsuit and will have to have their damages determined in the arbitration or by way of settlement with the City. In addition, if this Court finds that a Notice of Claim was not properly filed in this matter, the Plaintiffs would also need to seek damages through the arbitration procedure. Local 282 believes that this Court should apply the decision in Ricci v. DeStefano, 557 U.S. 557 (2009) as allowing an employer to avoid the use of Civil Service tests only where there is a strong basis in evidence to demonstrate those tests are discriminatory, not just where there is a concern about the lack of individuals of a certain race reachable on a given list at a certain time. The City of Buffalo discontinued the Civil Service lists because of the race of the individuals who were to be promoted to fill vacancies and without determining that the tests were discriminatory. The City 4 discontinued use of the lists without a strong basis in evidence that the exams were discriminatory. In fact, the City of Buffalo maintained that the civil service tests were not discriminatory throughout the period at issue. The strong basis in evidence standard cannot be met simply by pointing to the race of the firefighters who will be promoted from the civil service list at a given point in time. Argument The City of Buffalo engaged in intentional discrimination in discarding the results of the Civil Service exams based upon the race of the candidates who would have been promoted and the City did not have a strong basis in evidence to believe that it faced disparate impact liability because of such Civil Service exams. There is no dispute that the applicable legal framework for the analysis of this case was set forth by the United States Supreme Court in Ricci v. DeStefano, 557 U.S. 557 (2009). In Ricci, the Supreme Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race conscious, discriminatory action.” Id., at 585. The question before this Court is how to apply that test to the factual situation in this matter. 5 As is set forth more fully below, the City had no evidence that it would face disparate impact liability because the New York State Civil Service tests were discriminatory. The City simply looked at the race of the members who were to be promoted from the list at a given point in time and decided that it did not want to continue using the lists. The mere fact that at certain position on the civil service list all of the reachable firefighters are white does not mean that the City of Buffalo would face disparate impact liability because of the underlying Civil Service tests. All promotions in the Fire Department of the City of Buffalo are made pursuant to New York’s Constitution and Civil Service Law. Article 5, Section 6 of the Constitution states that “Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive; ... .” This Constitutional provision is implemented by the Sections 50 and 61 of the Civil Service Law. Section 50 of the Civil Service Law provides that “[t]he merit and fitness of applicants for positions which are classified in the competitive class shall be ascertained by such examinations as may be prescribed by the state civil service department or the municipal commission having jurisdiction... .” 6 See Section 50 of the Civil Service Law. Section 61 provides that any “[a]ppointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion; ... .” See Section 61 of the Civil Service Law. Thus, New York’s Constitution and Civil Service Law requires the City to administer a test in order to determine the merit and fitness of candidates for certain promotional positions. The City is also required to promote from those lists in the order of the names on the lists, so long as one of the top three is selected. See Section 61 of New York’s Civil Service Law. The reason for the civil service examination process is to avoid favoritism and discrimination in the promotion of employees in the civil service. “If the beneficent merit system with competitive examinations is [undermined] * * * not alone might incompetence be thus permitted, but favoritism or discrimination might thus be enabled to raise its ugly head’ (citations omitted). Grossman v. Rankin, 43 N.Y.2d 493, 507, 402 N.Y.S.2d 373, 373 N.E.2d 267 (Fuchsberg, J., concurring in part and dissenting in part). 7 Therefore, in considering whether or not the City has met its burden in demonstrating a strong basis in evidence that it faced disparate impact liability based upon the Civil Service tests, this Court must look at these tests in the context of the New York Civil Service Law, which has as a stated purpose the advancement of merit based hiring and the avoidance of favoritism and discrimination. This Court must also look at the tests in the context of their development by the New York State Civil Service Department. As demonstrated by the testimony of Dr. Steinberg and Mr. Kaiser, the two New York State Civil Service Department employees who developed the exam, they were doing the best they could to develop an exam that properly assessed merit and fitness for the promotional positions. There was no indication that the tests were being used as a pretext for discrimination. Even the City had to admit that it made the assumption that, because the tests were developed by the New York State Department of Civil Service, there was the assumption that the tests would be found to be valid. (A 1068). The fact that the tests at issue were developed by the New York State Department of Civil Service is important because it directly affects the amount of evidence the City would need to advance to meet the strong basis 8 in evidence standard. Because the Civil Service tests are specifically designed by the State of New York to test merit and fitness, the burden needs to be high to find that they are discriminatory. Employment tests first came under scrutiny because they were developed by companies in the 1950s and 60s as a means to discriminate when they were no longer able to legally restrict the employment of blacks and other minority workers. See Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination. Michigan Law Review, Volume 7, 59-110. At 59. Employment tests were developed with the sole aim of continuing the subordination of black workers. Id. 61. When the companies refused to give up the use of tests, the EEOC issued guidelines, which allowed the use of tests so long as the tests were not designed, intended or used to discriminate.” Id. at 60. This is not the situation today with the Civil Service Department of the State of New York. The Civil Service Department is certainly not developing tests that are designed, intended or used to discriminate. The tests are mandated by the New York State Constitution and are developed to be legitimate measures of merit and fitness. The tests should not be discarded lightly. As stated in Ricci, [r]estricting an employer's ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in 9 keeping with Title VII's express protection of bona fide promotional examinations. See § 2000e–2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT & T Corp. v. Hulteen, 556 U.S. 701, – –––, 129 S.Ct. 1962, 1970, 173 L.Ed.2d 898 (2009). Ricci, at 584. So in 1998 and in 2002, the City of Buffalo turned to New York State Department of Civil Service for the tests used to make promotions in the Buffalo Fire Department. (A 163-83). These tests were used for many used, even after they had been challenged in the Courts. Throughout the litigation, the City defended the tests as not discriminatory. The City of Buffalo never claimed that they needed to engage in intentional discrimination because it believed it faced liability because the tests were discriminatory, let alone demonstrate that it had a strong basis in evidence to believe so. The City’s position that the tests were not discriminatory was eventually confirmed by the Court in the MOCHA litigation: “To summarize, the court finds the proof presented at the hearing sufficient to show that the 1998 Lieutenant’s Exam was developed by the Testing Services Division of the New York civil Service Department in a manner that is significantly correlated with important elements of work behavior which are relevant to the position of fire lieutenant as performed by in the City of Buffalo. Accordingly, the City has met its burden that the Exam is job related for the position and consistent with business necessity … .” (A405) 10 The 2002 Lieutenant test was also found to be valid because the test was developed in the same fashion by the New York State Department of Civil Service. See MOCHA Society, 2010 U.S. Dist. Lexis 46628, at * 11 (W.D.N.Y. 2010). The context of the Civil Service developed lists is also important because of the reliance by the members of the Buffalo Fire Department on the civil services procedures. Every member of the Fire Department knows that promotions will be made based upon the Civil Service tests. The members also know that, because there are a limited number of promotional opportunities and the number of such opportunities is usually far less than the number of eligible employees, only those who obtain a high score on the test and therefore are near the top of the list, will have any opportunity to be promoted. Having a score that will offer an opportunity to be promoted is called being reachable. Those who are at the lower end of the scoring, while passing and therefore appearing on the eligible list, have little or no chance of being promoted. Even the City of Buffalo recognizes that those who were not eligible for promotion because of their poor performance on the tests had little reason to complain. The City pointed out in the MOCHA Federal Court litigation that the members of the Fire Department “who failed the exam are 11 apparently seeking to block promotions. It defies common sense to grant individuals who are not even eligible for promotions because they failed the test the ability to block promotions of individuals, both black and non-black, who legitimately passed a New York State Civil Service Exam.” (A-246). Following that same logic, it defies common sense to deny promotions to those members of the Department who worked hard to obtain scores that made them reachable for promotions because of their race. All Firefighters in the Department understand the importance of the Civil Service tests in determining who will be promoted. When a test is announced, the members know they must prepare for the tests if they want to be high on the list and therefore “reachable,” that is obtain a score high enough that there will be enough promotions to reach them. Knowing that a high score is the only way to guarantee a promotion, many members work diligently to prepare for the tests. They purchase books and take courses. They spend long hours studying for the exam. They spend time away from their families. They form study groups to help each other prepare. As was noted in Ricci, “[m]any of the candidates had studied for months, at considerable personal and financial expense, and the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.” Ricci, 557 U.S. at 590. 12 Of course, while many members work hard, other members of the Department either decide not to take the tests for personal reasons or, if they do decide to take the test, they do not work as hard as others to prepare for the test. The different approaches to studying, diligent verses lackadaisical, becomes apparent to the Members of the Department as they watch and talk about each member’s preparations. In the City of Buffalo, firefighters spend 15-hour night shifts and 9-hour day shifts in the Fire Houses. Many members will study during their free time at the fire houses. Therefore, members are aware of those who are working hard and those who are hardly working. While preparation and study do not always lead to better results, for the most part, persons who prepare for the tests often score higher on the tests. This is not rocket science. Where exams are developed in good faith to test the knowledge of the candidates, persons who prepare do better. So the members, who understand that placement on the list is important and that they will be promoted according to their placement on the eligible list, watched as the City promoted down the list and waited for their turn. Members who were reachable were waiting to be promoted The City did not, however, live up to the expectations of the membership, instead, the City made promotions from the lists in the order of 13 the lists for approximately three years. Then, the City decided to allow the lists to expire. The stated reason was that continuing to promote to the list would result in only white employees being promoted. (A-155, 158, 159, 256-62). Using lists for several years and then simply discontinuing the civil service lists because of the race of the next person or persons to be promoted is the same as relying on the statistical disparity alone, the exact type of action the Supreme Court condemned in Ricci. See Ricci at 579. In essence, the City told the membership of Local 282 that certain members would not be promoted because of their race. The reason was a look at the racial make-up of the Department. The City in one intentionally discriminatory action “upset an employee’s legitimate expectation not to be judged on the basis of race.” Ricci, at 590. There has been a long history of contentious race relations within the Buffalo Fire Department. (A.442-43). But the City’s actions in allowing the promotional lists to expire based on the race of those who would have been promoted did nothing to help that situation and may have exacerbated it. Every member the Department knows the procedures regarding promotions: the tests are announced and members study for the tests. Members understand that there is a relationship between how hard they study and how 14 high they place on the tests. To disregard the lists because those who did not study or did not study as hard, received lower scores creates resentment among the members of the Department. It discourages qualified individuals from the studying and taking the tests. It does not create a high quality Department where hard work and merit are rewarded. The ironic part of the City’s actions is that the cancelling of the lists did not benefit any of the minority members of the Department. The only result was that qualified white members of the Department, who had taken the test and placed high enough to be promoted, were denied promotions. And because individual members cannot always take the next test because of personal reasons or because individual members may not do well on the next test, the result is that qualified individuals may never get promoted. The damage to the morale of the unit was exacerbated as the City continued to defend the tests in Court, maintaining that the tests were fair and non-discriminatory. The members of the Department listened to the City stating that the tests were fair and non-discriminatory, while at the same time the City let the lists expire to avoid having to promote white members of the unit. In other words, the City was telling the Members of the Department that it was not going to promote those who worked hard and 15 obtained a high score on exams, which the City maintained, were legitimate and fair, simply because of the race of those who had done well. The Arbitrator’s decision shows the length to which discriminatory actions are defended when they are believed to be “right.” The Arbitrator went out of his way to find that the City did not violate the collective bargaining agreement by engaging in race based discrimination. The City had justified its intentional racial discrimination by arguing that while it was treating white firefighters differently, it was doing so because it wanted to mitigate its potential liabilities in the federal lawsuit and not contribute to the “racial imbalances” by promoting white firefighters. The Arbitrator agreed with the City and found that the City’s actions were “driven not by a desire to hurt whites or help non-whites but by a felt responsibility to protect the City against what could be portrayed as a looming threat, as well as a search for a method to control risk.” The Arbitrator therefore found such intentional discrimination was not a violation of the anti-discrimination provisions of the Collective Bargaining Agreement. Of course, this is a direct contradiction to law. Congress “provided in 42 U.S.C. § 2000e-2(j) that an employer’s desire to mitigate or avoid disparate impact does not justify preferential treatment for any group.” 16 Biondo v. City of Chicago, 382 F.3d 680, 684 (7th Cir. 2004). The intentional disregarding of test results without an objective strong basis in evidence of an impermissible disparate impact is the type of racial preference that Congress sought to prevent in § 2000e-2(j). See Ricci, 557 U.S. 557 (2009). On appeal, the Courts understood that the Arbitrator’s Award could not stand in light of the Supreme Court’s decision in Ricci. See Matter of Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 (City of Buffalo), (unpublished opinion attached)and Matter of Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 (City of Buffalo), 79 A.D.3d 1737 (4th Dept. 2010). The City could not engage discriminatory actions simply because it wanted to mitigate possible damages in a federal lawsuit. The City simply did not have any evidence before it when it decided to end the lists that it faced potential liability. The City always maintained that the Civil Service tests were fair and non-discriminatory. The Supreme Court in Ricci recognized that voluntary actions must be allowed in order to combat past discriminatory practices. But these actions must be before the tests are administered and the results known. As the Supreme Court stated: Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or 17 practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end. Ricci, at 585. The voluntary efforts should not include intentional discriminatory acts that favor one racial group of employees over another. The voluntary acts must be addressed to the Department as a whole. The City of Buffalo could engage in many actions that could improve the success rates of minority applicants on promotional exams without discriminating against other members of the Department. For example, the City could provide assist all members of the Department to prepare for the promotional exams. The burden of preparation should not fall to individual firefighters. Certain firefighters might be better able to obtain study materials. Certain firefighters with better family support are able to spend more time studying for the exam. Certain firefighters with fewer family obligations are better able to prepare. The City could find effect ways to assist all members of the Department in preparing for exams, rather than waiting for the results and then engaging in intentional discrimination against those who have worked hard and done well. 18 Conclusion The strong basis in evidence standard must mean what it states: there must be strong evidence that disparate impact liability will result. There does not need to be enough evidence to show certainty as to liability, but in the context of Civil Service tests, which are specifically developed to test merit and fitness and in themselves are important barriers to favoritism and discrimination, the amount of evidence must mean something closer to actual liability than to no liability. Otherwise, a Civil Service promotional test will not be judged on whether or not it measures the merit and fitness of a candidate for promotion but on the racial makeup of the list that results. Basing promotional decisions on the race of the candidate does not benefit anyone in the Buffalo Fire Department. The City has failed to show that it had a strong basis in evidence that it faced disparate impact liability so as to allow it to avoid liability for its intentional racial discrimination. DATED: November 19, 2014 Buffalo, New York Respectfully submitted, Jonathan G. Johnsen, Esq. Creighton, Johnsen & Giroux Attorneys for Amicus Buffalo Professional Firefighters Association, Local282 IAFF, AFL-CIO 560 Ellicott Square Building 295 Main Street Buffalo, NY 14203 (716) 854-0007 19