October 7, 2012
For Judge in Firefighter Discrimination Case, an Evolving Opinion
By MOSI SECRET, NYTIMES
LINK

One after another, nearly 150 white firefighters approached a lectern facing a federal judge and, voices sometimes trembling with anger, decried what they called a perversion of justice. Years of hard work to make it into the ranks of the department were being tossed aside to make way for unqualified minority candidates, they said, all in a questionable effort to end discrimination.

The target of their wrath sat silently before them: Judge Nicholas G. Garaufis of Federal District Court in Brooklyn, whose expansive rulings have forced the New York Fire Department — “a stubborn bastion of white male privilege,” in his words — to overhaul its practices to hire more minority candidates.

One fireman, Sean Fitzgerald, bluntly accused the judge of playing a “social experiment” and questioned whether he was driven by “socioeconomic problems, personal ambition or inner guilt.”

The remarkable demonstration of opposition, which played out over four days in federal court last week, underscored the degree to which Judge Garaufis has emerged as the most prominent and provocative figure in New York City’s most contentious integration battle in decades. Critics have dubbed him “Emperor Garaufis” and have accused him of being a publicity-seeking liberal crusader whose imposition of racial quotas has jeopardized public safety. Mayor Michael R. Bloomberg has called for his removal from the case.

But the case has highlighted the evolution of his thinking on the government’s role in helping minorities. A product of the machine-driven world of Queens politics, he fiercely opposed federally mandated integration efforts as a young school board member from a mostly white district in the 1970s. Decades later, he pulled aside a black colleague on the federal bench and asked him searchingly, “How does it feel to be a black person in society?”

That question came in the early days of the now five-year-old firefighter case.

Since then, Judge Garaufis, 64, has become a relentless critic of the Fire Department, unafraid to use the considerable powers of the bench to advance his notions of racial justice.

Though his rulings are under scrutiny from an appeals court, after complaints from the city that he “lost any semblance of neutrality,” Judge Garaufis found a measure of vindication last month when he lifted a prohibition on hiring in the Fire Department after a new test used to screen applicants was passed by a record number of black and Hispanic applicants. He ordered the city to grant minority hires retroactive seniority and pay, at a cost of as much as $70 million.

Supporters, including the black firefighters who joined a suit filed by the federal government, claimed the rulings were necessary to fix a biased system that had withstood previous efforts to increase diversity. The department remains 90 percent white despite New York’s demographic transformation: a majority of residents here are now nonwhite.

This is not the first case to bring publicity to Judge Garaufis; even other judges marvel at how often he is in the spotlight.

He ordered a sweeping overhaul of the state’s system of housing people with mental illness — the ruling was recently overturned on appeal on technical grounds. He also twice took the unusual step of urging a presidential administration to reconsider a death penalty case.

In scores of drug cases and mob trials, he has filled his fourth-floor courtroom with occasional eruptions, jokes and dramatic flair. In one encounter, a juror tried to escape her service by detailing her many racial biases, and he punished her by ordering her to continue serving in perpetuity. In another, one that showed his sense of humor, he lent his shirt and tie to Vincent Basciano, the fashion-conscious Mafioso nicknamed Vinny Gorgeous who had been accused of plotting to kill him.

“Judges can’t afford to worry about what other people think of them,” Judge Garaufis said in an interview, which he agreed to on the condition that he would not answer questions about the firefighter case.

Judge Garaufis, the grandson of Greek immigrants, has spent nearly his whole life in Bayside, Queens. He began his career as a lawyer in the late 1970s, worked for the state attorney general and returned to private practice.

In one of his earliest positions in public life, he won a seat on the local school board, representing a district in northeastern Queens known for its strong schools and stable neighborhoods where many of the longtime Irish, Italian and Jewish residents were unnerved by efforts to integrate their children’s classrooms.

He quickly found himself at the center of that battle — espousing an opinion sharply at odds with the ones he has written in the Fire Department case. Joining with a narrow majority of the school board, he fought to prevent the district from collecting demographic data on the school population, viewing it as a first step toward establishing quotas, and turned down federal money meant to help the poorer minority students who were being bused in. As a result, he was among those called racist by black parents and eventually stripped of power by the school chancellor.

“We already have an integrated school district,” Judge Garaufis said during the battle, in 1978. Using language strikingly similar to that of some of the firefighters who testified before him three decades later, he added: “What I feel is unreasonable and unfair is a marathon of surveys and statistical breakdowns that is unnecessary to achieve what we have already achieved.”

Judge Garaufis declined to talk about the school integration case in the interview, or to explain how his thinking had changed.

After making an unsuccessful run for State Senate — during which he secretly recorded a damaging conversation with a rival politician and later released it to the news media — he established himself as a legal adviser for the Democratic Party and officials, including Congressman Gary L. Ackerman and the former Queens borough president Claire Shulman. “He is willing to absorb punches in order to do what he believes is the right thing,” Mr. Ackerman said.

In 1995, President Bill Clinton appointed him chief counsel of the Federal Aviation Administration and five years later nominated him to the bench.

Judge Garaufis’s first wife, Eleanor Prescott, a journalist, died unexpectedly in 1997, leaving him to raise two young sons. In 2002 he married Betsy Seidman, a director of a philanthropic foundation who was one of the members of the Senate’s judicial search committee that recommended him for his current role.

The legal community did not know what to make of a behind-the-scenes political player with almost no trial experience who was suddenly presiding on the federal bench.

“They had no idea who I was,” Judge Garaufis recounted. “I wasn’t a former prosecutor. I wasn’t a former partner in a major New York law firm. I wasn’t a former magistrate judge. I wasn’t a former state judge. I didn’t hold any of the positions where they might have learned something about me.”

From the start, he did not hesitate to demonstrate his authority, making quick decisions in the courtroom and showing little patience for lawyers who questioned him. He also, drawing on skills honed in his Queens days, showed an aptitude for pushing intransigent bureaucracies and working the press.

The case that has defined him more than any other has been the civil rights lawsuit against the New York Fire Department, which claims that the department’s entrance exams illegally discriminated against minority applicants. That case, brought by the United States Department of Justice and supported by the Vulcan Society, a group of black firefighters, was the latest effort in an integration battle that dragged on for decades without resolution, landing in Judge Garaufis’s courtroom in 2007.

John Coombs, President of the Vulcan Society

After receiving the case, he turned to a mentor, Judge Sterling Johnson Jr., for guidance. As they discussed the underlying issues he posed the startling question of “how does it feel” to Judge Johnson. An officer with the New York Police Department as a young man, Judge Johnson, 78, described to his colleague what it was like to serve in the department before it was fully integrated — how, for example, he was prohibited from riding in squad cars with white officers. Judge Garaufis, he realized, was trying to understand something deeper than the normal legal issues.

After a bench trial in which he was the sole arbiter, Judge Garaufis ruled that the entrance exams were not only flawed, as judges before him had found, but that the city had also intentionally kept its firefighting ranks mostly white. He called the city’s failure to integrate the department a “shameful blight on the record of six mayors.”

In January, the city appealed, accusing the judge of bias and of being enamored of news media attention. Hundreds of people gathered in Manhattan this summer to watch the oral arguments at the United States Court of Appeals for the Second Circuit. Judge Garaufis, who had recently been rebuked and reversed by the court in another high-profile case, did not attend but his law clerks listened as the appeals judges questioned his rulings.

The appeals court may not issue its opinion for months, but even though his rulings are in jeopardy they seem to already be having an effect. For the first time in five years, the city stands ready to resume hiring firefighters after a record number of minority and female applicants took and passed a redesigned firefighter exam this spring; nearly half of the 42,000 applicants were nonwhite and nearly 2,000 were women. Even the city, whose lawyers fought the court-ordered requirements at almost every step, praised the test results.

That is one reason so few black and Hispanic firefighters showed up at the hearings last week, which allowed the public to comment in favor of or in opposition to Judge Garaufis’s rulings — leaving the parade of comments to their white colleagues. By most measures, they said, they had already won.

September 28, 2012


Judge Approves New Entrance Exam for City Firefighters
By MOSI SECRET, NYTIMES
LINK

A federal judge approved a new entrance exam for New York City firefighters on Friday, ending a long stalemate over hiring practices and increasing the likelihood that the department will hire thousands of minority applicants.

The ruling will allow the city to hire firefighters for the first time in five years. More than 90 percent of firefighters in the city are white.

Judge Nicholas G. Garaufis of Federal District Court in Brooklyn approved the test after the city submitted data showing it did not discriminate. “We’re pleased that we can now begin hiring to fill the more than 650 current vacancies in the firefighter ranks,” Salvatore J. Cassano, the fire commissioner, said in a written statement.

In response to a lawsuit brought by the Justice Department and the Vulcan Society, a fraternal order of black firefighters, which accused the department of discrimination against minority applicants, Judge Garaufis in 2010 prohibited the city from using earlier entrance exams to hire new firefighters.

All parties in the lawsuit agreed that the new exam would produce no difference in hiring between minority and white candidates.

“The Vulcans are very pleased and proud that their work over all these years has finally come to the point that there is a test that is both fair and is a better instrument of hiring firefighters than ever before,” said Richard A. Levy, a lawyer for the Vulcan Society. “The bad news is they had to fight so damn hard to do this. They kicked and screamed the whole way.”

More than 41,000 candidates took the new exam this year.

The city expects to hire or promote more than 9,000 firefighters from those who took the exam: 53 percent white, 20 percent black, 23 percent Hispanic and 4 percent Asian, according to court documents filed by the city in keeping with rates that all parties agreed upon.

The city projects that 97 percent of the new firefighters will be men.

A special master appointed by the court, Mary Jo White, a former United States attorney in Manhattan, supervised the design of the new test.

Judge Garaufis cautioned in the order that allowing the testing to proceed does not mark the end of the long-running case. The city remains under court order to put into practice a post-examination hiring process, overseen by a court monitor, that does not discriminate, the judge said.

January 14, 2010
Judge Cites Discrimination in N.Y. Fire Dept.
By AL BAKER, NYTIMES
LINK

A federal judge ruled on Wednesday that New York City intentionally discriminated against black applicants to the Fire Department by continuing to use an exam that it had been told put them at a disadvantage.

It was not a “one-time mistake or the product of benign neglect,” wrote the judge, Nicholas G. Garaufis of Federal District Court in Brooklyn. “It was a part of a pattern, practice and policy of intentional discrimination against black applicants that has deep historical antecedents and uniquely disabling effects.” A remedy will be decided on later.

In his decision, the judge highlighted how “black and other minority firefighters have been severely underrepresented,” characterizing that as a “persistent stain on the Fire Department’s record.”

City officials said that they intended to appeal the decision, but could not do so until the judge had determined what damages the city might face.

Legal experts, as well as lawyers for the plaintiffs and city officials, said the decision was the first in recent memory in which a court had found that the city had intentionally discriminated against a large group of people — racial minorities or women, for instance — in the workplace.

“I can’t recall there ever being a finding of intentional racial discrimination in a pattern-and-practice case against the city,” said Elise C. Boddie, a professor of constitutional law at New York Law School who formerly litigated employment discrimination cases. “I would say this is pretty big.”

In July, Judge Garaufis — acting on a claim being pushed by the United States Justice Department — ruled that the Fire Department used a test in 1999 and 2002 that had a discriminatory effect on black applicants.

In his ruling on Wednesday, the judge found that the city intentionally discriminated against blacks in using those tests and in ignoring calls over the years to change the testing procedure. The suit was brought by three people who took the test and by the Vulcan Society, a fraternal organization of black city firefighters.

At the heart of the case is the Fire Department’s persistent underrepresentation of minorities and the continued use, between 1999 and 2007, of the entrance exams. In 2007, there were 303 black firefighters, accounting for 3.4 percent of the department’s ranks; black residents make up 25.6 percent of the city’s population.

The judge noted that while the city’s other uniformed services “have made rapid progress integrating black members into their ranks, the Fire Department has stagnated and at times retrogressed.”

Judge Garaufis stopped short of finding that Mayor Michael R. Bloomberg and the former fire commissioner, Nicholas Scoppetta, had also intentionally discriminated against black applicants. But the judge wrote that he found strong evidence to suggest that they were made aware numerous times that the Fire Department’s entrance exams were discriminatory, yet failed to take sufficient remedial action.

The mayor testified at a deposition in August that he did not recall receiving a report more than six years ago warning him about sharp differences in the pass rates between white and minority candidates for firefighter jobs, lawyers said.

The judge “let the mayor and the commissioner off the hook on the basis of a doctrine known as qualified immunity,” said Richard A. Levy, a lawyer for the plaintiffs. He said that doctrine exempts public officials from lawsuits that are based on their discretionary decisions.

The chief of the labor and employment law division of the city’s Law Department said in a written statement that she was “pleased” that the court dismissed claims against Mr. Bloomberg and Mr. Scoppetta, but disagreed with the overall finding of intentional discrimination.

“It is the city’s view that there is simply no evidence that the city ever intended to discriminate against black applicants,” the lawyer, Georgia Pestana, said.

Anjana Samant, a lawyer for the Center for Constitutional Rights, which was part of the team that represented the plaintiffs, said that the class of people involved has been defined as those who were disqualified from becoming firefighters by virtue of the tests. The pool of potential claimants, she said, could reach the hundreds.

Ms. Samant said the remedies could include payment of lost salary for those denied jobs, as well as new city hiring policies.

Some city officials said they found the decision unexpected and deeply perplexing, in part because the judge ruled on plaintiffs’ motions for summary judgment and the city’s motion to dismiss the case without a trial.

Mr. Levy agreed it was unusual to get a ruling based solely on documentary evidence and depositions, but he said “the evidence of a decades-long pattern of discriminating against black and Latino firefighter applicants was overwhelming.”

Ms. Boddie, the New York Law School professor, said such rulings against government entities were rare around the nation, adding, “To the extent there is a finding of liability, it is usually on disparate-impact grounds, not based on racially discriminatory intent.”

Paul Washington, 48, a firefighter in Brooklyn and a former Vulcan Society president, said that the ruling validated “what we’ve been saying for the longest time, and which I’ve been saying since 1999 — that the Fire Department discriminates, intentionally, and they just continue to do it.”

He said he believed that over the department’s 145-year history, there were probably “thousands of thousands of black men and women who should have had this job and didn’t get it.”

Toby Lyles and Michael S. Schmidt contributed reporting.