05/14/2013 05:59 pm ET Updated Dec 06, 2017

FDNY Discrimination Ruling Overturned By Federal Court

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NEW YORK _ A federal appeals court on Tuesday affirmed the appointment of a monitor to oversee minority recruitment and hiring at the New York City Fire Department, dealing a setback to the city's efforts to roll back court control of the department's hiring practices in the landmark discrimination case.

But the appeals court did reverse a finding that the city had intentionally discriminated, took part of the case away from U.S. District Judge Nicholas Garaufis of Brooklyn in response to complaints of bias, and limited some of the judge's orders that micromanaged the FDNY.

The ruling by the 2nd U.S. Circuit Court of Appeals in a case brought by the federal government and minority firefighters did not involve Garaufis' orders that a new test be used to hire future firefighters. The new test developed under his auspices was administered last year, and hiring off that test will go forward.

In a complicated 59-page, 2-1 decision, the appeals court found that although FDNY practices had a discriminatory impact on minorities _ the department is almost 90 percent white _ Garaufis had been wrong in concluding without holding a trial that there was intentional discrimination, which was the basis for his exercising broad authority over the department.

While keeping the monitor in place, the court said Garaufis was wrong to order the city to hire an equal employment opportunity consultant for the FDNY, to order the department to keep records or all written communications relating to applicant screening, and to order that Mayor Michael Bloomberg or city Corporation Counsel Michael Cardozo sign all pleadings in the case.

Both sides declared victory.

The city said that reversal of the intentional discrimination finding was an "important victory" and expressed relief that court oversight had been turned back.

Cardozo said, "Now that we are no longer hampered by many of the onerous remedial requirements _ including hiring extensive and unnecessary consultants _ we now have a greater ability and freedom to continue our effective diversity efforts."

Richard Levy, a lawyer for the Vulcan Society, a black firefighters group, said the plaintiffs were "pleased" that the monitor would remain in place with most of his powers intact.

"It really doesn't affect our relief," Levy said. "It kept the monitor in place, and kept in place the restraints on the city in hiring."

The appeals court said that while Garaufis could continue to oversee the part of the case it upheld, a different judge should hear any future trial on the issue of intentional discrimination.

"We have no doubt that Judge Garaufis is an entirely fair-minded jurist who could impartially adjudicate the remaining issues in this case," wrote Judge Jon Newman, "but we think a reasonable observer would have substantial doubts whether the judge, having branded the City's evidence 'incredible,' could thereafter be impartial in assessing the truth of conflicting evidence."

Newman was joined by Judge Ralph Winter in the majority opinion. Judge Rosemary Pooler, in dissent, said she would have upheld Garaufis' finding of intentional discrimination.