City Opposes Vulcan Role In Bias Suit

City Opposes Vulcan Role In Bias Suit

By ARI PAUL

The Bloomberg administration has formally opposed a motion by the fraternal order of African-American firefighters and several minority Firefighter candidates to intervene as plaintiffs in the U.S. Department of Justice's case alleging that two written exams had a disparate impact on minorities.

MICHAEL A. CARDOZO: Fears kitchen-sink case. The FDNY Vulcan Society and several minority candidates filed charges with the U.S. Equal Employment Opportunity Commission in 2002, which led to the DOJ's lawsuit this past May.

City: Piling On

While recognizing that the Vulcans and the individual parties have the right under Federal law to "intervene in this action to assert their disparate impact claims" that initiated the suit, the city maintained that their added presence in the Federal case would dramatically alter the case's nature.

"Rather than seeking to intervene in the instant action between the existing parties, proposed plaintiffs-interveners are actually seeking to assert additional claims and add additional party-defendants," wrote the city's Corporation Counsel, Michael A. Cardozo. "That is, intervention cannot be used to introduce new legal theories, claims and parties into the existing action."

The added defendants, Mr. Cardozo stated in his Aug. 2 motion, would be Mayor Bloomberg and Fire Commissioner Nicholas Scoppetta. The DOJ countered the city's logic in a court filing the following day.

"Although the proposed complaint in intervention would expand the scope of this lawsuit by raising additional claims and seeking additional forms of relief, counsel for defendant City of New York ... and counsel for the proposed plaintiff-interveners have agreed that their respective clients will not demand a jury trial," the DOJ's memorandum to the court stated. "Because that agreement should minimize any potential disruption or delay in the resolution of the United States' claims that otherwise might occur, the United States does not oppose the motion to intervene."

Won't Ask for Jury

This contradicted Mr. Cardozo's memorandum, which claimed that the proposed plaintiffs-interveners demanded a jury trial.

Richard Levy, an attorney for the Vulcans, said the group agreed to forego a jury trial because it did not want to slow down the judicial process. He added that the only new element the group would be introducing as an intervening plaintiff was the question of intent.

"It's based on the same claim: that the tests are not validated and not justified by business necessity," Mr. Levy said. "The only difference is that we're saying the city has known this for so long and let it be this way for so long. That amounts to something that we know as willful disregard, which is the equivalent of intentional conduct."

In its initial complaint, the DOJ argued that the gap between scores of African-American and Latino candidates and those of white candidates on the 1999 and 2002 exams was statistically significant. The department is still appointing Firefighters from lists of candidates who took these two exams.

UFA Wants Role

The DOJ is seeking equitable relief, while the Vulcans and the individual parties are seeking compensatory and punitive damages, according to the DOJ's memorandum. The Uniformed Firefighters Association moved to intervene as a party defendant last month. The DOJ asked the court to deny the union's request.

Mr. Levy said the Vulcans and the individual parties should know by the end of this month whether they will be permitted to intervene.