Alexander v. Bahou

512 F.Supp.3d 363

Lee ALEXANDER as Mayor of the City of Syracuse; Thomas F. Hanlon, as Chief of Fire of the Syracuse Fire Department; Thomas J. Sardino, as Chief of Police of the Syracuse Police Department; and City of Syracuse, Plaintiffs,

National Association for the Advancement of Colored People, Syracuse/Onondaga Chapter, Intervenor Plaintiff,

v.Victor S. BAHOU, as President of the Civil Service Commission of the State of New York; Josephine L. Gambino, as Commissioner of and Constituting, the Civil Service Commission of the State of New York; James T. McFarland, as Commissioner of and Constituting, the Civil Service Commission of the State of New York; and Edward J. Gusty, Commissioner of the Department of Personnel of Onondaga County, Defendants,United States of America, Plaintiff,National Association for the Advancement of Colored People, Syracuse/Onondaga Chapter, Intervenor Plaintiff,

v.City of Syracuse, a municipal corporation ; Lee Alexander, as Mayor of the City of Syracuse; Thomas F. Hanlon, as Chief of Fire of the Syracuse Fire Department; Syracuse Fire Department; Thomas J. Sardino, as Chief of Police of the Syracuse Police Department; Syracuse Police Department; Victor S. Bahou, as Commissioner of and constituting the New York State Civil Service Commission; Josephine L. Gambino, as Commissioner of and Constituting the New York State Civil Service Commission; James T. McFarland, as Commissioner of and Constituting the New York State Civil Service Commission; New York State Municipal Training Council; and Edward J. Gusty, Local Personnel Officer, County of Onondaga, Defendants,

5:78-CV-392, 5:80-CV-53

United States District Court, N.D. New York.

Signed January 12, 2021

OF COUNSEL: JOHN G. POWERS, ESQ., MARY L. D'AGOSTINO, ESQ., HANCOCK ESTABROOK, LLP, Attorneys for City of Syracuse, 1800 AXA Tower I, 100 Madison Street, Syracuse, New York 13202.

OF COUNSEL: KRISTEN E. SMITH, ESQ., CITY OF SYRACUSE CORPORATION COUNSEL, Attorneys for City of Syracuse, 233 East Washington Street Room 300, City Hall, Syracuse, New York 13202.

OF COUNSEL: ROBERT RICH, ESQ., UNITED STATES DEPARTMENT OF JUSTICE-ENRD, Attorneys for the United States, 4 Constitution Square, 150 M Street Northeast, Washington, District of Columbia 20002.

OF COUNSEL: ALICIA D. JOHNSON, ESQ., JOHN P. BUCHKO, ESQ., UNITED STATES DEPARTMENT OF JUSTICE-CRD, Attorneys for the United States, 950 Pennsylvania Avenue Northwest Room 4018, Washington, District of Columbia 20530.

HON. ANTOINETTE T. BACON, OF COUNSEL: THOMAS J. SPINA, ESQ., Assistant United States Attorney, Acting United States Attorney for the Northern District of New York, Attorneys for the United States, 445 Broadway, Room 218, Albany, New York 12207.

HON. LETITIA JAMES, OF COUNSEL: COLLEEN D. GALLIGAN, ESQ., Assistant Attorney General, New York State Attorney General, Attorneys for Defendants, The Capitol, Albany, New York 12224.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

Currently before the Court is a motion purporting to resolve a decades-old pair of lawsuits that were brought to address racial and sex-based discrimination in hiring practices for the police and fire departments of the City of Syracuse ("Syracuse" or "the city"). Both the city and the Department of Justice ("the government") filed causes of action in 1978 and 1980, respectively, seeking to challenge the civil service hiring requirements imposed by New York State ("New York" or "the state"). Those causes of action both fundamentally argued that the imposed hiring requirements unconstitutionally disfavored African Americans and women in the police and fire departments, although the government also looked to take the city to task for its own culpability in its hiring disparities.

Ultimately, the parties reached a settlement in 1980, resulting in a consent decree (the "consent decree") that had the effect of permitting Syracuse to institute a hiring preference for African American and women candidates notwithstanding the civil service requirements. Some forty years later, the government has moved to modify—and ultimately dissolve—the consent decree under Federal Rule of Civil Procedure ("Rule") 60(b)(5). That motion will now be decided on the basis of the parties’ submissions and oral arguments held on Friday, November 13, 2020.

II. BACKGROUND

On August 7, 1978, Lee Alexander, then-mayor of Syracuse, Thomas Sardino, the city's then-police chief, and Thomas Hanlon, the city's then-Fire Chief (together "the Syracuse plaintiffs") filed the present case seeking a declaratory judgment against the New York State Civil Service Commission. Dkt. 1; Dkt. 12 ("Decree Order"), pp. 3-4.¹ Essentially, the Syracuse plaintiffs objected to the practical consequences of New York Civil Service Law's requirement that all appointments to the police and fire departments must come from the three eligible candidates with the highest scores on the civil service exam. Id. That requirement, colloquially called the "rule of three," is currently codified in New York Civil Service Law § 61 (" § 61").

Essentially, the Syracuse plaintiffs believed that § 61 ’s hiring requirements put them on the horns of a dilemma. Decree Order pp. 2-3. On the one hand, the Syracuse plaintiffs could have continued to follow the rule of three, despite mounting evidence that the exam's results "uniformly resulted in white males occupying the three highest positions on the list of eligible candidates ...." Id. at 3. But the Syracuse plaintiffs were concerned that walking this path would open them to federal civil and criminal liability by allowing racial imbalance to run unchecked. Id.

Alternatively, the Syracuse plaintiffs could have disregarded the rule of three to more actively foster diversity. Decree Order 2-3. Although this method would avoid federal liability, violating § 61 would instead open the doors to state civil and criminal liability. Id. at 3.

Rather than let the inevitable encroach on them, the Syracuse plaintiffs cut their own path by asking this Court to allow them to deviate from the hiring lists and increase their minority hires. Decree Order 3-4. After the Syracuse plaintiffs filed suit, the parties entered negotiations to settle the dispute without unnecessary litigation. Id. at 4. Those negotiations dragged on with little profit. Id.

On January 16, 1980, apparently fed up with the lack of momentum in this case, the government filed its own suit under Title VII of the Civil Rights Act of 1964 ("Title VII") against all parties involved in the initial lawsuit, as well as against the New York State Municipal Training Council. Decree Order 4. On March 19, 1980, the parties at last announced a settlement and proposed a consent decree. Id. at 5.

The consent decree first consolidated the Syracuse plaintiffs’ and government's cases. Dkt. 49-3 ("Consent Decree"), p. 3. More importantly, that agreement identified its own objectives and—as a consequence—the objectives of the settling parties.

One of the long-term goals of the consent decree was to employ African Americans "in all ranks within the fire and police departments in numbers approximating their representation within the labor force ... and their interest in, and ability to qualify for, such positions." Consent Decree ¶ 6. To bring about that goal, the city gave African Americans a hiring preference "on an interim basis to achieve the goal of hiring [African Americans] for 25% of all entry-level firefighter and police officer hires." Id. ¶ 7.

As for women, the consent decree's long-term goal remained simple enough: "to utilize females in all ranks within the fire and police departments in numbers approximating their interest in and ability to qualify" for those positions. Consent Decree ¶ 8. But the parties presented no interim goals in the consent decree, instead leaving those goals to be negotiated within eighteen months of the decree's entry.² Id. Nevertheless, the consent decree expressed a goal of hiring females for twenty percent of all entry-level police officer hires. Id. ¶ 8(b).

To achieve the long-term goals that were actually established, the consent decree provided Syracuse with three tools: (1) the capacity to grant hiring priority to African American and female candidates "in a manner analogous, but not identical, to the priority which has been given to [c]ity residents over non-resident applicants"; ³ (2) the obligation on New York's part to provide civil service examinations which accurately measure job performance; and (3) the ability of any party to request additional relief if the civil service examinations are found to inaccurately measure job performance. Consent Decree ¶ 1. The city also agreed to supplement its recruiting program to target and attract "qualified [African American] and female applicants ...." Id. ¶ 4(d).

By the plain terms of the consent decree, any party was permitted to move for its dissolution five years after it was entered. Consent Decree ¶ 18. However, the consent decree specifically noted that a motion to dissolve it should consider "whether the parties ha[d] substantially complied" with the decree and whether its "basic objectives" had been met. Id.

On March 27, 1980, the Court formally approved the consent decree. Decree Order 17. After the decree was approved, Syracuse began to maintain at least two lists of eligible candidates: a "general list" and a list of African American candidates. Vivenzio v. City of Syracuse , 611 F.3d 98, 101-02 (2d Cir. 2010) (describing the city's hiring procedures in response to challenge by rejected white male firefighter applicants). It is unclear whether the city maintains a third list for females who took the civil service exam, but its submissions seem to indicate that it does.

At any rate, according to Syracuse, its preference regime has resulted in demographic breakdowns for the police department as follows: 10.32% of all police officers are African American while 17.40% of all...