NYC appeals ruling on FDNY hiring monitor

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A Bloomberg administration lawyer Tuesday urged a federal appeals court to overturn U.S. District Judge Nicholas Garaufis' appointment of a monitor to oversee anti-discrimination efforts at the FDNY and reassign the case to a more neutral judge for trial.

"The strength of the terms which he has expressed his opinions would undermine the public's perception of the fairness of the process," city attorney Deborah Brenner told a Second U.S. Circuit Court of Appeals panel. " . . . He's convinced the fire department is a bunch of intentional discriminators, and the city is a bunch of intentional discriminators."

Garaufis in federal court in Brooklyn ordered the design of new hiring tests at the 90-percent white FDNY in 2010. Last year, based on a finding of intentional discrimination, he named a monitor to take over recruitment, hiring and equal opportunity enforcement at the department.

The city designed and gave a new test this spring, and has not challenged that part of the case.

But the city has appealed the appointment of a monitor, arguing that Garaufis was wrong in deciding that discrimination was intentional based on court filings without giving the city a trial on the issue. Any trial would be before a judge, not a jury.

Lawyers cautioned afterward that questions at oral arguments are frequently not a reliable indicator of how a case will come out. But one of the three Second Circuit panel members, Judge Jon O. Newman, repeatedly focused on the question of what to do if the court sends the case back for a trial on the question of intentional discrimination.

"Is it appropriate to have the judge who has already said the evidence is overwhelming decide whether it is true?" Newman asked.

The city has complained in court filings that Garaufis, who has taken personal pokes at Mayor Michael Bloomberg in his rulings, ignored evidence of the city's efforts to draw in minorities in his finding of intentional discrimination.

But a lawyer for the Justice Department said the judge had been "open minded and unbiased."

And Richard Levy, representing the Vulcan Society of black firefighters, said that when Garaufis was considering intent, the city simply failed to counter the implications of its decades-long acceptance of test results that disfavored minorities.

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"If you are committed to maintaining a racially biased status quo," Levy said, "you can't come into court and say that is racially neutral."

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