City wants Garaufis removed from FDNY case

The Brooklyn federal judge who ordered stiff anti-discrimination measures at the FDNY has "lost any semblance of neutrality" and has "a preoccupation with press coverage," city lawyers charge in a new appeals court filing.

In a sharply worded 126-page brief, the city argued that U.S. District Judge Nicholas Garaufis -- who found intentional discrimination at the Fire Department and named a monitor to oversee hiring and recruitment -- should be removed from the case by the Second U.S. Circuit Court of Appeals for bias.

"Where the city's proof showed that such relief was unnecessary, the Court excluded, struck or ignored it," wrote Corporation Counsel Michael Cardozo. "Where [plaintiffs'] evidence fell short, the court found a way to excuse or fix it."

In 2010, ruling on a suit brought by the federal government and the Vulcan Society of black firefighters, Garaufis found that the hiring tests of the 90 percent white FDNY had an adverse impact on minorities. He ordered design of a new test, and special efforts to recruit minorities to take it.

Last year, after hearing testimony about FDNY practices, the judge lashed out at Mayor Michael Bloomberg by name, found a pattern of intentional discrimination, and said a monitor and court oversight for 10 years were needed to ensure fairness at the department.

In its appeal, the city did not attack the ruling on new tests, which are scheduled to be given this spring. But the brief said Garaufis' findings that discrimination was intentional and the need for a monitor were unsupported by the evidence.

The city wants the Second Circuit to order a jury trial on that issue and to assign the case to another judge. The brief was filed on Tuesday, but not announced by the city.

As evidence of bias, Cardozo said that Garaufis played a personal role in calling and questioning witnesses such as FDNY Commissioner Sal Cassano last year, brought up personal experiences and material he found on the Internet during questioning, and expressed concern about criticism of his rulings in newspapers.

The city also said Garaufis' proposed appointment of former Manhattan District Attorney Robert Morgenthau to oversee design of new tests in 2010 was evidence of bias. As district attorney, Morgenthau had publicly feuded with Bloomberg. He withdrew when the city objected.

"The whole episode speaks volumes about the court's lack of detachment," Cardozo argued.

Garaufis' chambers said he wouldn't comment, but Richard Levy, a lawyer for the Vulcan Society, disputed the claim of bias.

"The city thinks that after a mountain of evidence has established that the city is liable for improperly discriminating, it's improper for the judge to think that it improperly discriminated," Levy said.