New York Board of Education, Settlement Agreement

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, Plaintiff,
v.
NEW YORK CITY BOARD OF EDUCATION; CITY OF NEW YORK; WILLIAM J. DIAMOND, COMMISSIONER, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES (in his official capacity ); NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Defendants.
CIVIL ACTION NO. 96-0374 (FB) (RL)
SETTLEMENT AGREEMENT
This action was brought by the Attorney General on behalf of the United States of America against the New York City Board of Education "Board of Education"), the City of New York ("City"), the New York City Department of Personnel ("Personnel Department") (currently known as the Department of Citywide Administrative Services), and the Personnel Director for the Personnel Department in her official capacity (hereinafter collectively referred to as "Defendants") to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
In its Complaint, the United States alleges that Defendants have failed and/or refused to recruit blacks, Hispanics, Asians, and women on the same basis as white (non-Hispanic) men for the positions of School Custodian ("Custodian") and School Custodian Engineer ("Custodian Engineer"); have failed and/or refused to hire and promote blacks and Hispanics on the same basis as whites for the positions of Custodian and Custodian Engineer; and have used entry-level and promotional written examinations for the positions of Custodian and Custodian Engineer that disproportionately excluded blacks and Hispanics from employment, although these examinations had not been shown to meet the requirements of federal law. The Defendants deny and continue to deny these allegations.
However, the United States and Defendants, desiring to avoid protracted, expensive and unnecessary litigation, agree to the entry of this Settlement Agreement, which resolves all issues that were or could have been raised by the United States in its Complaint. This Settlement Agreement shall not constitute an admission, adjudication, or finding on the merits of the allegations delineated in the United States' Complaint.
The parties stipulate and agree as follows:
I. DEFINITIONS
1. As used in this Settlement Agreement, the terms "Custodian" and "Custodian Engineer" shall refer to

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the titles of Custodian and Custodian Engineer (both permanent and provisional), as well as any successor job titles for these positions, unless otherwise specified.
2. As used in this Settlement Agreement, the terms "Race" and "National Origin" shall refer to blacks, Hispanics, and Asians; the term "Gender" shall refer to women, including pregnancy status.
3. As used in this Settlement Agreement, the term "Challenged Examinations" shall refer to the following: Custodian Examination No. 5040; Custodian Engineer Examination No. 8206; Custodian Engineer Examination No. 8609; and Custodian Examination No. 1074.
4. As used in this Settlement Agreement, the term "Offeree(s)" shall refer to the following individuals. The universe of such individuals as of the date of the execution of this Settlement Agreement by the parties is set forth in Appendix A hereto.
(a)All Custodians or Custodian Engineers who are listed in the Stipulation Regarding Provisional Hires as black, Hispanic, Asian, or female and are still employed as Custodians or Custodian Engineers, either provisionally or permanently, as of the date of the approval of this Settlement Agreement by the Court; and
(b) All black, Hispanic, Asian, or female Custodians or Custodian Engineers who are not listed in the Stipulation Regarding Provisional Hires but are employed as provisional Custodians or Custodian Engineers as of the date of the approval of this Settlement Agreement by the Court and took one or more of the Challenged Examinations.
5. As used in this Settlement Agreement, the term "Median Date" for each of the Challenged Examinations shall refer to the following dates:
Custodian Exam No. 5040: 1/23/89 Custodian Engineer Exam No. 8206: 10/8/92 Custodian Engineer Exam No. 8609: 2/14/92 Custodian Exam No. 1074: 10/27/97
6. As used in this Settlement Agreement, the term "Current Job Title" shall refer to the title held by each Offeree as of November 6, 1998.
II. GENERAL INJUNCTIVE RELIEF
7. Defendants shall not engage in any act or practice that has the purpose or effect of unlawfully discriminating in the recruitment or the selection of Custodians and/or Custodian Engineers based on the Race, National Origin or Gender of any employee in, or applicant or prospective applicant for, a Custodian and/or Custodian Engineer position.
8. Defendants shall not retaliate against any person because that person has opposed allegedly discriminatory policies or practices of Defendants in the recruitment or the selection of Custodians and/or Custodian Engineers, has filed a charge with the Equal Employment Opportunity Commission or any state or local equal employment or human rights agency (including the New York City Commission on Human Rights and New York State Division of Human Rights), or has participated in or cooperated with the United States in its investigation and/or litigation of this case, as well as the United States' administration of this Settlement Agreement.

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III. GENERAL PROVISIONS
9. If any provision of this Settlement Agreement is challenged, the United States and Defendants shall take all reasonable steps to defend fully the lawfulness of any such provision.
10. The parties shall attempt to resolve informally any dispute that may occur under this Settlement Agreement. If the parties are unable to reach agreement after a matter has been brought to the attention of one of the parties by the other party, the issue may be submitted by either party to the Court for resolution.
11. This Settlement Agreement shall remain in force for a period of four years from the last date of execution of the Settlement Agreement by the parties.
IV.CONVERSION OF OFFEREES TO PERMANENT POSITIONS AND GRANT OF RETROACTIVE SENIORITY
12. All Offerees who execute and return to Defendants a Release pursuant to paragraph 39 shall receive the individual relief delineated in paragraphs 13-19, infra.
13. All Offerees who are serving as provisional Custodians as of the date the Court approves this Settlement Agreement will be granted the position of permanent Custodian. All Offerees who are serving as provisional Custodian Engineers as of the date the Court approves this Settlement Agreement will be granted the position of permanent Custodian Engineer.
14. (a) Defendants shall grant to all Offerees retroactive seniority dates to be determined in accordance with paragraphs 15-16, infra. These retroactive seniority dates shall apply for all purposes for which seniority is applied except any applicable probation requirement.
(b) Any period of time subsequent to an Offeree's retroactive date of seniority as a permanent Custodian or Custodian Engineer pursuant to the terms of this Settlement Agreement and prior to his or her initial date of employment as a Custodian or Custodian Engineer with the New York City Board of Education shall be deemed to be service as a permanent Custodian or Custodian Engineer with said Board of Education for the purpose of purchasing credit in the New York City Board of Education Retirement System. Each Offeree shall have the right to purchase service credit in the Retirement System for such period, provided that such purchase of service credit otherwise meets all of the requirements of the New York State Retirement ans Social Security Law (RSSL), and other applicable statutes.
(c) In the event that two or more Offerees receive the same retroactive seniority date as a result of this Settlement Agreement, seniority between said Offerees shall be determined by a lottery to be conducted by Defendants.
15. All Offerees whose names appear on the Stipulation Regarding Provisional Hires shall receive retroactive seniority as set forth in Appendix A. The parties determined the retroactive seniority dates as follows:
(a) If the Offeree did not take any of the Challenged Examinations that correspond to his or her Current Job Title, then his or her retroactive seniority date shall be the date he or she was hired provisionally in his or her Current Job Title.
(b) If the Offeree took one or both of the Challenged Examinations for the position of Custodian and has

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a Current Job Title of Custodian, his or her retroactive seniority date shall be the earlier of:
(i) the date he or she was hired provisionally as a Custodian, or
(ii) the Median Date for the Challenged Examination for Custodian that he or she took, or, if he or she took both Challenged Examinations for Custodian, then the Median Date for Custodian Examination No. 5040.
(c) If the Offeree took one or both of the Challenged Examinations for the position of Custodian Engineer and has a Current Job title of Custodian Engineer, his or her retroactive seniority date shall be the earlier of:
(i) the date he or she was hired provisionally as a Custodian Engineer, or
(ii) the Median Date for the Challenged Examination for Custodian Engineer that he or she took, or, if he or she took both Challenged Examinations for Custodian Engineer, then the Median Date for Custodian Engineer Examination No. 8609.
16. All Offerees whose names do not appear on the Stipulation Regarding Provisional Hires shall receive retroactive seniority as set forth in Appendix A. The parties determined the retroactive seniority date as follows:
(a) If the Offeree has a Current Job Title of Custodian, his or her retroactive seniority date shall be the earliest hire date listed in the Stipulation Regarding Provisional Hires for any provisional custodian, i.e., 2/28/92.
(b) If the Offeree has a Current Job Title of Custodian Engineer, his or her retroactive seniority date shall be the earliest hire date listed in the Stipulation Regarding Provisional Hires for any provisional Custodian Engineer, i.e., 4/13/90.
17. There will be no back pay awarded to Offerees under the terms of this Settlement Agreement.
V. TERMS RELATING TO RECRUITMENT CLAIM
18. Defendants agree to adopt, implement, and maintain a recruitment program during the term of this Settlement Agreement that is designed to increase the number of qualified blacks, Hispanics, Asians and females that apply and are hired for Custodian and Custodian Engineer positions. Compliance with the recruitment obligations delineated in this Settlement Agreement shall be determined by Defendants' good faith implementation and administration of the recruitment program. The minimum requirements of this recruitment program, which Defendants may expand as they see fit, are set forth in paragraphs 19-22, infra. 19. No later than three (3) weeks prior to the closing date of the application period for an examination for permanent Custodian or Custodian Engineer positions, Defendants shall:
(a) prominently post advertisements for the examination and/or notices of examination in all public schools in locations that are clearly visible to all Custodians' and Custodian Engineers' employees;
(b) place prominent print advertisements for the examination in the following newspapers: The Daily News, The New York Times, The New York Post, The Amsterdam News, The Chinese World Journal, Korea Times, India Abroad and El Diario. Such advertisements shall be published on at least two (2) occasions for each paper;

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(c) (i) place advertisements for the examination, twice daily, two times a week, for one week, during weekday mornings and evening (7 a.m. until 9 a.m. and 6 p.m. until 8 p.m.) on radio stations whose audience reflects a significant black, Hispanic, or Asian listenership; (ii) make announcements for all Custodian and/or Custodian Engineer examinations, twice daily, three times a week, for two weeks, during weekday mornings and evening (7 a.m. until 9 a.m. and 6 p.m. until 8 p.m.) on the "Crosswalks" cable television channel(s) and on the Board of Education's television channel (WNYC);
(d) send and/or distribute notices of examination to all locations on the Community Mailing List, attached hereto as Appendix B;
(e) participate in selected job fairs, career, placement, and other programs sponsored by schools, colleges, and civil agencies, to be agreed upon by the parties.
20. In recruiting for provisional Custodian and Custodian Engineer positions, Defendants shall (a) prominently post notices or advertisements for the positions in all public schools in locations that are clearly visible to all Custodians' and Custodian Engineers' employees; (b) send and/or distribute notices or advertisements for the positions to all locations on the Community Mailing List; and (c) place prominent print advertisements for the positions in the following newspapers: The Daily News, The Amsterdam News, The Chinese World Journal, Korea Times, India Abroad and El Diario. Such Advertisements shall be published on one (1) occasion for each paper. If the applications received as the result of the foregoing recruitment activity exceed by a multiple of five the number of provisional positions needed to be filled at the time of such recruitment, Defendants may (a) cease any further recruitment activity for the aforementioned provisional positions; (b) retain the applications received for the purpose of future provisional hiring, if any; and (c) refrain from further recruitment activity for provisional positions in the same job title until the applications received as a result of the foregoing recruitment activity have been exhausted. If the applications received as the result of the foregoing recruitment activity do not exceed by a multiple of five the number of provisional positions needed to be filled at the time of such recruitment, the parties may jointly determine the extent of further recruitment activity to be conducted by Defendants. Paragraphs 19(c) and (e), supra, shall not apply to recruitment activities for provisional positions.
21. Each notice of examination or job advertisement, including radio advertisements, for Custodian or Custodian Engineer positions, whether in print or verbal forms, shall:
(a) emphasize that Defendants are equal opportunity employers that are actively recruiting qualified blacks, Hispanics, Asians, and women;
(b) describe the positions and job duties;
(c) describe the minimum qualifications required for the positions;
(d) describe the minimum starting salaries for the positions;
(e) describe the application procedures and the closing date for applications for the positions; and
(f) specify the name, address, telephone number, and hours of operation of the office to which inquiries and requests for applications may be made.
22. Defendants shall create a standardized form to be provided to and completed by applicants for all Custodian or Custodian Engineer examinations or provisional positions. The form shall specify the date

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of the application, the applicant's name, social security number, Race, National Origin, sex, mailing address and place of residence, the job applied for, and how the applicant learned of the job opening (broken down by several categories, including but not limited to: relative or acquaintance; newspaper advertisement; radio advertisement; community organization; job fair; posting in school, college, or at one of Defendants' office locations). The form shall appear on a separate page of the application and shall state that providing information relating to Race, National Origin, and Gender is optional. Defendants shall tear off this form from each application prior to submitting it to any individual involved in the hiring process, use it in preparing reports to be provided to the United States pursuant to Section VIII of this Settlement Agreement, and make it available to the United States upon request pursuant to Section VIII of this Settlement Agreement.
23. Defendants shall bear the cost of all advertising and publication requirements set forth in Section V of this Settlement Agreement.
24. After Defendants have engaged in recruitment efforts for Custodian or Custodian Engineers, the parties will meet at the request of either side to evaluate the effectiveness of such efforts and to determine whether any modifications are needed.
VI. TERMS RELATING TO TESTING CLAIM
25. Defendants shall not administer any of the Challenged Examinations again, or any written examination derived substantially therefrom.
26. Defendants will consult with an expert to be designated by the United States on ways to attempt to reduce the adverse impact of Custodian Engineer (BOE) Examination No. 7004 through any available means that complies with applicable federal law. Accordingly, Defendants shall not establish an eligible list from Exam No. 7004 until this consultation effort has been completed. If Defendants re-administer the 7004 Examination during the term of this Settlement Agreement, and if the written examination has adverse impact, Defendants shall continue to consult with the United States' designated expert on an alternative use of the examination that complies with applicable federal law and reduces the adverse impact of the examination.
27.Nothing herein shall prohibit defendants from continuing to hire off the eligible list from Custodian Exam No. 1074, provided that if the 31 Offerees who may be entitled to conversion from provisional Custodian to permanent Custodian under this Settlement Agreement have not yet been converted, there will remain sufficient vacancies in the title of Custodian to do so. In addition, nothing herein shall prohibit defendants from hiring off the eligible list from Custodian Engineer (BOE) Exam No. 7004 after the completion of the consultation referred to in paragraph 26 above, subject to the proviso in the previous sentence, and provided further that if the 12 Offerees who may be entitled to conversion from provisional Custodian Engineer to permanent Custodian Engineer under this Settlement Agreement have not yet been converted, there will remain sufficient vacancies in that title to do so.
28. If Defendants develop, administer and/or utilize an examination for Custodians and/or Custodian Engineers other than Custodian Engineer (BOE) Examination No. 7004, that examination must comply substantially with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. (1998). Defendants must consult with the United States' designated expert as to the validity of such examinations. As part of this consultation effort, upon the request of the United States, prior to their use Defendants shall supply evidence of job-relatedness for the examinations Defendants intend to use for Custodian or Custodian Engineer positions. For purposes of this paragraph, evidence of job-relatedness shall not be construed to require Defendants to conduct an empirically-based validity study for any

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examination. However, if Defendants conduct such validity study, the study and the data underlying the study shall be provided to the United States, upon request, for purposes of the consultation effort required under this paragraph.
29. The United States shall bear the costs associated with its designated expert. If any action taken by Defendants pursuant to their consultation with the United States' designated expert under this section is challenged, the United States and Defendants shall take all reasonable steps to defend fully the lawfulness of any such action.
30. Defendants shall select all provisional Custodians and Custodian Engineers using lawful procedures that are job-related and consistent with business necessity.
31. Whenever any applicant is interviewed as part of the selection procedure for a Custodian or Custodian Engineer position, Defendants shall use a written list of job-related questions and record results on the existing Board of Education Interview Form. Any substantive questions asked in addition to the standard written questions shall be summarized in writing by the interviewer(s). The written interview questions and Interview Forms, as delineated in this paragraph, shall be provided to the United States upon request, or pursuant to Section VIII of this Settlement Agreement.
32. If, during the term of this Settlement Agreement, Defendants change the qualification criteria for the selection of Custodians or Custodian Engineers, Defendants shall provide the United States sixty (60) days advance notice in writing of the proposed change(s) and the reasons for such change(s).
33. If Defendants administer competitive examinations for permanent Custodians and/or Custodian Engineers, Defendants shall create and administer test preparation sessions for up to 200 applicants and create and disseminate, upon request, study materials at cost. If the aforementioned test preparation sessions are oversubscribed, preference will be given to black, Hispanic, Asian and women applicants. Defendants shall advertise and post notices of the test preparation sessions and availability of study materials at the places and times delineated in paragraph 19(a), and in The Chief, The Amsterdam News, and El Diario. All advertisements and notices shall emphasize that Defendants are equal opportunity employers that are actively recruiting qualified blacks, Hispanics, Asians, and women.
VII. PROCEDURE FOR FAIRNESS HEARING AND FOR DETERMINING AND AWARDING PERMANENT STATUS/RETROACTIVE SENIORITY TO OFFEREES
34. Upon the parties' execution of this Settlement Agreement, the parties shall file a joint motion with the Court stating that the parties have entered into this Settlement Agreement and requesting that the Court schedule a fairness hearing no later than ninety (90) days after the date the joint motion is granted by the Court for purposes of: (1) hearing all objections to the terms of this Settlement Agreement; and (2) resolving all disputes regarding the proposed conversion of Offerees from provisional to permanent status and granting of retroactive seniority, so that the Settlement Agreement may be entered by the Court.
35. Within fifteen (15) days after notification from the Court of the date of the fairness hearing, Defendants shall provide notice to all interested persons and parties of their right to object to the provisions of the Settlement Agreement, by, inter alia: (1) sending notice to all Custodians and Custodian Engineers by first-class mail to their last known home address; (2) sending notice to Local 891 of the International Union of Operating Engineers by first-class mail; (3) sending notice to the individuals who remain on the eligible list for Custodian Examination No. 1074 by first-class mail to their last known home address; (4) sending notice to all individuals who took Custodian Engineer (BOE)

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Examination No. 7004 by first-class mail to their last known home address; (5) posting notices at the Board of Education, the Department of Citywide Administrative Services, and all New York City public schools; and (6) arranging for published notices, twice during two (2) consecutive weeks, in each of the following newspapers: The New York Times, The New York Post, The Daily News, The Chief, The Amsterdam News, The Chinese World Journal, Korea Times, India Abroad and El Diario. The forms of these Notices shall be substantially in the form set forth in Appendices C & D hereto.
36. Within fifteen (15) days after notification from the Court of the date of the fairness hearing, Defendants shall, in addition to the requirements set forth in paragraph 35, supra, provide written notice by first-class mail ("notification letter"; Appendix E hereto) to all Offerees that, pursuant to the Settlement Agreement, they are entitled to conversion to permanent status and/or a proposed retroactive seniority date upon their execution of a Release of all claims, which will be provided by Defendants at a later date in accordance with paragraph 39, infra.
37. All objections to the relief provided pursuant to this Settlement Agreement must be filed in writing with the Clerk of the Court, with copies mailed to counsel for the parties, at least thirty (30) days before the scheduled fairness hearing. All objections must state the objector's name, address, telephone number, a brief description of the objection, a description of the basis for the objection, the identity of all documents (if any) in support of the objector's position, the name and address of the objector's counsel (if any), and a statement as to whether the objector wishes to be heard at the fairness hearing.
38. The parties may file written responses to any objections filed in accordance with paragraph 37, supra, prior to the fairness hearing.
39. Within ten (10) days after the date the Court enters this Settlement Agreement, Defendants shall provide an offer letter and Release to all Offerees by first-class mail. The offer letter and Release shall be accompanied by a self-addressed, stamped envelope. The Release will discharge Defendants from all claims arising out of any discrimination on the basis of Race, National Origin, or sex with respect to the positions of Custodian or Custodian Engineer occurring before the execution of the Release. The offer letter and Release shall be substantially in the form set forth in Appendices F & G hereto.
40. An Offeree shall have thirty-three (33)days from the date of the mailing of the offer letter from Defendants that he or she is entitled to conversion to permanent status and/or retroactive seniority in which to return the executed Release to Defendants. If an Offeree notifies Defendants that he or she does not accept the relief or, absent good cause, does not return the Release within the thirty-three (33)day period, Defendants shall be released from their obligation to him or her under this Settlement Agreement.
41. Upon receipt of their executed Releases by Defendants, all Offerees who return such executed Releases within the thirty-three (33)day period will be converted from provisional to permanent status and/or will receive their retroactive seniority.
42. Defendants shall bear the cost of all mailing, publication, and advertising notices required under Section VII of this Settlement Agreement.
VIII. RECORDS AND REPORTS
43. For purposes of this Settlement Agreement, a reporting period shall run from January 1 through June 30 and from July 1 through December of each year during the term of this Settlement Agreement.

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44. Within thirty (30) days after the close of each reporting period, Defendants shall provide to the United States a compliance report containing the following information for the Custodian and Custodian Engineer positions:
(a) Each applicant's name, address, social security number, Race, National Origin, Gender, and how applicant learned of the position;
(b) Adverse impact data and test results for the examination(s) administered or utilized by Defendants;
(c) Eligibility lists from the examination(s);
(d)Appointments made, either permanently or provisionally, Interview Forms and the existing Applicant Flow Charts;
(e) Text of any print or other media advertisement or vacancy/notice of examination announcement;
(f) List of all places (or, where appropriate, precise information regarding radio or television advertisements or appearances at job fairs) where advertisements or vacancy/notices of examination were posted, published, aired, or contacted;
(g) All complaints or allegations of discrimination based on Race, National Origin, or Gender by any Custodian or Custodian Engineer, or applicants or prospective applicants for Custodian or Custodian Engineer positions;
If any of the information set forth above does not exist or is not applicable for the relevant reporting period, Defendant shall inform the United States in writing.
45. Upon reasonable notice to Defendants, and upon a showing of good cause, the United States may request, inspect, and copy records or documents underlying the contents of any compliance report. Requests for such additional materials must be made in writing and must specify with reasonable particularity the information, records, or documents being sought, as well as the reason for the request.
46. If any Offeree is discharged during the probationary period, Defendants shall, within 30 days of the discharge, provide the United States with the Offeree's name, the date of the discharge, the reason(s) underlying the discharge, and all supporting documentation relating to the discharge.
IX. RETENTION OF JURISDICTION
47. The Court shall retain jurisdiction over this lawsuit during the term of this Settlement Agreement to resolve all disputes that may arise from or relate to Defendants' compliance with this Settlement Agreement. The Court's jurisdiction shall automatically terminate at the expiration of this Settlement Agreement as set forth in paragraph 11, supra.
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// // // // // // // // // // // // // // // // // // Stipulated and Agreed to on this ____ day of _______________ by: MICHAEL D. HESS Corporation Counsel for the City of New York ________________________ NORMA A. COTE (NC-8419) DRAKE A. COLLEY (DC-6397) Attorneys City of New York Law Department 100 Church Street Room 2-165
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New York Board of Education, Settlement Agreement
New York, New York 10007 (212) 788-0865
For Defendants New York City Board of Education, et al.
BILL LANN LEE Acting Assistant Attorney General Civil Rights Division
_________________________ MARYBETH MARTIN (MM-7504) LUIS A. LAVIN (LL-3850) TANA LIN (TL-0173) AARON D. SCHUHAM (AS-3382) Attorneys U.S. Department of Justice Civil Rights Division Employment Litigation Section P.O. Box 65968 Washington, D.C. 20035-5968 (202) 514-7013 For Plaintiff United States of America
Good cause appearing therefor, IT IS SO ORDERED.
ENTERED this _____ day of ____________ 1999.

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_______________________________ UNITED STATES DISTRICT JUDGE

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------){ UNITED STATES OF AMERICA,
Plaintiff,

-r=o __ :-. ,u--1~!~11
* * u.S. IN...C.-L.E....R..,K..S~ntO'"F'-FrICc'E"' N..Y: JUL 2 5 2003
P.M.-----
TIME A.M.-----

-against-
NEW YORK CITY BOARD OF EDUCATION, et al.,

MEMORANDUM AND ORDER 96-CV-374 (RML)

Defendants. -------------------------------------------------------------------){

APPEARANCES:

RALPH F. BOYD, JR. Assistant Attorney General United States Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Patrick Henry Building, Room 4609 Washington, D.C. 20530 BY: John M. Gadzichowski, Esq.
Charles E. Leggott, Esq. Jodi B. Danis, Esq. Keisha Dawn Bell, Esq. Counsel for Plaintiff United States

CENTER FOR INDIVIDUAL RIGHTS 1233 Twentieth Street, N.W., Suite 300 Washington, D.C. 20036 BY: Michael E. Rosman, Esq.
Hans Bader, Esq. Co-Counsel for Brennan Intervenors
McCARTER & HIGGINS 39 Avenue of the Commons, Suite 200 Shrewsbury, N.J. 07702 BY: George W. C. McCarter, Esq. Co-Counsel for Brennan Intervenors

MICHAEL A. CARDOZO Corporation Counsel of the City ofNew York 100 Church Street New York, N.Y. 10007 BY: Norma A. Cote, Esq. Counsel for the Municipal Defendants

AMERICAN CIVIL LIBERTIES UNION Women's Rights Project 125 Broad Street, 18th Fl. New York, NY 10004 BY: Emily J. Martin, Esq.
Lenora Lapidus, Esq. Counsel for Caldero Intervenors

LEVY, United States Magistrate Judge: Plaintiff United States requests a formal written ruling on certain discovery
disputes addressed by this court at a telephonic hearing on February 2, 2003. (See Letter to the court from Jodi B. Danis, Esq., dated May 22, 2003.) The disputes relate to the Brennan Intervenors' discovery requests, which sought records of all commuuications between the Department of Justice and representatives of the Municipal Defendants concerning the Offerees. In response to tbe Brennan Intervenors' requests, the United States produced a privilege log. (See id., Ex. B.) Most of the documents listed on the privilege log are e-mails between Aaron Schuham or Meredith Burrell, then attorneys at the Department of Justice, and Norma Cote, couusel for the Muuicipal Defendants. (See id.)
At the hearing, the court made a preliminary determination that the United States and the Muuicipal Defendants could assert a joint defense privilege to the Brennan Intervenors' document requests. (See Transcript of Civil Cause for Status Conference, dated Feb. 3, 2003, at 37.) The court also observed that tbe communications between couusel for the United States and counsel for the Municipal Defendants were not directly relevant to the ultimate question this court is to decide, i.e., whether the Settlement Agreement at issue should be approved as lawful, fair, reasonable, adequate, and consistent with the public interest. See United States v. New York City Bd. ofEduc., 85 F. Supp.2d 130, 136 (E.D.N.Y. 2000) (citing EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985); Vulcan Soc'y of the New York City Fire Dep't, Inc. v. City of New York, 96 F.R.D. 626, 629 (S.D.N.Y. 1983)).
The joint defense privilege is often referred to as the "common interest" rule, and is not a separate privilege but '"an extension of the attorney client privilege."' United States v.
-2-

Schwimmer, 892 F.2d 237,243 (2d Cir. 1989) (quoting Waller v. Financial Com. of Am., 828 F.2d 579, 583 n. 7 (9th Cir. 1987)). See also Bruker v. City of New York, No. 93 CIV. 3848, 2002 WL 484843, at *4 (S.D.N.Y. Mar. 29, 2002) ("The joint defense privilege or common interest rule is not really a separate privilege. Rather, it is a limited exception to the general rule that the attorney-client privilege is waived when a protected communication is disclosed to a third party outside the attorney-client relationship"). It protects "the confidentiality of communications from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties." Schwimmer, 892 F.2d at 243; accord Bank of America, N.A. v. Terra Nova Ins. Co. Ltd., 211 F. Supp.2d 493, 496 (S.D.N.Y. 2002); Strougo v. BEA Assocs., 199 F.R.D. 515, 520 (S.D.N.Y. 2001); Shamis v. Ambassador Factors Corp., 34 F. Supp.2d 879, 893 (S.D.N.Y. 1999). Before a communication can be protected under the common interest rule, the communication must meet the other applicable elements of the attorney-client privilege. In other words, the communications must be for the purpose of giving and receiving legal counsel. See Gulflslands Leasing, Inc. v. Bombardier Capital, Inc., No. 02 Civ. 2839,2003 WL 21251569, at *6 (S.D.N.Y. May 29, 2003). Here, it appears undisputed that, except for the fact that the communications were between counsel for different parties, they otherwise satisfy the requirements ofthe attorney-client privilege.
The common interest rule is intended to allow clients to share information with an attorney for another party who shares the same legal interest. See SR Int'l Bus. Ins. Co. v. World Trade Center Props., LLC, No. 01 Civ. 9291,2002 WL 1334821, at *3 (S.D.N.Y. June 19, 2002). Like all privileges, the common interest rule is narrowly construed. See,~, United States v. Weissman, 195 F.3d 96, 100 (2d Cir. 1999) ("[p]rivileges should be narrowly construed
-3-

, . -
and expansions cautiously extended") (citing University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990)). There are two elements of the common interest rule: (1) the party who asserts the rule must share a common legal interest with the party with whom the information was shared, and (2) the communications for which protection is sought must have been designed to further that interest. See Johnson Matthey, Inc. v. Research Com., No. 01 CIV. 8115,2002 WL 1728566, at* 6 (S.D.N.Y. July 24, 2002). "The key consideration is that the nature of the interest be identical, not similar, and be legal, not solely commercial." North River Ins. Co. v. Columbia Cas. Co., No. 90 Civ. 2518, 1995 WL 5792, at *3 (S.D.N.Y. Jan. 5, 1995) (quotation marks and citation omitted); accord Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995). Contrary to the Brennan Intervenors' assertion, there is no requirement that a joint defense agreement be in writing or relate to the litigation in its entirety. (See Letter to the court from Michael E. Rosman, Esq., dated Jan. 3, 2003, at 3.)
With respect to the specific communications at issue here, I have reviewed the privilege log and I find that the United States and the Municipal Defendants had shared legal interests and that the communications were designed to further those interests. At that point in the litigation the United States and the Municipal Defendants, while still adversaries, had entered into a settlement and were jointly defending against objections to the Agreement and the Brennan Intervenors' motions. To do so, it was necessary for them to share information and discuss strategy.
I also find that the attorneys' thought processes as to which individuals met the criteria to be Offerees and what benefits the Offerees were to receive from the settlement are not directly relevant to the question of whether this court should approve the Agreement. The
-4-

. . } \ ,_
Agreement largely speaks for itself. If the Intervenors wish to argue that certain Offerees did not

meet the criteria, that certain non-Offerees did, or that the criteria were erroneous, nothing is

preventing them from doing so. All of the information they need as to who the Offerees are and

what the criteria were is in the court record and is available to them.

SO ORDERED.

Dated: Brooklyn, New York JulyJ!', 2003

ROBERT M. LEVY / United States Magistrate Judge

-5-

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

)

JOHN BRENNAN, JAMES G. AHEARN,

)

KURT BRUNKHORST, SCOTT SPRING,

)

ERNEST TRICOMI, and DENNIS

)

MORTENSON

)

)

Plaintiffs/Intervenors,

)

)

v.

)

)

NEW YORK CITY BOARD OF EDUCATION; )

CITY OF NEW YORK; WILLIAM J.

)

DIAMOND, COMMISSIONER, NEW YORK )

CITY DEPARTMENT OF CITYWIDE

)

ADMINISTRATIVE SERVICES

)

(in his official capacity);

)

NEW YORK CITY DEPARTMENT OF

)

CITYWIDE ADMINISTRATIVE SERVICES, )

)

Defendants.

)

)

CIVIL ACTION NO. 96-0374 (FB) (RL)
SECOND AMENDED COMPLAINT IN INTERVENTION

Plaintiffs/intervenors John Brennan, James G. Ahearn, Kurt Brunkhorst, Scott Spring, Ernest Tricomi, and Dennis Mortenson, by way of Complaint in Intervention, allege as follows:
JURISDICTION

1. This is an action arising under the Constitution and laws of the United States. Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1331 and 1343(3).
ALLEGATIONS OF FACT
1. Plaintiffs/intervenors John Brennan, James G. Ahearn, and Kurt Brunkhorst are permanently employed as Custodian Engineers, Assignment Level 2, by defendant New York City Board of Education.
2. Plaintiffs/intervenors Scott Spring, Ernest Tricomi, and Dennis Mortenson are permanently employed as Custodian Engineers, Assignment Level 1, by defendant New York City Board of Education.
3. Each of plaintiffs/intervenors is a Caucasian male. 4. The New York City school system operated by defendants contains many positions for Custodian Engineers, with compensation depending upon the size of the schools to which a particular Custodian Engineers is assigned. Assignment to schools is competitive and determined significantly by the seniority dates of the applicants for the position. 5. The Complaint filed by plaintiff United States of America ("United States") was based on Section 707 of Title VII,
2

42 U.S.C. § 2000e-6, which authorizes the Attorney General to bring an action whenever she believes that any person or group of persons is engaged in a pattern or practice of discriminatory behavior in violation of the rights guaranteed by Title VII, 42 U.S.C. § 2000e-2, where "the pattern or practice is of such nature and is intended to deny the full exercise of th[ose] rights."
6. The United States has not pursued any theories of intentional discrimination in this litigation.
7. Instead, the United States has relied on two different disparate impact theories (i.e., theories that required no showing of discriminatory intent). First, it claimed that three different civil service exams for the positions of Custodian and Custodian Engineer (now referred to as Custodian Engineer Level 1 and Custodian Engineer Level 2) had a disparate impact against blacks and Hispanics (the "testing claims"). Second, it claimed that the defendants' recruiting practices had a disparate impact against blacks, Hispanics, women, and Asians (the "recruiting claim").
8. The United States did not attempt to show that the examinations challenged in the testing claims had any disparate impact against women or Asians.
3

9. The Answer filed by plaintiffs/intervenors' employer, defendant New York City Board of Education, among others, denies all allegations of wrongful discrimination.
10. This Court has made no finding that defendants have violated Title VII.
11. On or about February 11, 1999, the United States and defendants entered into a certain Settlement Agreement, which, subject to Court approval, would resolve all allegations of wrongful discrimination alleged in the Complaint filed by the United States.
12. The Settlement Agreement provides that defendants shall award to a class of persons referred to as Offerees positions as permanent Custodians or Custodian Engineers, with retroactive seniority dates. Only black, Hispanic, Asian and female persons are Offerees or are eligible to be "Offerees."
13. Many of the Offerees did not take any of the challenged examinations. Other Offerees have taken an exam, but the Settlement Agreement would give them retroactive seniority from a date earlier than the date upon which they took the exam.
14. None of the Offerees were the victims of any discriminatory recruiting practices. Each of them applied for and obtained a job.
4

15. The Settlement Agreement does not merely restore the Offerees to positions or seniority they would have held but for alleged discrimination.
16. If the Settlement Agreement were approved, at least some of the retroactive seniority dates to be awarded to the Offerees give the Offerees more seniority than that enjoyed by plaintiffs/intervenors.
17. The Settlement Agreement does not require defendants to award back pay or money damages to any persons. The sole burden and expense of the Settlement Agreement, if approved by the Court and implemented by the parties, would be borne by plaintiffs/intervenors and persons similarly situated.
18. In addition to filing this Complaint, plaintiffs/intervenors Brennan, Brunkhorst, Ahearn, Tricomi, and Mortenson filed written objections to the Settlement Agreement.
COUNT ONE: VIOLATION EQUAL PROTECTION AND CIVIL RIGHTS
19. Plaintiffs/intervenors repeat and reallege each of the allegations in paragraphs 1-19 as if fully set forth herein.
20. The retroactive grants of seniority in the Settlement Agreement are based in part on an individual's race, ethnicity, or sex, and constitute illegal race and sex discrimination in
5

violation of Title VII, the Equal Protection Clause, and 42 U.S.C. §§ 1981, 1983, and 1985(3).
21. Defendants have no compelling government interest to justify the use of race. Even if they had such an interest, the proposed retroactive grant of seniority in the Settlement Agreement is not narrowly tailored to meet that interest.
22. Defendants have no important government interest to justify the use of sex as a classification. Even if they had such an interest, the proposed retroactive grant of seniority is not substantially related to the achievement of that interest.
23. The proposed Settlement Agreement would constitute illegal employment discrimination against plaintiffs/intervenors on account of their race and sex, in violation of 42 U.S.C. § 2000e-2; would deprive plaintiffs/intervenors of equal protection of the laws and enjoyment of their civil rights as citizens of the United States, in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1983; would deprive plaintiffs/intervenors of their right to contract without racial discrimination in violation of 42 U.S.C. §§ 1981 and 1983; and would constitute a conspiracy to deprive plaintiffs/intervenors of their civil rights under 42 U.S.C. § 1985(3).
6

COUNT TWO: BREACH OF CONTRACT
24. Plaintiffs/intervenors repeat and reallege each of the allegations in paragraphs 1-24 as if fully set forth herein.
25. Custodian Engineers compete for assignments to particular schools pursuant to a "rating and transfer plan" set forth in a collective bargaining agreement ("CBA") between the New York City Board of Education and Local 891, International Union of Operating Engineers. Those with more seniority have a significant advantage in this competition. Under the CBA, seniority is determined by actual length of service in a given position.
26. Each of the plaintiffs/intervenors has an employment contract with the New York City Board of Education and is a third-party beneficiary of the CBA. The rules and provisions of the CBA are part of the contractual relationship between plaintiffs/intervenors and the defendants.
27. Plaintiffs/intervenors have not consented to the proposed Settlement Agreement or the retroactive grants of seniority it contains.
28. The retroactive grants of seniority have not been proven necessary to remedy a violation of Title VII after a trial.
7

29. The defendants have breached their contractual obligations to plaintiffs/intervenors by granting seniority to the Offerees based on their race and/or sex, and thus denying plaintiffs/intervenors the greater relative seniority to which they are contractually entitled by reason of their actual service, which is longer than the actual service of the Offerees.
30. Plaintiffs/intervenors have no adequate remedy at law.
COUNT THREE: FAILURE TO SUPPORT A CLAIM FOR PATTERN OR PRACTICE DISCRIMINATION
31. Plaintiffs/intervenors repeat and reallege each of the allegations in paragraphs 1-31 as if fully set forth herein.
32. Under Section 707 of Title VII, 42 U.S.C. § 2000e-6, the United States can bring a Title VII lawsuit only on the basis of a "pattern or practice" of discriminatory behavior that violates Title VII rights, and only where "the pattern or practice is of such nature and is intended to deny the full exercise of th[ose] rights."
33. The United States has failed to pursue any theories of intentional discrimination in this litigation.
34. Thus, the United States has failed to submit any evidence in support of a pattern or practice of Title VII violations that would permit it to obtain relief under Section
8

707. 35. Accordingly, there is no legal basis for this Court to
enter the proposed Settlement Agreement as a consent decree.
WHEREFORE plaintiffs/intervenors demand judgment rejecting the "Settlement Agreement"; enjoining plaintiff and defendants from providing race-based or sex-based retroactive grants of seniority or any other impermissibly discriminatory remedy; and awarding plaintiffs/intervenors their attorneys' fees, pursuant to 42 U.S.C. §§ 1988 and 2000e-5(k).
McCARTER & HIGGINS 39 Avenue of the Common, Suite 200 Shrewsbury, NJ 07702 (732) 544-5050 Co-counsel for Plaintiffs/Intervenors
By: George W.C. McCarter (GM 6978) A Member of the Firm
CENTER FOR INDIVIDUAL RIGHTS 1233 20th Street, NW, Ste 300 Washington, D.C. 20036 (202) 833-8400 Co-Counsel for Plaintiffs/Intervenors
By: Michael E. Rosman (MER 6308)
9

 
 Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------x

UNITED STATES OF AMERICA, Plaintiff,

: 96 CV 0374
: (FB) (RML)

-against-

:

NEW YORK CITY DEPARTMENT OF EDUCATION, et al.:

Defendants.

:

and JOHN BRENNAN, et al., on behalf of

:

themselves and all others similarly

situated,

:

BRENNAN INTERVENORS' THIRD AMENDED COMPLAINT IN INTERVENTION

Intervenors,

:

and JANET CALDERO, et al.

:

Intervenors.

:

and PEDRO ARROYO, et al.

:

Intervenors

:

---------------------------------------------x

JOHN BRENNAN, et al.

:

on behalf of themselves and others

similarly situated,

:

Plaintiffs, -against-

: 02 Civ. 0256 (FB) (RML)
:

JOHN ASHCROFT, ALEXANDER ACOSTA, et al.

:

Defendants.

:

---------------------------------------------x

Intervenors John Brennan, James G. Ahearn, Scott Spring, and

Dennis Mortensen (the "Brennan Intervenors"), by way of a

complaint in intervention in United States v. New York City Bd of

Education, and seeking to represent a class of similarly-situated

individuals, allege as follows:

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 2 of 11
Jurisdiction
1. This is an action arising under the Constitution and laws of the United States. Jurisdiction is vested in this Court pursuant to 28 U.S.C. §§ 1331 and 1343(3).
Allegations of Fact
2. John Brennan, James G. Ahearn, and Dennis Mortensen are permanently employed as Custodian Engineers, Assignment Level 2, by defendant New York City Department of Education.
3. Scott Spring is permanenty employed as Custodian Engineers, Assignment Level 1, by defendant New York City Department of Education.
4. Each of the Brennan Intervenors is a Caucasian male.
5. Defendant Department of Education utilizes many Custodian Engineers. A Custodian Engineer's compensation depends upon the size of the schools to which (s)he is assigned. Assignment to schools is competitive and determined significantly by the seniority dates of the applicants for the position.
6. With the primary exception of the Offerees described herein, each Custodian Engineer's "seniority date" is related to the date upon which (s)he began working as a permanent employee at his or her current level.
7. The Complaint filed by plaintiff United States of 2

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 3 of 11
America ("United States") was based on Section 707 of Title VII, 42 U.S.C. § 2000e-6, which authorizes the Attorney General to bring an action whenever she believes that any person or group of persons is engaged in a pattern or practice of discriminatory behavior in violation of the rights guaranteed by Title VII, 42 U.S.C. § 2000e-2, where "the pattern or practice is of such nature and is intended to deny the full exercise of th[ose] rights."
8. The United States has not pursued any theories of intentional discrimination in this litigation.
9. Instead, the United States has relied on two different disparate impact theories (i.e., theories that required no showing of discriminatory intent). First, it claimed that three different civil service exams for the positions of Custodian and Custodian Engineer (now referred to as Custodian Engineer Level 1 and Custodian Engineer Level 2) had a disparate impact against blacks and Hispanics ( the "testing claims"). Second, it claimed that the defendants' recruiting practices had a disparate impact against blacks, Hispanics, women, and Asians (the "recruiting claim").
10. The United States has not tried to prove that the examinations challenged in the testing claims had any disparate impact against women or Asians.
11. The Answer filed by intervenors' employer, defendant 3

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 4 of 11
New York City Board of Education, among others, denies all allegations of wrongful discrimination.
12. This Court has made no finding that defendants have violated Title VII. Defendants have not violated Title VII.
13. The United States has not alleged that defendants have engaged in intentional employment discrimination. The Court has made no finding that defendants have engaged in intentional employment discrimination. Defendants have not engaged in intentional employment discrimination.
The Settlement Agreement
14. On or about February 11, 1999, the United States and defendants entered into a certain Settlement Agreement, which, subject to Court approval, would resolve all allegations of wrongful discrimination alleged in the Complaint filed by the United States.
15. Defendants continue to deny all allegations that they violated Title VII in the Settlement Agreement.
16. The Settlement Agreement states that the United States and Defendants "agree to the entry of this Settlement Agreement, which resolves all issues that were or could have been raised by the United States in its Complaint."
17. The Settlement Agreement states that it "shall remain
4

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 5 of 11
in force for a period of four years from the last date of execution of the Settlement Agreement." Four years from the last date of execution was February 11, 2003.
18. The Agreement also states that the Court shall "retain jurisdiction over this lawsuit during the term of this Settlement Agreement to resolve all disputes that may arise from or relate to Defendants' compliance with this Settlement Agreement," but that such "jurisdiction shall automatically terminate at the expiration of this Settlement Agreement." Accordingly, the Court's stipulated jurisdiction to resolve disputes over defendants' compliance with the Agreement terminated on February 11, 2003.
19. The United States and defendants have not extended the terms of the Settlement Agreement.
20. The United States no longer agrees to the entry of all the relief provided to the Offerees (discussed below) as a judgment in this case.
Benefits To The Offerees
21. The Settlement Agreement provides that defendants shall award to a class of persons referred to as Offerees positions as permanent Custodians or Custodian Engineers, with retroactive seniority dates. These benefits are set forth in Paragraphs 13 through 16 of the Agreement.
5

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 6 of 11
22. Only black, Hispanic, Asian and female persons were intended to be Offerees.
23. The benefits to the Offerees provided in Paragraphs 13 through 16 of the Agreement were provided in the late winter or early spring of 2000 in exchange for the Offerees' release of liability against the defendants. All but one of the Offerees accepted this bargain and the benefits provided in the Agreement.
24. Some of the Offerees did not take any of the challenged civil service examinations described in paragraph 9.
25. Other Offerees have taken an exam, but are not members of the racial groups against which the United States claims the exams had a disparate impact.
26. As to exam-takers who were members of those racial groups, the Settlement Agreement gave some of them retroactive seniority from a date earlier than the hire date of anyone who actually passed it.
27. Assuming arguendo that there were discriminatory testing practices, defendants would not have selected the testtaking Offerees to be permananent Custodians or Custodian Engineers even if there had been different selection procedures.
28. Assuming arguendo that there were discriminatory recruiting practices, none of the Offerees were the victims of such practices.
6

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 7 of 11
29. The Settlement Agreement does not merely restore the Offerees to positions of seniority they would have held but for alleged discrimination.
Harm to the Brennan Intervenors And The Class
30. The Brennan Intervenors and the class are affected by the provisions of Paragraphs 13 through 16 because the permanent status and retroactive seniority provided to the Offerees may affect their ability to obtain certain job benefits that are competitively awarded.
31. The Agreement does not require defendants to award back pay or money damages to any persons. The burden of the benefits provided in Paragraphs 13 through 16 of the Agreement are primarily borne by the Brennan Intervenors and persons similarly situated.
32. Custodian Engineers compete for assignments to particular schools pursuant to a "rating and transfer plan" set forth in a collective bargaining agreement ("CBA") between the New York City Board of Education (or its successor) and Local 891, International Union of Operating Engineers. Those with more seniority have an advantage in this competition. Under the CBA, seniority is determined by actual length of service in a given position.
33. Each of the Brennan Intervenors and the members of the
7

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 8 of 11
class is a third-party beneficiary of the CBA. The rules and provisions of the CBA are part of the contractual relationship between them and the defendants.
34. In addition to filing this Complaint, the Brennan Intervenors filed written objections to the Agreement.
Class Action Allegations
35. The Brennan Intervenors seek to represent a class of similarly situated individuals. The class consists of those current Custodian Engineers who were not Offerees, and who intend to apply for job benefits in the future that are determined in whole or part by relative seniority.
36. The class is so numerous as to make joinder impracticable. There are more than 800 Custodian Engineers.
37. In fact, when the United States and the defendants proposed the agreement in 1999, the defendants received 350 written objections. Most of the objections were from Custodians and Custodian Engineers employed by defendant NYC Board of Education objecting to the benefits received by the Offerees.
38. Plaintiffs' claims have questions of law and fact in common with the claims of the class members.
39. Plaintiffs' claims are typical of the claims of the class.
8

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 9 of 11
40. Plaintiffs will adequately represent and protect the interests of the class. They have retained counsel familiar with this matter, and with class litigation in general.
41. Defendants have acted (and are acting) on grounds generally applicable to the class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Accordingly, a class should be certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.
Reasons For Not Entering The Settlement Agreement
42. This court should not enter the provisions of the Settlement Agreement as a consent judgment in this case because there is no current agreement between the parties, and one of the parties to the Agreement does not currently consent to the entry of the relief that is set forth therein.
43. Even if there were consent as to the terms that should be entered, this Court should not enter the provisions of the Paragraphs 13 through 16 of the Agreement as a judgment because, inter alia, (1) the United States has not demonstrated a violation of Section 706 of Title VII or any other provision of Title VII, (2) the race-based and sex-based benefits to the Offerees violate the Fourteenth Amendment to the Constitution, 42 U.S.C. § 1981, and Title VII, (3) those benefits are inconsistent with appropriate relief in a Title VII case because they provide
9

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 10 of 11
relief to those who were not victims of any practice violative of Title VII and (assuming arguendo the recipients had been harmed by such a practice) providing relief that does more than make the recipients whole, and (4) those benefits constitute a breach of the Brennan Intervenors' contractual rights (and the contractual rights of other class members) under a Collective Bargaining Agreement between the Department of Education (or its predecessor) and a union representing Custodian Engineers.
WHEREFORE the Brennan Intervenors demand judgment (1) denying entry of the "Settlement Agreement" as a consent judgment; (2) enjoining plaintiff and defendants from discriminating against the class by continuing to implement race-based or sexbased retroactive grants of seniority, permanent positions, or any other impermissibly discriminatory remedy; and (3) awarding the Brennan Intervenors their attorneys' fees and reasonable expenses, pursuant to 42 U.S.C. §§ 1988 and 2000e5(k). Dated: February 22, 2006
10

Case 1:96-cv-00374-FB Document 584-2 Filed 02/22/2006 Page 11 of 11
Respectfully submitted,
Michael E. Rosman (MR 6308) Christopher J. Hajec (CJH 4413) CENTER FOR INDIVIDUAL RIGHTS 1233 20th Street, NW, Ste 300 Washington, D.C. 20036 (202) 833-8400 Michael Shumsky (MS 2511) KIRKLAND AND ELLIS LLP 655 Fifteenth St. NW Washington, DC 20005-5793 George W.C. McCarter (GM 6978) McCARTER & HIGGINS 39 Avenue of the Common, Suite 200 Shrewsbury, NJ 07702 (732) 544-5050 Attorneys for the Brennan Intervenors
11

 
 Case 1:96-cv-00374-FB Document 566 Filed 08/16/05 Page 1 of 4

UNITED STATES DISTRICT COURT

* * EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X

AUG 1 6 2005

UNITED STATES OF AMERICA,

BR'OOKLYN OFFICE

Plaintiff,

-against-
NEW YORK CITY BOARD OF EDUCATION, et al.,

MEMORANDUM & ORDER No. 96-CV-0374 (FB) (RML)

Defendants.

and

JOHN BRENNAN, et al.,

Intervenors ------------------------------------------------------------X

Appearances: For Intervenors: For Intervenor Brennan: MICHAEL E. ROSMAN, ESQ. Center for Individual Rights 1233 20th Street, N.W. Suite 300 Washington, D.C. 20036
For Intervenor Arroyo: MATTHEW B. CALANGELO, ESQ. NAACP Legal Defense Fund & Educational Fund, Inc. 99 Hudson St., 16th Floor New York, NY 10013

For Defendant New York City Board of Education: LAWRENCE J. PROFETA, ESQ. The City of New York Law Department 100 Church St. New York, NY 10007
For Plaintiff United States: CHARLES E. LEGGOT, ESQ. United States Department of Justice Employment Litigation Section 950 Pennsylvania Ave., N.W. Washington, DC 20530

For Intervenor Caldera: EMILY J. MARTIN, ESQ. American Civil Liberties Union Women's Rights Project 125 Broad St., 18th Floor New York, NY 10004

Case 1:96-cv-00374-FB Document 566 Filed 08/16/05 Page 2 of 4
BLOCK, District Judge: Pending before the Court is a motion by Defendant New York City Board of
Education ("NYC BOE") for a protective order or injunctive relief barring disclosure under the Freedom of Information Act ("FOIA") of certain documents, which were created in connection with mediation of this case. See Letter from Lawrence J. Profeta on behalf of NYC BOE Guly 14, 2005).
I.
On September 10, 2004, intervenors John Brennan et al. ("Brennan") filed a request pursuant to FOIA, 5 U.S.C.§ 552 et seq., for various documents. Thereafter, NYC BOE sought Magistrate Judge Levy's assistance in preventing the disclosure of three documents that were created in connection with mediation in this case. See United States v. New York City Bd. of Educ., No. CV-96-0374 Ganuary 21, 2005). On November 1, 2004, Magistrate Judge Levy precluded the United States from releasing these documents. See id. On January 21,2005, the Court"construe[d] the November 1, 2004 Order as a protective order, pursuant to Federal Rule of Civil Procedure 26(c), barring discovery of the specified documents under Rule 26, but not necessarily under FOIA"; it expressly noted that "[d]isclosure of these documents under FOIA [wa]s a separate matter, which [wa]s not before the Court." Id.
On February 9, 2005, the United States denied the FOIA request. See Letter from Michael E. Rosman on behalf of Brennan (July 18, 2005) at 2. On March 2, 2005, Brennan submitted a letter to the United States, appealing its decision to deny the request.
2

Case 1:96-cv-00374-FB Document 566 Filed 08/16/05 Page 3 of 4
See id. Brennan's appeal is currently pending. See id. II.
Pursuant to Fed. R. Civ. Pro. 26(c), the Court may issue a protective order, as it did here, limiting the scope of discovery or disclosure. A person's right to disclosure under FOIA, however, is separate from that under Rule 26. See, e.g., Mayock v. Nelson, 938 F.2d 1006,1008 (9thCir.1991) ("[A] person's rights under FOIA are neither diminished nor enhanced by 'litigation-generated need' for agency documents." (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 n. 23 (1978))). Therefore, NYC BOE now requests that this Court take the additional step of barring disclosure under FOIA of the three documents.
NYC BOE's motion, however, is inappropriate. As set forth below, the Court does not have jurisdiction to enjoin disclosure of documents under FOIA until the United States has made a final determination to disclose the documents. If the United States ultimately decides to disclose the documents, NYC BOE may then file a separate action to contest that decision.
Pursuant to 5 U.S.C. § 552(a)(4)(B), a district court "has jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant" after the requester has exhausted his or her administrative remedies. See Ruotolo v. Department of Justice, 53 F.3d 4, 8 (2d Cir. 1995) ("The denial of requested information must be appealed to the head of an agency." (citing Oglesby v. United States Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990))). Because
3

Case 1:96-cv-00374-FB Document 566 Filed 08/16/05 Page 4 of 4

NYC BOE is seeking to enjoin disclosure of these documents, § 552(a)(4)(B) is not applicable. Of course, if Brennan is ultimately unsuccessful in his appeal of the United States' denial of his FOIA request, he may file an action in federal court.
Pursuant to the Administrative Procedures Act("APA"), however, a third party may challenge an agency's final decision to disclose a document under FOIA. See Chrysler Corp. v. Brown, 441 U.S. 281,292,317-18 (1979) (Although"[§ 552(a)(4)(B) does not give the authority to bar disclosure[,]" ... a decision to disclose may be reviewed under the APA.). Therefore, if the United States ultimately reverses course and decides to disclose the documents, NYC BOE may file an action in federal court challenging that decision.
CONCLUSION NYC BOE's motion is denied. SO ORDERED.

Dated: Brooklyn, New York
August .1!_, 2005

United States n· trict Judge

4

 
 Case 1:96-cv-00374-FB Document 584 Filed 02/22/06 Page 1 of 1
CENTER FOR INDIVIDUAL RIGHTS
1233 TWENTIETH STREET, N.W., SUITE 300 WASHINGTON, D.C. 20036 ________ (202) 833-8400, ext. 104 FAX: (202) 833-8410 E-mail: cir@mail.wdn.com http://www.cir-usa.org
February 22, 2006
Clerk of the Court U.S. District Court for the
Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: United States v. New York City Board of Education, et al., Eastern District of New York, Civ. No. CV 96-0374 (FB) (RML)
Brennan, et al. v. Ashcroft, et al., Civ. No. 02-0256 (FB) (RML)
Dear Sir or Madam:
We represent John Brennan, et al., in each of the two above-referenced actions, which were consolidated administratively by Judge Block. I am submitting for filing the Brennan Intervenors' Third Amended Complaint in the first of the above-referenced actions. Judge Block granted the motion to file this pleading in an order dated September 26, 2005 (Doc. No. 577).
Very truly yours,
Michael E. Rosman

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------x

UNITED STATES OF AMERICA, Plaintiff,

: 96 CV 0374
: (FB) (RML)

-against-

:

NEW YORK CITY DEPARTMENT OF EDUCATION, et al.:

Defendants.

:

and JOHN BRENNAN, et al., on behalf of

:

themselves and all others similarly

situated,

:

BRENNAN INTERVENORS' THIRD AMENDED COMPLAINT IN INTERVENTION

Intervenors,

:

and JANET CALDERO, et al.

:

Intervenors.

:

and PEDRO ARROYO, et al.

:

Intervenors

:

---------------------------------------------x

JOHN BRENNAN, et al.

:

on behalf of themselves and others

similarly situated,

:

Plaintiffs, -against-

: 02 Civ. 0256 (FB) (RML)
:

JOHN ASHCROFT, ALEXANDER ACOSTA, et al.

:

Defendants.

:

---------------------------------------------x

Intervenors John Brennan, James G. Ahearn, Scott Spring, and

Dennis Mortensen (the "Brennan Intervenors"), by way of a

complaint in intervention in United States v. New York City Bd of

Education, and seeking to represent a class of similarly-situated

individuals, allege as follows:

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 2 of 11
Jurisdiction
1. This is an action arising under the Constitution and laws of the United States. Jurisdiction is vested in this Court pursuant to 28 U.S.C. §§ 1331 and 1343(3).
Allegations of Fact
2. John Brennan, James G. Ahearn, and Dennis Mortensen are permanently employed as Custodian Engineers, Assignment Level 2, by defendant New York City Department of Education.
3. Scott Spring is permanenty employed as Custodian Engineers, Assignment Level 1, by defendant New York City Department of Education.
4. Each of the Brennan Intervenors is a Caucasian male.
5. Defendant Department of Education utilizes many Custodian Engineers. A Custodian Engineer's compensation depends upon the size of the schools to which (s)he is assigned. Assignment to schools is competitive and determined significantly by the seniority dates of the applicants for the position.
6. With the primary exception of the Offerees described herein, each Custodian Engineer's "seniority date" is related to the date upon which (s)he began working as a permanent employee at his or her current level.
7. The Complaint filed by plaintiff United States of 2

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 3 of 11
America ("United States") was based on Section 707 of Title VII, 42 U.S.C. § 2000e-6, which authorizes the Attorney General to bring an action whenever she believes that any person or group of persons is engaged in a pattern or practice of discriminatory behavior in violation of the rights guaranteed by Title VII, 42 U.S.C. § 2000e-2, where "the pattern or practice is of such nature and is intended to deny the full exercise of th[ose] rights."
8. The United States has not pursued any theories of intentional discrimination in this litigation.
9. Instead, the United States has relied on two different disparate impact theories (i.e., theories that required no showing of discriminatory intent). First, it claimed that three different civil service exams for the positions of Custodian and Custodian Engineer (now referred to as Custodian Engineer Level 1 and Custodian Engineer Level 2) had a disparate impact against blacks and Hispanics ( the "testing claims"). Second, it claimed that the defendants' recruiting practices had a disparate impact against blacks, Hispanics, women, and Asians (the "recruiting claim").
10. The United States has not tried to prove that the examinations challenged in the testing claims had any disparate impact against women or Asians.
11. The Answer filed by intervenors' employer, defendant 3

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 4 of 11
New York City Board of Education, among others, denies all allegations of wrongful discrimination.
12. This Court has made no finding that defendants have violated Title VII. Defendants have not violated Title VII.
13. The United States has not alleged that defendants have engaged in intentional employment discrimination. The Court has made no finding that defendants have engaged in intentional employment discrimination. Defendants have not engaged in intentional employment discrimination.
The Settlement Agreement
14. On or about February 11, 1999, the United States and defendants entered into a certain Settlement Agreement, which, subject to Court approval, would resolve all allegations of wrongful discrimination alleged in the Complaint filed by the United States.
15. Defendants continue to deny all allegations that they violated Title VII in the Settlement Agreement.
16. The Settlement Agreement states that the United States and Defendants "agree to the entry of this Settlement Agreement, which resolves all issues that were or could have been raised by the United States in its Complaint."
17. The Settlement Agreement states that it "shall remain
4

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 5 of 11
in force for a period of four years from the last date of execution of the Settlement Agreement." Four years from the last date of execution was February 11, 2003.
18. The Agreement also states that the Court shall "retain jurisdiction over this lawsuit during the term of this Settlement Agreement to resolve all disputes that may arise from or relate to Defendants' compliance with this Settlement Agreement," but that such "jurisdiction shall automatically terminate at the expiration of this Settlement Agreement." Accordingly, the Court's stipulated jurisdiction to resolve disputes over defendants' compliance with the Agreement terminated on February 11, 2003.
19. The United States and defendants have not extended the terms of the Settlement Agreement.
20. The United States no longer agrees to the entry of all the relief provided to the Offerees (discussed below) as a judgment in this case.
Benefits To The Offerees
21. The Settlement Agreement provides that defendants shall award to a class of persons referred to as Offerees positions as permanent Custodians or Custodian Engineers, with retroactive seniority dates. These benefits are set forth in Paragraphs 13 through 16 of the Agreement.
5

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 6 of 11
22. Only black, Hispanic, Asian and female persons were intended to be Offerees.
23. The benefits to the Offerees provided in Paragraphs 13 through 16 of the Agreement were provided in the late winter or early spring of 2000 in exchange for the Offerees' release of liability against the defendants. All but one of the Offerees accepted this bargain and the benefits provided in the Agreement.
24. Some of the Offerees did not take any of the challenged civil service examinations described in paragraph 9.
25. Other Offerees have taken an exam, but are not members of the racial groups against which the United States claims the exams had a disparate impact.
26. As to exam-takers who were members of those racial groups, the Settlement Agreement gave some of them retroactive seniority from a date earlier than the hire date of anyone who actually passed it.
27. Assuming arguendo that there were discriminatory testing practices, defendants would not have selected the testtaking Offerees to be permananent Custodians or Custodian Engineers even if there had been different selection procedures.
28. Assuming arguendo that there were discriminatory recruiting practices, none of the Offerees were the victims of such practices.
6

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 7 of 11
29. The Settlement Agreement does not merely restore the Offerees to positions of seniority they would have held but for alleged discrimination.
Harm to the Brennan Intervenors And The Class
30. The Brennan Intervenors and the class are affected by the provisions of Paragraphs 13 through 16 because the permanent status and retroactive seniority provided to the Offerees may affect their ability to obtain certain job benefits that are competitively awarded.
31. The Agreement does not require defendants to award back pay or money damages to any persons. The burden of the benefits provided in Paragraphs 13 through 16 of the Agreement are primarily borne by the Brennan Intervenors and persons similarly situated.
32. Custodian Engineers compete for assignments to particular schools pursuant to a "rating and transfer plan" set forth in a collective bargaining agreement ("CBA") between the New York City Board of Education (or its successor) and Local 891, International Union of Operating Engineers. Those with more seniority have an advantage in this competition. Under the CBA, seniority is determined by actual length of service in a given position.
33. Each of the Brennan Intervenors and the members of the
7

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 8 of 11
class is a third-party beneficiary of the CBA. The rules and provisions of the CBA are part of the contractual relationship between them and the defendants.
34. In addition to filing this Complaint, the Brennan Intervenors filed written objections to the Agreement.
Class Action Allegations
35. The Brennan Intervenors seek to represent a class of similarly situated individuals. The class consists of those current Custodian Engineers who were not Offerees, and who intend to apply for job benefits in the future that are determined in whole or part by relative seniority.
36. The class is so numerous as to make joinder impracticable. There are more than 800 Custodian Engineers.
37. In fact, when the United States and the defendants proposed the agreement in 1999, the defendants received 350 written objections. Most of the objections were from Custodians and Custodian Engineers employed by defendant NYC Board of Education objecting to the benefits received by the Offerees.
38. Plaintiffs' claims have questions of law and fact in common with the claims of the class members.
39. Plaintiffs' claims are typical of the claims of the class.
8

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 9 of 11
40. Plaintiffs will adequately represent and protect the interests of the class. They have retained counsel familiar with this matter, and with class litigation in general.
41. Defendants have acted (and are acting) on grounds generally applicable to the class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Accordingly, a class should be certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.
Reasons For Not Entering The Settlement Agreement
42. This court should not enter the provisions of the Settlement Agreement as a consent judgment in this case because there is no current agreement between the parties, and one of the parties to the Agreement does not currently consent to the entry of the relief that is set forth therein.
43. Even if there were consent as to the terms that should be entered, this Court should not enter the provisions of the Paragraphs 13 through 16 of the Agreement as a judgment because, inter alia, (1) the United States has not demonstrated a violation of Section 706 of Title VII or any other provision of Title VII, (2) the race-based and sex-based benefits to the Offerees violate the Fourteenth Amendment to the Constitution, 42 U.S.C. § 1981, and Title VII, (3) those benefits are inconsistent with appropriate relief in a Title VII case because they provide
9

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 10 of 11
relief to those who were not victims of any practice violative of Title VII and (assuming arguendo the recipients had been harmed by such a practice) providing relief that does more than make the recipients whole, and (4) those benefits constitute a breach of the Brennan Intervenors' contractual rights (and the contractual rights of other class members) under a Collective Bargaining Agreement between the Department of Education (or its predecessor) and a union representing Custodian Engineers.
WHEREFORE the Brennan Intervenors demand judgment (1) denying entry of the "Settlement Agreement" as a consent judgment; (2) enjoining plaintiff and defendants from discriminating against the class by continuing to implement race-based or sexbased retroactive grants of seniority, permanent positions, or any other impermissibly discriminatory remedy; and (3) awarding the Brennan Intervenors their attorneys' fees and reasonable expenses, pursuant to 42 U.S.C. §§ 1988 and 2000e5(k). Dated: February 22, 2006
10

Case 1:96-cv-00374-FB Document 584-1 Filed 02/22/06 Page 11 of 11
Respectfully submitted,
Michael E. Rosman (MR 6308) Christopher J. Hajec (CJH 4413) CENTER FOR INDIVIDUAL RIGHTS 1233 20th Street, NW, Ste 300 Washington, D.C. 20036 (202) 833-8400 Michael Shumsky (MS 2511) KIRKLAND AND ELLIS LLP 655 Fifteenth St. NW Washington, DC 20005-5793 George W.C. McCarter (GM 6978) McCARTER & HIGGINS 39 Avenue of the Common, Suite 200 Shrewsbury, NJ 07702 (732) 544-5050 Attorneys for the Brennan Intervenors
11

 
 Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 1 of 91

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------X UNITED STATES OF AMERICA,

Plaintiff,

-against-

MEMORANDUM & ORDER

NEW YORK CITY BOARD OF EDUCATION; CITY OF NEW YORK; LILLIAM BARRIOS-PAOLI, PERSONNEL DIRECTOR, NEW YORK CITY DEPARTMENT OF PERSONNEL (in her official capacity); NEW YORK CITY DEPARTMENT OF PERSONNEL,
Defendants,

ACTION I No. 96-CV-0374 (FB) (RML)

and

JOHN BRENNAN; JAMES G. AHEARN; DENNIS MORTENSON and SCOTT SPRING,

Intervenors,

and

JANET CALDERO, CELIA I. CALDERON, MARTHA CHELLEMI, ANDREW CLEMENT, KRISTEN D'ALESSIO, LAURA DANIELE, CHARMAINE DIDONATO, DAWN L. ELLIS, MARCIA P. JARRETT, MARY KACHADOURIAN, KATHLEEN LUEBKERT, ADELE A. MCGREAL, MARIANNE MAOUSAKIS, SANDRA D. MORTON, MAUREEN QUINN, HARRY SANTANA, CARL D. SMITH, KIM TATUM, FRANK VALDEZ and IRENE WOLKIEWICZ,

Intervenors,

and

PEDRO ARROYO, JOSE CASADO, CELESTINO FERNANDEZ, KEVIN LAFAYE, STEVEN LOPEZ, ANIBAL MALDONADO, JAMES MARTINEZ, WILBERT MCGRAW, SILVIA ORTEGA DE GREEN

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 2 of 91

and NICOLAS PANTELIDES,

Intervenors. -----------------------------------------------------------------------X -----------------------------------------------------------------------X JOHN BRENNAN; JAMES AHEARN; ERNIE TRICOMI; SCOTT SPRING; DENNIS MORTENSEN; JOHN MITCHELL and ERIC SCHAUER,

Plaintiff,

-against-
JOHN ASHCROFT; RALPH BOYD; UNITED STATES DEPARTMENT OF JUSTICE; NEW YORK CITY BOARD OF EDUCATION; CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES and WILLIAM J. DIAMOND,

ACTION II No. 02-CV-0256 (FB) (RML)

Defendants -----------------------------------------------------------------------X

Appearances: For the Plain tiff CHARLES E. LEGGOTT, ESQ. United States Department of Justice Employment Litigation Section 950 Pennsylvania Ave., N.W. Washington, DC 20530

For the Intervenors: For Intervenor Brennan, et al.: MICHAEL E. ROSMAN, ESQ. Center for Individual Rights 1233 20th Street, N.W., Suite 300 Washington, DC 20036

For the Defendants: LAWRENCE J. PROFETA, ESQ. The City of New York Law Department 100 Church St. New York, NY 10007

For Intervenor Arroyo, et al.: MATTHEW B. CALANGELO, ESQ. NAACP Legal Defense Fund & Educational Fund, Inc. 99 Hudson St., 16th Floor New York, NY 10013

For Intervenor Caldera, et al.: EMILY J. MARTIN, ESQ. American Civil Liberties Union Women's Rights Project 125 Broad St., 18th Floor New York, NY 10004

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 3 of 91
BLOCK, Senior District Judge:
TABLE OF CONTENTS
INTRODUCTION ................................................................................................................. 4
BACKGROUND .................................................................................................................... 8
A. The Substance of the United States' Action ......................................................... 8 1. The Testing Claims ...................................................................................... 9 a. Hiring Practices ................................................................................ 9 b. Custodian Exam No. 5040 ............................................................ 10 c. Custodian Engineer Exam Nos. 8206/8609 ................................. 10 d. Custodian Exam No. 1074 .......................................................... 11 2. The Recruiting Claim ................................................................................ 12
B. The Settlement Agreement .................................................................................. 15 C. The Impact of the Settlement Agreement on Seniority ..................................... 17
1. School Building Transfers ........................................................................ 18 2. Temporary Care Assignments ................................................................. 20 3. Layoffs ........................................................................................................ 22 D. The Fairness Hearing and Magistrate Judge Levy's Memorandum and Order .................................. 23 E. The Second Circuit's Remand ............................................................................. 27 F. The Post-Remand Interventions .......................................................................... 30 1. The Brennan Interventions ....................................................................... 30 2. The Caldera and Arroyo Interventions ................................................... 31 G. Post-Remand Challenges By The Brennan Intervenors ................................... 31 1. Challenges to the Reputed Protected Class ............................................ 31 2. Challenges to the Testing Claims ............................................................. 32
a. Proof of Discrimination ................................................................ 32 b. Non-Victims of Discrimination .................................................... 34 3. Challenges to the Recruiting Claim ......................................................... 36 a. Proof of Discrimination ................................................................ 36 b. Non-Victims of Discrimination .................................................... 38 H. Issues Briefed ....................................................................................................... 39
DISCUSSION ...................................................................................................................... 39
Preliminary Matters
A. Brennan Intervenors' Status ................................................................................ 39 B. Effect of the Summary Judgment Motions on Action II ................................... 40 C. Protected Class ..................................................................................................... 41
3

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 4 of 91
Title VII
A. Statistical Basis For the Affirmative-Action Plan .............................................. 42 1. Testing Claims ........................................................................................... 47 2. Recruiting Claim ....................................................................................... 50
B. Relief ...................................................................................................................... 52 1. Transfers and TCAs .................................................................................. 58 2. Layoffs ........................................................................................................ 59
Fourteenth Amendment
A. Race-Based Classifications .................................................................................. 65 1. Compelling Interest For Race-Based Relief ............................................ 65 2. Narrowly Tailored .................................................................................... 72 a. Transfers and TCAs ....................................................................... 73 b. Layoffs ............................................................................................ 75
B. Sex-Based Classifications ..................................................................................... 78 1. Important Governmental Interest ............................................................ 80 2. Substantially Related ................................................................................ 81
Remaining Matters
A. Propriety of Entry of a Consent Judgment ........................................................ 82 B. Class Certification ................................................................................................ 84
RECAPITULATION ........................................................................................................... 88
A. Testing Claims ..................................................................................................... 88 B. Recruiting Claim .................................................................................................. 88 C. Reflections ............................................................................................................. 89
CONCLUSIONS ................................................................................................................. 90
INTRODUCTION
In 1993, the New York City Board of Education (the "Board") conducted a
demographic survey of its Custodians and Custodian Engineers (collectively, "custodial
employees"V it disclosed that 99% of its 831 permanent custodial employees were men,
1Although Custodians and Custodian Engineers perform many of the same duties, Custodian Engineers are required to have qualifications above and beyond what is required of a Custodian, the most significant of which is a stationary engineer's
4

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 5 of 91
and that 92% were white.2 A few years later, in 1996, the United States, in Action I, sued
the Board pursuant to section 707(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-6(a)/ claiming that three entry-level examinations that the Board had
administered, as well as the recruiting practices it had used to publicize those exams,
violated Title VII. The lawsuit resulted in a Settlement Agreement (the "Agreement'')
that awarded employment benefits to a group of 59 individuals (the "beneficiaries")
composed of black, Hispanic and Asian men and women, and non-minority females.
See Jan. 10, 2005 Decl. of James Lonergan, Ex. I (Agreement).
This spawned interventions in that action by two groups supportive of the
settlement, and one group opposed. Those supportive were 31 of the 59 beneficiaries
(the "Caldera" and "Arroyo" intervenors). Those opposed were four white male
custodial employees (the "Brennan" intervenors), who railed against the adverse effect
the Agreement had on their seniority rights in regard to (1) school building transfers, (2)
temporary care assignments, and (3) layoffs; rather than rely on their intervention
rights, they also, together with two other white male custodial employees, brought a
license. See Dec. 23, 2004 Decl. of Emily Martin, Ex. 54 (Apr. 8, 2002 Decl. of James Lonergan) at 10. The positions of Custodian and Custodian Engineer are now referred to as "Custodian Engineer Levell" and "Custodian Engineer Level2," respectively. The Court, however, will maintain the old terminology.
2Caldero 56.1 Statement of Facts ,-r 4; Dec. 23, 2004 Decl. of Emily Martin, Ex. 3 (Def.' s Response to Plaintiff's First Set of Requests for Admission) at 9; id., Ex. 2 (Ethnic Survey - '93).
3Section 707 authorizes the United States Attorney General to bring a civil action whenever he or she "has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of th[os]e rights ...."
5

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 6 of 91
separate action (Action II).4 In both actions, all the white males assert that their
seniority rights were violated in those three aspects under both Title VII and the
Fourteenth Amendment, and seek injunctive reliet_S The two additional white males in
Action II also seek monetary damages because they allegedly were denied school
building transfers that, under the Agreement, were instead given to two unidentified
beneficiaries. 6
After extensive pre-trial proceedings and a protracted procedural history,
the issue of the validity of the challenged parts of the Agreement is now presented to
the Court by the intervenors' respective motions for partial summary judgment in
Action I? Also before the Court are a motion in Action I by the Board to enter the
4By order dated November 24, 2004, the Court consolidated both actions pursuant to Fed. R. Civ. P. 42(a).
5Although the Board is a governmental actor subject to the Fourteenth Amendment, it is not an arm of the state entitled to Eleventh Amendment Immunity. See Fay v. South Colonie Sch. Dist., 802 F.2d 21, 27 (2d Cir. 1986) ("State action for purposes of the Fourteenth Amendment is not equal to being the state for purposes of the Eleventh Amendment."), overruled in part on other grounds by Taylor v. Vermont Dept. of Educ., 313 F.3d 768 (2nd Cir. 2002).
6The named parties in Action II were the four Brennan intervenors- John Brennan ("Brennan"), James Ahearn ("Ahearn"), Dennis Mortenson ("Mortenson") and Scott Spring ("Spring")) and three others (Ernie Tricomi, John Mitchell and Eric Schauer). Mitchell and Schauer are the two seeking monetary damages; Tricomi has withdrawn from the litigation. See Not. of Voluntary Dismissal by Pl. Ernie Tricomi (Jan. 16, 2003).
7More specifically, the Caldera and Arroyo intervenors seek a declaratory judgment that the challenged provisions of the Agreement comport with Title VII and the Fourteenth Amendment, see Caldera Intervenors' Mot. for Partial Summ. J. at 2; Arroyo Intervenors' Mot. for Partial Summ. J. at 1-2; conversely, the Brennan intervenors seek a declaratory judgment that the challenged provisions violate Title VII and the Fourteenth Amendment. See Brennan Intervenors' Mot. for Partial Summ. J. at 2.
6

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Agreement as a consent judgment,8 and motions by the white males in both actions for
class-action certification.9
The Court declines to enter the Agreement as a consent judgment. The
Court declares, however, that the Agreement is valid under Title VII, except to the
extent that it grants preferential seniority as to layoffs to non-victims of race, national
origin and gender discrimination.10 The Court further declares that the Agreement is
also valid under the Fourteenth Amendment, except to the extent that it (1) grants
preferential seniority as to layoffs to non-victims of discrimination, and (2) grants relief
to racial or ethnic minorities based on the recruiting claim. The Court also declares that
8The United States initially joined in the Board's motion; however, it subsequently, in effect, withdrew its support. See United States's Mem. of Points and Authorities in Response to this Court's Order of July 20, 2004, at 9 ("[T]o the extent that the Brennan Intervenors have standing to challenge certain provisions of the Agreement, those provisions cannot be entered as a consent judgment over their objection."). Although the Caldera and Arroyo intervenors have not formally joined in the motion, they support it.
9Since the inception of the litigation, the parties have submitted 42 legal memoranda, 36 declarations and 246 letters from counsel; as to the pending summary judgment motions, the submissions include more than 500 pages of legal memoranda and letter briefs, and a seven-foot mountain of supporting documentation that nearly fills 7 banker's boxes. Notwithstanding the parties' contributions, the Court has expended a tremendous amount of its own judicial resources developing the relevant facts and staking out the correct conceptual analysis.
10The Court uses the term "non-victims" to refer to beneficiaries who were not impacted by any of the discriminatory practices, and beneficiaries who, although victims of discrimination, received relief that was not make-whole in nature (i.e., the relief went beyond that necessary to put them in the position that they would have been in but for discrimination). In appropriate circumstances, "the voluntary action available to employers ... seeking to eradicate race discrimination may include reasonable raceconscious relief that benefits individuals who were not the actual victims of discrimination." Local No. 93, Int'l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501, 516 (1986) (citing United Steel Workers ofAmerica v. Weber, 443 U.S. 193 (1979)).
7

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one of the 59 beneficiaries is not a member of protected class. Finally, the Court grants class-action status to those whose layoff-protection rights were displaced by nonvictims of discrimination.11
There are issues of fact which must now be resolved as to (1) whether there was sufficient evidence of discrimination in respect to one of the challenged exams; (2) the number of non-female blacks, Hispanics and Asians who received relief under the recruiting claim; (3) the number of blacks and Hispanics receiving preferential seniority for purposes of layoffs under the testing claims who were not actual victims of discrimination; and (4) the identities of the individual beneficiaries who received the transfers sought by the two additional white males in Action II.
BACKGROUND A. The Substance of the United States' Action
The United States initiated Action I on January 30, 1996. Although it alleged both pattern and practice disparate-treatment claims - requiring proof of intentional discrimination- and disparate-impact claims, it pursued only the disparateimpact claims. The United States claimed that the Board's hiring practices for custodial employees (the "custodial positions") violated Title VII in two respects: (1) that three
11There are three other pending motions, which the Court summarily denies: (1) the Board's motion seeking judicial enforcement of Paragraph 9 of the Agreement, which provides that if any party challenged a provision of the Agreement, the United States and the Board "shall take all reasonable steps to defend fully the lawfulness of any such provision"; (2) the United States' motion to strike a declaration submitted by the Board in support of its motion for enforcement of Paragraph 9; and (3) a motion by the Brennan intervenors to strike certain arguments made by the parties in their motion papers. In light of the Court's decision, these three motions are of no substantive significance.
8

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written tests, administered as a prerequisite for obtaining a custodial position, had a disparate impact on blacks and Hispanics (the "testing claims"); (2) that the Board's recruiting practices for those tests had a disparate impact on blacks, Hispanics, Asians and females (the "recruiting claim"). The relevant tests were three entry-level exams: Custodian Exam No. 5040, Custodian Engineer Exam Nos. 8206/8609/2 and Custodian Exam No. 1074. 1. The Testing Claims a. Hiring Practices
The Board periodically administered written, multiple-choice civil-service examinations to identify eligible candidates for permanent custodial positions. Those who passed the exams and met the other eligibility requirements- which included, inter alia, English-language proficiency - were ranked and placed on eligibility lists. When a position became available, the top three candidates on the relevant list were interviewed, and one was appointed. Unsuccessful interviewees could be interviewed two more times; if they were not successful, they were removed from the list.
The eligibility list created from Exam No. 5040 governed the hiring of Custodians between the spring of 1987 and the fall of 1990; 154 of 678 placed on that list were hired. The eligibility list created from Exam No. 1074 governed the hiring of Custodians from early 1997 until early 2000; 244 of 524 were hired. The eligibility list created from Exam Nos. 8206/8609 governed the hiring of Custodian Engineers
12Custodian Engineer Exam No. 8609, which was a promotional exam given to Custodians who wanted to be considered for Custodian Engineer positions, was identical to Custodian Engineer Exam No. 8206, which was given to members of the general public who were seeking Custodian Engineer positions.
9

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between the spring of 1991 and early 1994; 46 of 335 were hired. If there were no eligible candidates when a custodial position became available, the Board solicited resumes for "provisional"- as opposed to "permanent''- positions. The most qualified applicants were selected for interviews, and the most qualified interviewee was hired. b. Custodian Exam No. 5040
Custodian Exam No. 5040 was administered in December 1985. The Department of Personnel then reviewed the "experience papers" of each successful exam-taker to determine if the applicant had the required amount of experience and/ or education as advertised in the notice publicizing the exam; a negative determination could be administratively appealed. Applicants who passed the exam and had the requisite experience were given a "practical oral" exam, which was graded on a pass/fail basis. Those who passed were deemed eligible to be hired as Custodians. c. Custodian Engineer Exam Nos. 8206/8609
Custodian Engineer Exam Nos. 8206/8609 were administered in May 1989. The Department of Personnel then reviewed the "experience papers" of each successful exam-taker to determine if the applicant had (1) the required amount of experience and/ or education as advertised in the notice publicizing the exam, and (2) a license to operate a high pressure boiler; a negative finding in regard to experience papers could be administratively appealed. Unlike Custodian Exam No. 5040, there was no "practical oral" exam; rather, those who met the experience prerequisites were deemed eligible to be hired as Custodian Engineers.
10

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 11 of 91 d. Custodian Exam No. 1074
Custodian Exam No. 1074 was administered in January 1993. Applicants who passed the exam were then given a further, practical written exam, which was graded on a pass/fail basis. The Department of Personnel then reviewed the "experience papers" of each applicant who had passed both the initial multiple-choice exam and the practical exam to determine if the applicant had the required amount of experience and/ or education as advertised in the notice publicizing the exam; a negative finding in regard to experience papers could be administratively appealed. Those who met the minimum prerequisites were deemed eligible to be hired as Custodians.
In support of its testing claims, the United States relied on a statistical analysis of pass rates compiled by Bernard R. Siskin, Ph.D. ("Dr. Siskin") and Dr. Leonard Cupingood, Ph.D. ("Dr. Cupingood"); their results were as follows:
11

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 12 of 91

Passing white applicants
Passing black applicants
Passing Hispanic applicants
Pass rate for black applicants divided by pass rate for white applicants
Pass rate for Hispanic applicants divided by pass rate for white applicants
Disparity between the pass rate for white and black applicants (#of Standard Deviations)14
Disparity between the pass rate for white and Hispanic applicants (#of Standard Deviations)

No. 5040 No. 820613 No.1074

58.1%

85.1%

61.7%

14.1%

50.0%

14.4%

27.7%

71.1%

30.8%

24.3%

58.8%

23.3%

47.7%

83.5%

49.9%

13.85

5.14

12.51

8.09

2.15

8.06

2. The Recruiting Claim The recruiting claim centered on the practices the Board used to recruit
individuals for the exams; the United States contended that those practices primarily consisted of limited advertising and word-of-mouth referrals having a disparate impact

13The minority applicant pool for Exam No. 8609 was "too small to conduct statistical analysis." Jan. 10, 2005 Decl. of Charles E. Leggott, Ex. 26 (Dr. Bernard R. Siskin & Dr. Leonard A. Cupingood, Adverse Impact on Minorities of Written Examinations for Custodian and Custodian Engineer Positions in New York City (Nov. 1997)) at 2.
14"The standard deviation for a particular set of data provides a measure of how much the particular results of that data differs from the expected results." United States v. New York City Bd. ofEduc., 85 F. Supp. 2d 130, 142 n.17 (E.D.N.Y. 2000), vacated, 260 F.3d 123 (2d Cir. 2001).
12

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 13 of 91 on women and minorities.
In support of this claim, the United States relied on the expertise of Orley Ashenfelter, Ph.D. ("Dr. Ashenfelter"), who deduced that the numbers of black, Hispanic, Asian and female applicants for each exam were statistically less than those who would be expected to take the exam. Dr. Ashenfelter recognized that the relevant comparator group should be composed of those members of the labor pool who possessed the requisite qualifications to take the exam; however, because such data were nonexistent, Dr. Ashenfelter used prior work experience as a proxy for those qualifications: First, he identified the actual applicants' most common prior occupations, regardless of their race or gender, by reviewing their experience papers. He next used data prepared from the 1980 and 1990 decennial censuses by the Bureau of the Census ("Census Data") to calculate the fraction of those engaged in those common occupations in New York City who were members of each of the protected classes; although the Census Data did not include data on previous work experience, it did include data on occupations (as of the previous year), race, ethnicity, gender and place of work. Finally, he assumed that the expected fraction of the protected-class applicants was the average of their representation in these occupations weighted by the fraction of applicants who worked in these jobs. His results were as follows:
13

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 14 of 91

Exam No. 5040

Estimated Representation in Labor Pool

Expected # of Applicants

Actual# of Applicants

Z-Statistic
(# of Standard Deviations)15

Blacks

24.9%

439

341

5.41

Hispanics

24.9%

439

218

12.16

Asians

3.2%

56

15

5.61

Females

15.9%

289

200

12.81

Exam No. 8206

Estimated Representation in Labor Pool

Expected # of Applicants

Actual# of Applicants

Z-Statistic (# of Standard
Deviations)

Blacks

22.1%

91

41

4.94

Hispanics

17.6%

73

42

3.95

Asians

4.9%

20

8

2.76

Females

9.4%

40

4

6.01

15The Z-statistic is a dimensionless quantity that represents the number of standard deviations from which the actual score deviates from the mean score; it is derived by subtracting the mean score from the actual score and dividing the difference by the standard deviation. A Z-statistic greater than or equal to 1.96 means that there is only a 5% probability that the deviations were due to chance alone; statisticians refer to Z-statistics of 1.96 or more as statistically significant. See Decl. of Dr. Ashenfelter (Apr. 1, 1999) ,-r 19.
14

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 15 of 91

Exam No. 1074

Estimated Representation in Labor Pool

Expected # of Applicants

Actual# of Applicants

Blacks

21.4%

300

215

Hispanics

23.1%

324

203

Asians

6.0%

84

25

Females

14.7%

209

71

Z-Statistic (# of Standard
Deviations)
5.54
7.66
6.65
10.34

Although Dr. Ashenfelder found a statistically significant disparity between the expected and actual number of applicants for each group and for each exam, he offered no opinion as to any cause for the disparities. B. The Settlement Agreement
Magistrate Judge Levy presided over pretrial proceedings, which commenced on October 3, 1997. As recounted by him, after "years of highly contentious discovery, entailing the retention of numerous experts by both sides, the production of thousands of pages of documents, the taking of approximately thirty depositions, many applications to the court regarding discovery disputes, and over three months of arms-length settlement negotiations[,]" United States v. New York City Bd. of Educ., 85 F. Supp. 2d 130, 135 (E.D.N.Y. 2000), vacated, 260 F.3d 123 (2d Cir. 2001), the United States and the Board executed the Agreement on February 11, 1999, and jointly moved to enter it as a consent judgment.
The Agreement contains many provisions that are not in dispute, such as requiring the Board to implement a comprehensive recruitment plan designed to increase the number of black, Hispanic, Asian and female applicants for custodial

15

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 16 of 91
positions, see Agreement ,-r1s, and requiring the Board to consult with an expert designated by the United States before using written examinations to hire new custodial employees. See id. ,-r2s.
At issue are the remedies granted to the beneficiaries in Paragraphs 13-16. As of the date of the Agreement, a group of 54 individuals had been identified as blacks, Hispanics, Asians or white females eligible for relief, and were listed in Appendix A of the Agreement; they all had previously been hired as provisional employees and although 43 still were, 11 had, by that time, acquired permanent status.16 The Agreement also offered relief to blacks, Hispanics, Asians and white females who might be hired as provisional custodial employees between the date of the Agreement and the date of anticipated court approval, provided they had taken one or more of the challenged exams; these individuals, together with those set forth in Appendix A, were defined in the Agreement as "Offerees." See Agreement ,-r 4.
Under Paragraph 13, all of the Offerees who were provisional employees would be granted permanent positions upon court approval of the Agreement.
Under Paragraphs 14-16, the Offerees were granted retroactive seniority. As for those listed in Appendix A, if the Offeree did not take any of the challenged exams, the retroactive seniority date was the date that he or she was provisionally hired; if the Offeree did take one or more of the challenged exams, the retroactive seniority date was the earlier of (1) the date he or she was provisionally hired, or (2) a "median
16Appendix A sets forth the race and ethnicity of each of the 54- whether white, black, Hispanic or Asian- his or her gender, job title and seniority date.
16

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 17 of 91
date" for the exam.17 For those who would be hired as Custodians after the Agreement, and hence were not listed in the Appendix, their retroactive seniority date would be the earliest provisional hire date for a Custodian listed in the Appendix (February 28, 1992); for those who would be hired as Custodian Engineers, their retroactivity seniority would date to the earliest provisional hire date in the Appendix for a Custodian Engineer (April 13, 1990). Furthermore, the Agreement provided that the award of retroactive seniority would "apply for all purposes for which seniority is applied except
any applicable probation requirement." Agreement ,-r 14.
C. The Impact of the Settlement Agreement on Seniority A custodial employee's seniority rights begin to accrue on the date of the
employee's appointment to a permanent position. Of the four Brennan intervenors, Mortensen passed Exam No. 5040 and was appointed as a permanent Custodian on October 15, 1990. Brennan passed Exam Nos. 5040, 8206 and 1074, and was appointed as a permanent Custodian on or about March 24, 1997. Ahearn passed Exam Nos. 8206 and 1074, and was also appointed as a permanent Custodian on or about March 24, 1997. Spring passed Exam No. 1074 and was appointed as a permanent Custodian on June 23, 1997. Though Mortensen, Brennan and Ahearn were later appointed permanent Custodian Engineers, they retained the seniority rights that they had accrued as permanent Custodians.
17The median dates were January 23, 1989, for Custodian Exam No. 5040; October 8, 1992, for Custodian Engineer Exam No. 8206; February 14, 1992, for Custodian Engineer Exam No. 8609; and October 27, 1997, for Custodian Exam No. 1074. The median date is defined as the midpoint of the hiring period for the associated exam.
17

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 18 of 91
By contrast, the Offerees' seniorities, as reflected in Appendix A, ranged from January 23, 1989, to February 12, 1996 for Custodians, and from April13, 1990, to June 28, 1996 for Custodian Engineers, even though at the time the Agreement was executed in early 1999, 43 Offerees were still provisional employees not accruing any seniority.18 By virtue of the Agreement, all Offerees have greater seniority than Brennan, Ahearn and Spring, and 16 have greater seniority than Mortensen; consequently, as now explained, the Brennan intervenors' rights to school building transfers, temporary care assignments, and layoff protection have been adversely impacted. 1. School Building Transfers
The Board periodically affords permanent custodial employees the opportunity to bid for a transfer to an open school building by distributing to them a list of the schools that have vacancies; in the two years after the Board implemented the Agreement, it issued six such lists. A custodial employee's salary depends on the school building to which he or she is assigned; therefore, a transfer may equate to a salary increase.19
18Appendix A does not reflect the date that the 11 Offerees that had already become permanent employees by the time the Agreement was executed began accruing seniority.
19For each school, the Board assigns a "management fee" that reflects the appropriate cost for custodial services in that particular school, including the salary of the custodial employee. From this management fee, the custodial employee assigned to the building may earn up to the "maximum permissible retainage" for the employee's building. If, however, the custodial employee goes over budget, the employee's salary is reduced.
18

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 19 of 91
The collective bargaining agreement ("CBA") between the Board and the custodial employees' union provides that transfers are governed by a combination of seniority and performance ratings. With limited exceptions, all permanent custodial employees are eligible to bid for a transfer to a different school upon completion of a one-year probationary period. Custodians and Custodian Engineers are separately divided into seniority bands.20 The custodial employee in the highest seniority band, provided that he or she has the requisite licensure for that particular school, is awarded the transfer. However, when there is more than one custodial employee in that seniority band, the one with the higher performance rating - defined as the average of the principal's ratings over the preceding two years - will receive the transfer unless the rating differential is equal to or less than a quarter point; in that case, the one with the most seniority will be awarded the transfer unless the school's principal vetoes the candidate or the candidate has received a performance rating of less than three.
The CBA provides that "[s]eniority of all candidates shall be determined solely by time served [as a permanent employee] together with time served in the predecessor title for that level [as a permanent employee,]" CBA at 23-24; for example, an employee who served five years as a Custodian and ten years as a Custodian Engineer Levell, the new title for Custodians, would have fifteen years of seniority.
20There are three seniority bands for Custodians (one to five years, five to ten years, and ten or more years); there are four seniority bands for Custodian Engineers (one to five years, five to ten years, ten to fifteen years, and fifteen or more years).
19

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 20 of 91
2. Temporary Care Assignments The Board has a practice for filling temporary vacancies caused by illness,
vacation or leave through Temporary Care Assignments ("TCA") to custodial employees. Under the TCA program, a custodial employee is assigned to an additional school to attend to such vacancies; the employee then divides his or her time between the two schools (without having to work additional hours) and collects a portion of the management fee for the second school. The process for awarding TCAs is not set forth in the CBA.
To be eligible for a TCA, a custodial employee must have attained permanent-employee status and completed the one-year probationary period. Each borough maintains three lists of those eligible for TCAs: one for Custodian Engineers, one for Custodians and one for Custodians with fifteen or more years of seniority. Eligible custodial employees are placed on the applicable TCA list for the borough in which they work in the order that they completed their probationary periods; therefore, placement on a TCA list typically correlates with the date an employee is appointed as a custodial employee, given that the date of completion of the probationary period occurs one year after the employee's start date.21
When a temporary vacancy arises, the Board offers the TCA to the custodial employee who is at the top of the applicable list. After the completion of the
21Custodian Engineers who previously served as Custodians and completed a one-year probationary period under that title do not have to serve a second probationary period; thus, those individuals are placed on the applicable TCA list immediately upon appointment as a permanent Custodian Engineer.
20

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 21 of 91
TCA, the employee is placed on the bottom of the list. On average, an opportunity for a
TCA arises once every two years and, on average, each TCA lasts two months.
The award of permanent-employee status had a nominal effect on the
Brennan intervenors since it increased the number of custodial employees on the TCA
lists, thereby reducing the frequency with which a custodial employee obtains a TCA.22
Additionally, it affected the relative placement on the list of Mortensen, who was
appointed as a permanent Custodian Engineer after the beneficiaries completed their
one-year probationary periods.23 See Brennan Intervenors' Reply Mem. of Points &
Authorities in Further Support of their Motion for Partial Summary Judgment at 31 n.ll
("The Brennan Intervenors do not dispute that the Offerees should not lose their jobs.");
October 6, 2005 Oral Argument Tr. at 13 ("MR. ROSMAN: It does come down to
221t is unclear where on the TCA list the beneficiaries were placed. According to James Lonergan, formerly the Board's Senior Director of Building Services, the beneficiaries who were awarded permanent-employee status were placed at the bottom of the applicable TCA list only after they completed the one-year probationary period; the beneficiaries who were already permanent employees as of the date that the Agreement was implemented remained on the applicable TCA list according to date that they completed their probationary periods (i.e., their relative positions on the TCA lists were not moved up to reflect any retroactive seniority received under the Agreement). However, according to Salvatore Calderone, the Board's Deputy Director for the Office of Building Services, the beneficiaries who were awarded permanentemployee status were placed on the top of the applicable list when they became eligible, and the beneficiaries who were already permanent employees were placed on the top of the list once the Agreement was implemented.
23The award did not affect Ahearn or Brennan, even though they, too, were appointed as permanent Custodian Engineers after the beneficiaries were awarded permanent-employee status. Ahearn and Brennan were appointed as permanent Custodian Engineers on October 18, 2000, and because they had previously completed one-year probationary periods as Custodians, were immediately placed on the applicable TCA list- before the beneficiaries completed their one-year probationary periods.
21

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 22 of 91
seniority, yes. The retroactive seniority agreements were not the only provisions that affected our seniority, our relative seniority."). 3. Layoffs
The New York Civil Service Law provides that layoffs of custodial employees are made "in the inverse order of original appointment on a permanent basis," N.Y. Civ. Serv. L. § 80(1); a Custodian with more seniority has precedence over, and would be laid off later than, a Custodian Engineer with less seniority. Furthermore, the date of original appointment is the date that an individual is appointed to a permanent position provided that he or she provides "continuous service" in that position, see id. § 80(2) (defining "original appointment'' as "the date of [the employee's] first appointment on a permanent basis ... followed by continuous service ... on a permanent basis"); one who serves as a provisional employee nonetheless provides "continuous service" when he or she served in a permanent position immediately before and after. See id. ("[A] period of employment on a . . provisional basis ... immediately preceded and followed by permanent service ... shall not constitute an interruption of continuous service[.]"). Accordingly, for those Custodian Engineers who previously served as Custodians, their dates of original appointment are the dates that they were appointed as Custodians - not the later appointments as Custodian Engineers. See Arroyo Ex. 83 (Gladstein Dep. Tr.) at 31-32.
The New York Civil Service Law speaks in terms of "permanent appointment," not "seniority." The parties, however, citing the language in the Agreement providing that the award of retroactive seniority applies for all purposes for
22

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 23 of 91
which seniority plays a role, all agree that the award of retroactive seniority constructively altered the date of original appointment of the beneficiaries.24 D. The Fairness Hearing and Magistrate Judge Levy's Memorandum and Order
Paragraph 34 of the Agreement required the parties to request the Court to conduct a "fairness hearing" to consider all objections to the Agreement and "resolv[e] all disputes regarding the proposed conversion of Offerees from provisional to permanent status and granting of retroactive seniority, so that the Settlement Agreement may be entered by the Court."25 On March 4, 1999, the Court authorized Magistrate Judge Levy to conduct the hearing, see United States v. New York Bd. of Educ., CV-96-374 (E.D.N.Y. Mar. 4, 1999), which took place on May 27, 1999. On June 2, 1999, the parties, pursuant to 28 U.S.C. § 636(c), conferred jurisdiction on the magistrate judge to render a final judgment.
Prior to the hearing, the parties published notice of the Agreement in various newspapers and provided actual notice of the Agreement to more than 2,000 individuals, advising that any objections had to be filed by April 27, 1999. The notices resulted in objections by over 300 individuals, as well as a motion to intervene pursuant
24ln a Memorandum and Order dated June 23, 2006, the Court afforded the parties the opportunity to submit letter memoranda regarding the interplay between the New York Civil Service Law and the Agreement as it concerned layoffs. Each party responded on July 17, 2006.
25A fairness hearing provides interested parties an opportunity to object; if after notice and opportunity to object, a consent judgment is issued, these interested parties cannot collaterally attack the settlement agreement. See 42 U.S.C. § 2000e-2(n) (individuals may not challenge any employment practice implementing a consent judgment provided notice and opportunity to object are given).
23

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 24 of 91
to Fed. R. Civ. P. 24(a) by the Brennan intervenors. In a comprehensive decision rendered on February 9, 2000, Magistrate
Judge Levy approved the Agreement and entered it as a consent judgment. See New York City Bd. of Educ., 85 F. Supp. 2d at 133. Recognizing that "voluntary settlements in Title VII cases enjoy a presumption of validity," especially "when the consensual agreement at issue has been reached by a federal government agency charged with protecting the public interest and seeing that anti-discrimination laws are enforced and violations remedied[,]" id. at 137, the magistrate judge identified the standard of review as "whether the proposed agreement is lawful, fair, reasonable, adequate, and consistent with the public interest," id. at 136 (citing EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884 (7th Cir. 1985), and Vulcan Soc'y v. City of New York, 96 F.R.D. 626 (S.D.N.Y. 1983)), adding that where, as here, a settlement agreement implements race-conscious remedies, "the court reviewing the settlement must determine whether (1) there is an existing condition that serves as a proper basis for the creation of race-conscious remedies; and (2) the specific remedies of the compromise agreement are reasonable and lawful." Id. (citing Kirkland v. New York State Dep't of Carr. Servs., 71 F.2d 111 (2d Cir. 1983)).
Statistically significant disparities led Magistrate Judge Levy to conclude that the United States had established a prima facie case of disparate-impact discrimination for each of the three exams, as well as for the recruitment for the exams. With respect to the testing claims, Magistrate Judge Levy set forth, for each exam, the pass rates of whites, blacks and Hispanics in the relevant labor market, and then found
24

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 25 of 91
the differences in the pass rates for blacks and Hispanics, as compared to whites, to be
statistically significant. With respect to the recruiting claim, Magistrate Judge Levy
relied upon Dr. Ashenfelter's "undisputed" and "unrebut[ted]" report. See id. at 143-45.
Next, Magistrate Judge Levy determined that the Agreement was fair and
reasonable since it averted "a complex, expensive, and lengthy trial[,]" id. at 146, and
because the retroactive-seniority provisions were "entirely consistent with and clearly
m[et] Title VII's objective of eradicating discrimination." Id. at 147. In that latter regard,
he reasoned:
[T]he relief is narrowly tailored, as only persons who are qualified for the positions of Custodian and Custodian Engineer will receive remedial relief, and no current permanent employee will be displaced. Indeed, the number of Offerees who will receive permanent positions is quite small in comparison with the number of individuals who may have been afforded relief had this matter proceeded to final adjudication. Plus, the Agreement does not establish any permanent numerical requirements or quotas; once the Offerees are converted to permanent status with retroactive seniority, the defendants will be required to recruit minority and female candidates actively and to hire on a non-discriminatory basis, but will not be required to achieve or maintain any specific percentage of minorities or women in the relevant workforce.
Id. at 147.
Magistrate Judge Levy rejected the objections by "current permanent
employees who allege[d] that retroactive seniority for the Offerees may adversely affect
their relative seniority rights ...." Id. at 147. In doing so, he relied on Dr. Siskin's
"unchallenged" opinion that the granting of retroactive seniority would have, at worst,
a "limited" economic impact on custodial employees; the magistrate judge concluded,
25

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 26 of 91
therefore, that "the impact of this relief on the incumbent [custodial employees] w[ould] be minimal and dispersed, and [thus,] the remedy [was] unquestionably legal and reasonable." Id. at 149-51.
Additionally, Magistrate Judge Levy denied the proposed Brennan intervenors' intervention motion, rejecting their argument that they had an absolute right to intervene because they were adversely affected by the Agreement. The crux of his reasoning was his belief that the Offerees were basically being restored to the employment rights they would have enjoyed if not for the Board's unlawful discriminatory practices. See id. at 155.
Following Magistrate Judge Levy's approval, the Board notified 63 Offerees that they were entitled to relief under the Agreement.26 Each Offeree had the option to consent to the Agreement or to pursue claims against the Board by withholding consent. See Agreement ,-r40. Fifty-nine of the Offerees consented, one declined, and three resigned. See Dec. 23, 2004 Decl. of Emily Martin, Ex. 54 (Apr. 8, 2002 Decl. of James Lonergan) ,-r7. According to a "Relief Chart'' prepared by the United States, 31 of the accepting Offerees were awarded relief under the recruiting claim; of that group, 12 received relief based on race or national origin, and 19 based on gender. See Nov. 15, 2004 Statement of Michael E. Rosman, Ex. 54 (Relief Chart for
26While the Appendix listed 54 potential beneficiaries, other custodial employees sought to obtain benefits under the Agreement after it was executed. Seven (Joseph Christie, Jerry Dale Lewis, Anthony Pantelides, Nicholas Pantelides, Percival Punter, Gilbert Rivera and Harry Santana) were added as beneficiaries because, although originally listed as white in the Board's records, each claimed to be either black or Hispanic. The United States and the Board added these seven, together with two others (Kevin LaFaye and Vernon Marshall), bringing the total number of beneficiaries to the final number of 63.
26

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 27 of 91
United States Response to Contention Interrogatories) ("Relief Chart'').27 The remaining 28 were awarded relief under the testing claims, all based on their race or national origin. See id.
The Board awarded the consenting Offerees relief under the Agreement on the dates that it received the Offerees' acceptances, which ranged from February 22 to March 14, 2000; thus, accepting Offerees who were still provisional employees received permanent-employee status sometime in between those two dates. See id., Ex. 50 (U.S. v. Board of Ed. Relief Granted). The Board thereafter fully implemented the Agreement. E. The Second Circuit's Remand
The proposed Brennan intervenors appealed the denial of their intervention motion. On August 3, 2001, the Second Circuit vacated Magistrate Judge Levy's consent judgment, holding that the proposed Brennan intervenors' intervention motion should have been granted. See New York City Bd. of Educ., 260 F.3d at 129. In doing so, it noted that "where a proposed intervenor's interests are otherwise unrepresented in an action, the standard for intervention is no more burdensome than the standing requirement, and that appellants' interest in the underlying action and the Agreement is for purposes of standing identical to that of the Offerees." Id. at 131 (citation omitted).
270f the 19 women receiving relief, 16 are identified in the Relief Chart as white, one (Celia Calderon) as Hispanic, one (Marcia Jarrett) as black and one (Kim Tatum) as Asian. These last three are not included in the number of beneficiaries receiving relief under the recruiting claim based on race or national origin; thus, the 12 receiving relief on those grounds are all men.
27

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 28 of 91
Commenting that the magistrate judge's ruling had "put the cart before the horse" by holding that the proposed Brennan intervenors' interest was insufficient because their employment status and seniority rights "were presumptively obtained as the result of discriminatory practices[,]" id. at 129 (emphasis added), the court explained that "while the presumption of validity of a settlement agreement may shift the burden of showing invalidity [of the Agreement] to non-party objectors, it carries no weight in the determination of whether an interest is sufficient for intervention under Rule 24(a)." Id. at 129-30. In that regard, the circuit court explained that Rule 24(a) "requires not a property interest but, rather, 'an interest relating to the property or transaction which is the subject of the action[,]"' id. at 130 (quoting Rule 24(a)(2)), and held that the proposed Brennan intervenors possessed such an interest because they claimed that the Agreement was "not justified by any demonstrated past discrimination and that their loss of relative seniority as a result of the Agreement is itself impermissible discrimination." Id. at 130.
The circuit court also noted that the proposed Brennan intervenors' interest in their seniority was "cognizable under Rule 24(a)(2)" because "the effects of a loss of relative seniority rights should not be regarded as too speculative and remote to justify intervention save, perhaps, in a case where a concrete effect on an employee is impossible." Id. at 131-32. The court explained, as an example, how seniority would adversely affect the proposed Brennan intervenors' ability to transfer:
If a [Beneficiary] obtains a desirable transfer, all comparable employees with more seniority than [a Brennan intervenor] but less than that of the [Beneficiary] may seek transfers at the next level of desirability, thereby foreclosing the
28

Case 1:96-cv-00374-FB Document 592 Filed 09/12/06 Page 29 of 91
particular appellant. The effects of the loss of relative seniority are not easily forecast and may not even be perceived as they happen. To take an alphabetical example, if employee Z is moved up to just above employee A, then the effects of that move on employee T will turn on the preferences of employees A through S. Where transfers among buildings are concerned, size (and therefore salary) will be important in determining whether an employee will exercise seniority to seek a transfer, but some employees will also be motivated by other factors, such as location. If employee Z secures a transfer, a chain reaction will begin with various openings and transfers occurring based on a variety of decisions by A through S. After all is played out, employee T may well find it impossible to reconstruct what transfer might have been available to him/her but for the moving-up of employee Z.
Id. at 132.
The circuit court declined to rule on the merits of Magistrate Judge Levy's
consent judgment because the proposed Brennan intervenors had "argued convincingly
that they were denied the opportunity to develop a record that would have permitted a
full and appropriate ruling on the fairness and constitutionality of the Agreement." Id. at 133.28 Accordingly, the court acknowledged that "the best course [was] to remand
the case to allow for a full development of the record." Id.
28As the circuit court also noted, "at least one reason the declarations were unrebutted and unchallenged was that they were served some weeks after objections were due and only days before the fairness hearing. In fact, one declaration was sent to the court via Federal Express only two days before the hearing." Id. at 130 n.4.
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F. The Post-Remand Interventions 1. The Brennan Interventions
After the case was remanded, the Brennan intervenors, now having attained that status as a consequence of the circuit court's decision, filed a complaint in intervention asserting that the challenged provisions violated Title VII and the Fourteenth Amendment; the United States and the Board moved to dismiss the complaint. On February 28, 2002, before that motion was fully briefed, Magistrate Judge Levy, with consent from the United States, the Board and the Brennan intervenors, approved the Agreement except for the challenged provisions (i.e., Paragraphs 13-16).
Subsequently, Magistrate Judge Levy noted that the Brennan intervenors had maintained that "they ha[d] no intention of attempting to establish liability against any party ... and that they d[id] not ... seek any remedy in this case other than a judgment denying approval of [the challenged provisions]"; consequently, he ruled that "[t]o the extent that [the Brennan intervenors' complaint in intervention] could be interpreted as asserting legal claims against any party, they are stricken" and that "[t]he Intervenors' pleading w[ould] be redesignated as 'Objections in Intervention,' and ... w[ould] not require a responsive pleading from either the United States or the [Board]." United States v. New York City Bd. ofEduc., CV-96-374, slip op. at 11-12 (E.D.N.Y. Sept. 30, 2002). The Brennan intervenors timely objected to Magistrate Judge Levy's ruling; they also invoked their rights as parties to the action to object to the magistrate judge's
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jurisdiction to render a final determination, thereby placing the litigation back in the hands of the Court. 2. The Caldero and Arroyo Interventions
In April 2002, subsequent to the Second Circuit's remand, the United States decided that it would no longer defend the lawfulness of the Agreement's remedies for those beneficiaries who had not taken any of the challenged exams. On June 17, 2003, the parties entered into a stipulation, "so ordered" by the Court, permitting intervention by the Caldera intervenors, being "a group of 22 beneficiaries who received permanent appointments and/ or retroactive seniority under the Agreement pursuant to the United States' recruiting claim." United States' Mem. of Points and Authorities in Response to this Court's Order of July 20, 2004 ("United States Mem. of Law") at 6. Then, in September 2003, the United States decided that it would no longer defend the grant of retroactive seniority provided to the beneficiaries who took and failed the exams unless it was "make-whole" in nature. The Court consequently granted intervention to the Arroyo intervenors, see Minute Entry of Jul. 9, 2004, "a group of nine beneficiaries who received permanent appointments and/ or retroactive seniority under the Agreement pursuant to the United States' testing claim." United States' Mem. of Law at 6. G. Post-Remand Challenges By The Brennan Intervenors 1. Challenges to the Reputed Protected Class
According to the Brennan intervenors, four of the beneficiaries - Kevin LaFaye, Steven Lopez, and brothers Anthony and Nicholas Pantelides - were not Hispanic because, although they had at least one parent or grandparent of Hispanic
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origin, they lacked any strong cultural or linguistic ties to that group. Additionally, the Brennan intervenors contended that Ciro Dellaporte ("Dellaporte"), one of the 12 males who received relief under the recruiting claim, was not a member of any protected class; although identified as Hispanic in the Board's records, Dellaporte was of Italian ancestry and had no cultural or linguistic ties to a Spanish-speaking country.
LaFaye's father was born in Puerto Rico, as was the mother of the Pantelides brothers; one of Lopez' grandparents was born in Mexico. None of the four spoke Spanish; however, Spanish was spoken in LaFaye's childhood home and the Pantelides brothers' mother generally spoke Spanish to their maternal grandmother.
By contrast, none of Dellaporte's parents or grandparents was born in a Hispanic country; moreover, he never identified himself as Hispanic. Eventually, the Board realized that Dellaporte was not entitled to relief under the Agreement. See Defs.' Mem. of Law in Opp. to Brennan Intervenors' Objections at 63 n.26 ("Defendants do not defend [Dellaporte's] appointment as part of the remedy in this case."). 2. Challenges to the Testing Claims a. Proof of Discrimination
The Brennan intervenors concede that Exam Nos. 5040 and 1074 had a disparate impact on blacks and Hispanics. They further concede that Exam No. 8206 had a disparate impact on blacks. They dispute, however, that it had a disparate impact on Hispanics; if correct, Luis Torres, the one Hispanic allegedly adversely affected by that exam, see Relief Chart, should not have received any relief.
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The Brennan intervenors' challenge regarding Exam No. 8206 was based
on the opinion of Dr. Phillip Bobko ("Dr. Bobko"), an expert retained by the Board at a
time when it was disputing the United States' claims. According to Dr. Bobko, there
was not a statistically significant disparity for Hispanics on Exam No. 8206 when
unqualified test-takers (i.e., those who lacked the minimum qualifications based on a
review of the applicants' experience papers) were removed from the population.
Because the Board initially made qualification determinations only for test-passers, Dr.
Bobko had to derive the number of unqualified test-failers based on data generated from a post-hoc review conducted by the Board.29 Dr. Bobko calculated that when
unqualified test-takers were removed, the pass rate of Hispanics was 89.3% of the pass rate of whites.30
Drs. Siskin and Cupingood opined that the Board's post-hoc review was not a "credible" basis for determining which test-takers were unqualified because,
unlike test-passers, test-failers could not administratively appeal an adverse determination. Jan. 10, 2005 Decl. of Charles E. Leggott, Ex. 22 (Drs. Siskin and Cupingood's May 1, 2003 Comments on Dr. Scharf's Report) at 4. Instead, Drs. Siskin
and Cupingood calculated pass rates for a population composed of qualified test-
29The post-hoc review mirrored the review of the test-passers in all respects except that it did not include an opportunity for applicants to administratively appeal an adverse determination; of the 56 test-passers initially determined to be unqualified, 23 overturned that determination through the appeals process.
30According to Dr. Bobko, of 257 qualified white test-takers, 232 passed the exam, resulting in a pass rate of 90.3%; of 31 qualified Hispanics, 25 passed, resulting in a pass rate of 80.6%. See Dr. Philip Bobko, Adverse Impact (If Any) Analysis for Open Competitive Engineer Exam #8206 (Nov. 12, 1997). Thus, the pass rate for Hispanics was 89.3% of the pass rate for whites.
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passers (since the number of unqualified test-passers was known) and all test-failers (since the number of unqualified test-failers was unknown); for this population, the pass rate of Hispanics was 77.7% of the pass rate of whites, a disparity of 2.51 standard deviations.
In addition, Drs. Siskin and Cupingood calculated pass rates based on three alternative assumptions: (1) the percentage of unqualified test-failers equaled the percentage of unqualified test-passers; (2) the percentage of unqualified test-failers was twice the percentage of unqualified test-passers; and (3) the percentage of unqualified test-failers was three times the percentage of unqualified test-passers. Given those assumptions, the pass rate of Hispanics was, respectively, 82.5%, 88.4%, and 95.2% that of whites, resulting in disparities of between 1.95 and 0.37 standard deviations. b. Non-Victims of Discrimination
The Brennan intervenors acknowledge that seven of the beneficiaries were victims of discrimination under the testing claims and received appropriate makewhole relief: Lloyd Bailey, Joseph Christie, Belfield Lashley, Gilbert Rivera, Peter Robertin, Felix Torres and Mayra Zephrini (Cintron). They contend, however, that the beneficiaries that fall into the following categories received relief under the Agreement that went beyond what they would have received but for discrimination:
First, some of the beneficiaries who were afforded relief under the testing claim took and passed one of the challenged exams, but failed other parts of the hiring process. For example, the Brennan intervenors claim that Nicholas Pantelides passed the challenged exam but failed the associated practical exam, and that Stephen Lopez
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passed the challenged exam but was rejected as a result of his experience papers. If true, these individuals would not qualify as victims of discrimination because they passed the exam that allegedly discriminated against them.
Second, some black and Hispanic beneficiaries who were afforded relief under the testing claims passed the first challenged exam that they took, and were hired. If so, those individuals would not be victims of discrimination because they passed the exam that allegedly discriminated against them; furthermore, the Brennan intervenors contend that awarding them retroactive seniority to a date earlier than their date of hire put them in a position better than they would have been in but for discrimination.
Third, some of the beneficiaries who were afforded relief under the testing claims would have failed other parts of the hiring process even if they had passed the exam. This contention was based on the Board's post-hoc inquiry of the beneficiaries' qualifications.31 Awarding relief to individuals who would have failed other parts of the hiring process would go beyond make-whole relief because it would put them in positions better than they would have been in but for the discrimination.
Finally, some of the beneficiaries were awarded retroactive seniority from the date they were hired as provisional hires, as opposed to the median hire date, even though their provisional hire date occurred before any individual was hired from the
31The following beneficiaries, each of whom failed one of the challenged exams, were found in a post-hoc review to lack the minimum qualifications set forth in the notice publicizing the applicable exam: for the 5040 exam, Laura Daniele, Thomas Fields, Carla Lambert, Angel Pagan, Anthony Pantelides, Kim Tatum and Pedro Arroyo; for the 8206 exam, Luis Torres; and for the 1074 exam, Charmine DiDonato, Elaine Farr, Carla Lambert, James Martinez and Kim Tatum.
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eligibility list for the discriminatory exam. For example, the Brennan intervenors contend that Jose Casado took and failed Exam No. 1074, but was hired as a provisional Custodian on June 16, 1995; the first person hired off the list associated with Exam No. 1074 had a reporting date of March 27, 1997 (almost two years after Casado was hired); nonetheless, Casado was afforded relief under the testing claims, and received a retroactive seniority date of June 16, 1995 - before he could have been hired but for discrimination (i.e., March 27, 1997). If true, awarding such relief put those individuals in positions better than they would have been in but for discrimination.32 3. Challenges to the Recruiting Claim a. Proof of Discrimination
After the circuit court's remand, the Brennan intervenors retained their own expert, William J. Carrington, Ph.D. ("Dr. Carrington"), to review Dr. Ashenfelter's report. In Dr. Carrington's report, he noted that there were two alternative explanations for the disparity found by Dr. Ashenfelter: (1) the significant minimum qualifications required (e.g., females were significantly under-represented in the occupations that Dr. Ashenfelter identified as the most common ones among applicants), and (2) different interests in Custodial Positions; he also noted that Dr. Ashenfelter did not account for English-language proficiency. Additionally, Dr. Carrington posited that the statistics might not be reliable because of the small sample size of the census data for certain
32The United States also challenges the award, at least in part, as reflected in its Relief Chart. It contends that 15 beneficiaries were entitled to less retroactive seniority than afforded by the Agreement, and that two were entitled to more. It also contends, for various reasons that need not be detailed here, that 25 beneficiaries are not entitled to any retroactive seniority. Finally, it contends that the appropriate remedy for beneficiary Elaine Farr is unknown.
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occupations, as well as temporal mismatches (i.e., the decennial census data yielded only data from 1980 and 1990 whereas Dr. Ashenfelter required data from the noncensus years in which the challenged exams were administered- 1985, 1989 and 1993).
Thereafter, the Board retained an expert, Amy Henderson, Ph.D. ("Dr. Henderson"), to review Dr. Carrington's report. Dr. Henderson noted that Dr. Carrington did not "offer [any] new statistical evidence" and "never test[ed] the implications of his criticisms." Dec. 23, 2004 Decl. of Emily Martin, Ex. 34 (A Critique of William J. Carrington's Report of Findings) at 2. For example, with regard to Dr. Carrington's claim that English proficiency might have accounted for the discrepancy between actual and expected test-takers, Dr. Henderson tested that claim against the data for Exam No. 8206 and found that English proficiency was not a significant factor.
The Caldera intervenors also retained an expert, Joyce P. Jacobsen, Ph.D. ("Dr. Jacobson"), to review the reports of Drs. Ashenfelter and Carrington. Dr. Jacobsen concluded that Dr. Ashenfelter's approach was "reasonable" because it used the best available data, and that the results were "statistically significant[,] supporting the hypothesis of a systematic shortfall in the proportions of minorities and women applying for [custodial positions]." Dec. 14, 2004 Decl. of Joyce P. Jacobsen ,-r 12; id., Ex. 1 at 2. With regard to Dr. Carrington's report, like Dr. Henderson, Dr. Jacobsen concluded that it was "unconvincing and d[id] not provide alternative calculations." Id. ,-r 12.
In addition to challenging the statistical evidence of disparities, the Brennan intervenors also argue that there was no evidence that the disparities were
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caused by the Board's recruiting practices. In this regard, they rely on information provided by the Board during discovery: Each exam was published in The Chief, the City's civil-service newspaper. In addition, the Board's Office of Recruitment distributed "Exam for Jobs" booklets to agencies and organizations on its mailing lists; during the relevant time periods, the list comprised 1,300 to 3,000 persons and organizations, including "libraries, colleges, high schools, community-based organizations, community boards throughout [New York] City, human resources administrations, Training Assessment and Placement centers, organizations serving the disabled communities such as the Federation of Employment and Guidance Services, certain trade schools, and youth organizations throughout the City such as YMCA and Boys Clubs." Nov. 15, 2004 Statement of Michael E. Rosman, Ex. 26 (Defs.' Responses and Objections to the Caldera Intervenors' First Interrogatories to Defs.) at 4. The Board also posted notices within its own agencies. See id., Dep. Exs. (Rosenfeld Dep. Tr. at 13, 33-34). b. Non-Victims of Discrimination
The Brennan intervenors maintain that some of the Asian and female beneficiaries who were afforded relief under the recruiting claim took the first challenged exam for which they were qualified. They reason that those individuals who learned about the first exam and took it did not suffer from any recruiting discrimination; those individuals who took the first exam for which they were qualified, but received retroactive seniority to an earlier date, were awarded relief that went beyond make-whole relief because it put them in positions better than they would have
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been in but for discrimination. H. Issues Briefed
On July 20, 2004, the Court issued an order setting a briefing schedule and instructing the parties to address four issues:
(1) Can paragraphs 13-16 of the settlement agreement be entered as a consent judgment?
(2) If so, what legal standard governs judicial approval or disapproval of paragraphs 13-16?
(3) If not, what legal standard governs the review of the legality of the benefits awarded pursuant to paragraphs 13-16?
(4) Does the evidence meet the applicable standard? Order of Jul. 20, 2004, at 2. These issues were fully briefed by May 2005, and the Court held oral argument on October 6, 2005.
DISCUSSION Preliminary Matters A. Brennan Intervenors' Status Magistrate Judge Levy improperly relegated the Brennan intervenors to the status of objectors-in-intervention, rather than parties to the litigation, and redesignated their complaint as "Objections in Intervention"; therefore, he ruled that responsive pleadings would not be required. Given that the Brennan intervenors seek to enjoin the implementation of those parts of the Agreement affecting their seniority rights, and the circuit court's recognition that they had standing to do so, they are
entitled to the status of full, unqualified parties to the litigation. Cf McNamara v. City of
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Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998) ("A plaintiff who would have been no better
off had the defendant refrained from the unlawful acts of which the plaintiff is
complaining does not have standing under Article III of the Constitution to challenge
those acts in a suit in federal court.").33
B. Effect of the Summary Judgment Motions on Action II
That the United States and the Board have not until now had an
opportunity to interpose an answer to the Brennan intervenors' complaint does not
preclude the Court from addressing the legality of the Agreement; the parties have
moved for summary judgment regarding its validity, and it is well-settled that issue
need not be joined as a predicate for seeking summary judgment. See Fed. R. Civ. P. 56
("A party seeking to recover upon a claim ... may, at any time after the expiration of 20
days from the commencement of the action ... , move ... for a summary judgment in the
party's favor upon all or any part thereof." (emphasis added)).
Even though the summary judgment motions are directed only to
Action I, the focused issue they address - the legality of the Agreement - is common to
33 None of the Brennan intervenors has yet suffered any actual adverse consequences since they have not been denied transfers (unlike the two white males in Action II) or TCAs, and have not been laid off; nevertheless, their claims are ripe for adjudication. See Benson v. General Motors Corp., 716 F.2d 862, 864 (11th Cir. 1983) (holding that for purposes of statute of limitations, claim accrues from injury, which is the loss of seniority, not when one "became aware of one of the injury's many manifestations"); Anderson v. Legal Aid Society, 1995 WL 322182, at *3 n.5 (S.D.N.Y. May 26, 1995) ("Although plaintiffs have not been terminated or threatened with future layoffs, they have suffered a legally cognizable injury because they lost bargaining unitseniority ...." (citing Benson, 716 F.2d at 864)); see also Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569-72 (1984) (striking down court order because "unless set aside [the order] must be complied with in connection with any future layoffs." (emphasis added)).
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both actions, which have been consolidated under Fed R. Civ. P. 42(a). The central purpose of that rule is to give the court broad discretion to manage its docket "so that the business of the court may be dispatched with expedition and economy while providing justice to the paries." 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 2381 (2d ed. 1995). The Court will exercise that discretion since resolution of the summary judgment motions in Action I applies with equal force to Action II; it will also best serve the interests of all parties, as well as the effective and expeditious administration of justice, to facilitate the end of this decade-long litigation. C. Protected Class
The Brennan intervenors claim that five of the 59 beneficiaries are not members of a protected class because each lacks the requisite cultural or linguistic ties to qualify as Hispanic.
The Economic Employment Opportunity Commission ("EEOC") "defines national-origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group," 29 C.P.R. § 1606.1 (emphasis added); therefore, an ancestral place of origin is sufficient to establish membership in a protected class.
Under the EEOC's definition of national origin, Dellaporte did not qualify because the Board, which no longer defends his appointment, improperly listed him on its records as Hispanic; plainly, he is of Italian ancestry and has no Hispanic cultural or linguistic ties. He is, therefore, not entitled to any benefits under the Agreement.
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However, the remaining four- LaFaye, Lopez and the Pantelides brothers- do qualify because LaFaye's father and the Pantelides' mother were born in Puerto Rico, and Lopez's grandfather was born in Mexico.34
Title VII Consistent with the doctrine of constitutional avoidance, the Court will first determine whether the Brennan intervenors' Title VII rights have been violated before addressing their Fourteenth Amendment claims. See Bechtel v. Competitive Technologies, Inc., 448 F.3d 469, 476 (2d Cir. 2006) ("A fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." (citations and quotations omitted)). A. Statistical Basis For the Affirmative-Action Plan Both disparate treatment and disparate impact claims are cognizable under Title VII. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (explaining that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation"); Robinson v. Metro-North Commuter RR Co., 267 F.3d 147, 160 (2d Cir. 2001) ("[W]here the inquiry in a pattern-or-practice disparate treatment claim is focused on determining the existence of discriminatory intent,
34The Brennan intervenors cite Peightal v. Metropolitan Dade County, 26 F.3d 1545 (11th Cir. 1994), for the proposition that "a person's claim of identification with a certain racial or ethnic group should accompany strong visible indication that the person culturally and linguistically identifies with the group he or she claims." Id. at 1559. Peightal is inapposite because, in determining that these contested beneficiaries qualified as Hispanic, the Board relied on proof of their places of origin, not merely their "claims of identification."
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disparate impact claims are concerned with whether employment policies or practices that are neutral on their face and were not intended to discriminate have nevertheless had a disparate effect on the protected group.").
By pursuing its Title VII disparate-impact claims against the Board, the United States had the burden of establishing a prima facie case that the Board engaged in "a particular employment practice that cause[d] a disparate impact on the basis of race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(k)(1)(A)(i). To make that showing, it had to "(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two." Robinson, 267 F.3d at 160. A disparate impact and its causal relationship to an employment practice is usually established by statistical evidence, which (1) must reveal"that the disparity is substantial or significant," and (2) must be "of the kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity." Id. (citations omitted). The employer can rebut that prima facie burden "by introducing evidence to show that either no statistically significant disparity in fact exists or the challenged practice did not cause the disparity." Id. at 161. Alternatively, it may refute the requisite causal connection by "demonstrating a business justification for the policy or practice." Id.
Seeking to satisfy its prima facie burden in its Title VII action challenging the Board's employment practices, the United States adduced significant statistical evidence. Although the litigation was settled before an adjudication as to whether the United States had sustained its burden, these statistics serve to satisfy the requisite
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evidentiary showing by the Board in the face of the Brennan intervenors' own Title VII claim challenging the Agreement, except as it relates to the testing claim involving Exam No. 8206.
As the Supreme Court made clear in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987), drawing upon its prior decision in United Steel Workers of America v. Weber, 443 U.S. 193 (1979), an employer seeking to justify the adoption of an affirmative-action plan in the face of a challenge under Title VII need not point to its own prior discriminatory practices, nor even to evidence of an "'arguable violation' on its part[,]" 480 U.S. at 630; rather, "it need point only to a 'conspicuous imbalance ... in traditionally segregated job categories," so long as the plan does not "unnecessarily trammel" the interests of those adversely affected by the plan. Id. at 630, 638.
Johnson equated "conspicuous imbalance" with "manifest imbalance," and held that "in determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer's work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise," id. at 63132; however, "[w]here a job requires special training ... the comparison should be with those in the labor force who possess the relevant qualifications." Id at 632.
As the majority opinion in Johnson explained, "[a] manifest imbalance need not be such that it would support a prima facie case against the employer[,]" since it"d[id] not regard as identical the constraints of Title VII and the Federal Constitution
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on voluntarily adopted affirmative action plans." Id. In so holding, the Court rejected the view of Justice O'Connor in her concurring opinion that "the proper initial inquiry in evaluating the legality of an affirmative action plan by a public employer under Title VII is no different from that required by the Equal Protection Clause[,]" namely that "the employer must have had a firm basis for believing that remedial action was required," which she equated to proof "sufficient to support a prima facie claim under Title VII." Id. at 649 (O'Connor, J., concurring). The majority opinion's rationale for embracing the manifest imbalance standard, rather than requiring the employer to meet the more demanding prima facie burden needed to establish a Title VII disparate impact, was that "[a]pplication of the 'prima facie' standard in Title VII cases would be inconsistent with Weber's focus on statistical imbalance, and could inappropriately create a significant disincentive for employers to adopt an affirmative action plan." Id. at 632-33.
Thus, the "manifest imbalance" test differs from a prima facie case of disparate impact in two important respects: First, as Johnson makes clear, the requisite magnitude of the disparity is less under the "manifest imbalance" test, although just how much less is unclear. See David E. Meyer, Note: Finding a "Manifest Imbalance": The Case for A Unified Statistical Test for Voluntary Affirmative Action under Title VII, 87 Mich. L. Rev. 1986 (June 1989) (noting that apart from observing in Johnson that an imbalance need not be severe enough to support a prima facie case of discrimination, "[t]he Court
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has not gone further ... in defining a floor beneath which an imbalance will not be considered sufficiently 'manifest."').35
Second, the statistical evidence need not establish a causal connection between the disparity and any challenged employment practice; as explained in Johnson, this latter difference "between the 'manifest imbalance' and 'prima facie' standards is illuminated by Weber." 480 U.S. at 633 n.lO. The affirmative-action plan in Weber was implemented to remedy the gross under-representation of blacks among the skilled craftworkers at one of the employer's plants; the disparity existed, not because the employer had refused to hire qualified blacks, but "[b]ecause blacks had long been excluded from craft unions." 443 U.S. at 198. The Supreme Court upheld the plan because it "f[ell] within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous [i.e., manifest] racial imbalance in traditionally segregated job categories." Id. at 209. By contrast, the prima facie standard - with its insistence on a causal connection between the disparity and a practice attributable to the employer - "would have invalidated the plan in Weber itself." Johnson, 480 U.S. at 633 n.lO.
35The articulation of the "manifest imbalance" and "unnecessary trammeling" standard for adjudicating Title VII challenges to affirmative-actions plans contrasts with the standard governing a court's approval of a settlement agreement in the absence of such litigation- namely, whether "there is an existing condition that serves as a proper basis" for the plan, and whether the "specific remedies of the compromise agreement are reasonable and lawful." Kirkland, 71 F.2d at 1129. Obviously, neither standard can conflict with Title VII or Constitutional proscriptions, but the manifest imbalance standard, employed when the specific claims of third-party litigants are the subject of litigation, calls for a more focused and heightened assessment of those claims.
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1. Testing Claims
Except in respect to Exam 8206, affecting the one Hispanic, Luis Torres,
the Court need not reflect upon the nuanced differences between a manifest imbalance
and a prima facie disparate impact since the Board's statistical evidence, adduced by the
United States in its litigation against the Board, satisfied the higher prima facie standard,
which has not been overcome by the Brennan intervenors' challenges.36
The Second Circuit has explained that it primarily relies upon two
methods to evaluate prima facie disparities under Title VII, namely the "four-fifths" (or
80%) rule and the "two standard deviations" rule:
36As Johnson holds, where an employer has taken any prohibited Title VII factor into account for its employment decision,
the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer's decision, the burden shifts to the plaintiff to prove that the employer's justification is pretextual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, however, as petitioner suggests, that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.
480 U.S. at 626-27. The unique procedural posture of this case obviates the need for the Court to delve into the application of these shifting burdens; faced with statistical evidence establishing a manifest imbalance, the Brennan intervenors, as the parties challenging the Agreement, had the ultimate burden of proof. See Bass v. Board of County Comm'rs, 256 F.3d 1095, 1114 (11th Cir. 2001) (noting that the burden of proof in challenges under Title VII rests with challenger "unless or until the Supreme Court revisits its holding in Johnson").
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First, we have considered persuasive the EEOC Guideline [29 C.F.R. § 1607.4D] that states that:
A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact. Smaller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms ....
As an alternative measure of differences between groups, we have also looked to whether the plaintiff can show a statistically significant disparity of two standard deviations. . . . Courts generally consider this level of significance sufficient to warrant an inference of discrimination.
Although courts have considered both the four-fifths rule and standard deviation calculations in deciding whether a disparity is sufficiently substantial to establish a prima facie case of disparate impact, there is no one test that always answers the question. Instead, the substantiality of a disparity is judged on a case-by-case basis.
Smith v. Xerox Corp., 196 F.3d 358, 365 (2d Cir. 1999) (internal citations omitted;
emphasis added), overruled on other grounds by Meacham v. Knolls Atomic Power Lab.,_
F.3d _ , 2006 WL 2338174, at *4 (2d Cir. 2006). These rules of thumb go only to the
magnitude of the disparity; they have no bearing on whether the disparity is
attributable to the employer's actions. See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d
1263, 1277-78 (11th Cir. 2000) (rejecting Title VII challenge despite significant disparity
between employer's "female hiring percentage (0%) [and] the percentage of women in
the qualified labor market (31.9% )," because EEOC failed "to show a causal link
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between some facially-neutral employment practice ... and the statistical disparity" (emphasis omitted)).
The pass rates for blacks on the three challenged exams ranged between 23.3% and 58.8% of the pass rates for whites; these disparities varied from the expected results by between 5.14 and 13.85 standard deviations. See Table, supra p. 12. Under both a "four-fifths" analysis and a "two standard deviations" analysis, this statistical evidence is unquestionably sufficient "to serve as a predicate for a voluntary compromise containing race-conscious remedies." Kirkland, 711 F.2d at 1130. The results for two of the exams are likewise adequate to justify affirmative action for Hispanic test-takers: Hispanics passed Exam No. 5040 and Exam No. 1074 at roughly 50% the pass rate of whites, a disparity amounting to approximately 8 standard deviations. See Table, supra p. 12.
In the face of these statistics, the Brennan intervenors concede that there was, as to blacks, a manifest imbalance on all three exams, and, as to Hispanics, a manifest imbalance on Exams No. 5040 and 1074, see October 6, 2005 Oral Argument Tr. at 29 ("MR. COLANGELO: Speaking specifically to the testing claims, the United States' testing claims which affect the Arroyo intervenors, there's a concession of the disparate impact in three of the exams as they affected African-Americans, two of them as they affected Hispanic test takers. The Court: That's true, Mr. Rosman, correct? MR. ROSMAN: Yes, it is."); they argue, however, that, as to Hispanics, Exam 8206 did not result in a manifest imbalance.37
37The Brennan intervenors also contend that the challenged exams were consistent with business necessity. Although in a non-affirmative-action case, employers
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As recounted in the Background section, the effect of Exam No. 8206 on Hispanics when unqualified test-takers are removed from the equation is in dispute; depending on the methodology employed by the experts to ascertain the number of unqualified test-takers, qualified Hispanics passed the exam at anywhere between 77.7% and 95.2% the rate of whites, resulting in discrepancies of between 0.37 and 2.51 standard deviations. Faced with these inconsistencies, the Court cannot determine as a matter of law that Exam No. 8206 resulted in the requisite manifest imbalance to warrant affirmative-action relief for the one affected Hispanic; accordingly, a hearing is required to resolve this issue. 2. Recruiting Claim
The disparities underlying the United States' recruiting claim - that is, the differences between the expected and actual numbers of black, Hispanic, Asian and female test-takers - ranged from 2.76 to 12.81 standard deviations. See Tables, supra pp. 14-15. Notably, these discrepancies were not calculated simply by comparing the number of minorities and women who took the exams to the number of minorities and women in the general labor pool; rather, Dr. Ashenfelter used previous occupations as a proxy for work experience to derive comparators of qualified minorities and women.
Since there were at least two standard deviations between the actual and expected number of qualified test-takers, the evidence was sufficient to establish for each exam a manifest imbalance in the traditionally segregated custodial positions. The
may defeat a disparate-impact claim by demonstrating that their challenged practice is consistent with business necessity, see Robinson, 267 F.3d at 161, it is ludicrous to argue that when an employer takes action to rectify past discrimination it is acting contrary to its business needs.
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Brennan intervenors do not claim otherwise, but challenge the statistics on other grounds, contending that they do "not take into account the qualifications and interest of those in [Dr. Ashenfelter's] comparator group,"see Brennan Intervenors' Mem. of Points and Authorities in Response to this Court's July 20 Order ("Brennan Intervenors' Mem.") at 57-58, and do not establish a causal relationship. See id.38
Although the Brennan intervenors' expert sought to undermine Dr. Ashenfelter's report, the Brennan intervenors have not presented any evidence to countermand Dr. Ashenfelter's statistical analysis or his basis for arriving at his comparators. It was not necessary for the Board to "rule out all other variables to prevail," United States v. City of Warren, 138 F.3d 1083, 1094 (6th Cir. 1998) (citations omitted); rather, as the party bearing "[t]he burden of proving [the plan's] invalidity," Johnson, 480 U.S. at 627, it was incumbent on the Brennan intervenors to present evidence that was "more accurate, valid, or reliable than the [Board's] evidence." Robinson, 267 F.3d at 161; see also EEOC v. Joint Apprenticeship Comm. of Joint Industry Bd. of Elec. Industry, 164 F.3d 89, 98 (2d Cir. 1998) (noting that statistical evidence of disparate impact could not be debunked by "unsupported conjectures and assertions" that other, non-discriminatory factors would explain the disparities). This they have failed to do.
Nor was it necessary for the Board to establish a causal relationship between the manifest imbalance and its recruiting practices since, once again, as Johnson
38In arguing lack of causation, the Brennan intervenors do not prescind between their Title VII and Fourteenth Amendment challenges. As will be seen, the distinction is a material one.
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explained, the employer "need not point to is own prior discriminatory practices." 480
U.S. at 630.
B. Relief
As for those beneficiaries who were not actual victims of discrimination,
the Brennan intervenors' argue (1) that the grant of retroactive seniority to non-victims
is never permissible as part of an affirmative-action program; (2) alternatively, that the seniority awards in all respects unnecessarily trammel their rights.39
As for the first argument, the Supreme Court in Firefighters Local Union No.
1784 v. Stotts, 467 U.S. 561 (1984), left open the issue as to whether an employer can
voluntarily adopt an affirmative-action plan awarding retroactive seniority to non-
victims of discrimination- specifically, preferential layoff protection- without violating
Title VII. See id. at 583 ("Whether the City ... could have taken this course without violating the law is an issue we need not decide.").40 The Brennan intervenors correctly
note that the Supreme Court has yet to address the issue, and rely on two Second
39The Brennan intervenors do not question that retroactive seniority is appropriate for those beneficiaries who were actual victims of discrimination, nor could they in light of the clearly established Supreme Court and Second Circuit cases holding that retroactive seniority can be awarded, be it by court order after trial, consent decree, or by an affirmative-action plan to actual victims of discrimination in order to afford them make-whole relief. See International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Franks v. Bowman Transp. Co., 424 U.S. 747 (1976); Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976); Acha v. Beame, 531 F.2d 648 (2d Cir. 1976). The rationale for doing so is that the non-minorities are not being victimized; rather, the victims of discrimination are being put in their rightful place.
40Although the city was a public employer, the Fourteenth Amendment was not at issue since the plan was challenged only on the ground that it was not a proper remedy under Title VII. See Stotts, 467 U.S. at 582-83.
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Circuit cases to support their contention, Chance v. Board of Examiners, 534 F.2d 993 (2d
Cir. 1976), and Acha v. Beame, 531 F.2d 648 (2d Cir. 1976). Their reliance is misplaced.
In Chance, the circuit court simply struck down racial seniority preferences
because there was no showing under § 703(h) of Title VII, in the face of a bona fide
seniority system, of an actual intent to discriminate against minorities. See 534 F.2d at
998 ("[T]he non-remedial distortion of a seniority system through preferential treatment
based solely upon race is a form of reverse discrimination specifically proscribed by Congress.").41 Acha involved a situation where there was adequate proof of racial
discrimination; accordingly, the court held that the "[a]ward of seniority to those who
had actually been discriminated against by the[] defendants is not a 'preference'
because of sex. It is rather a remedial device well within the broad power conferred on the district court by section 706(g)." Acha, 531 F.2d at 656 (citing 42 U.S.C. § 2000e5(g)).42
41Section 703(h) provides:
[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system ... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin ....
42 U.S.C. § 2000e-2(h). 42Section 706(g) provides that, upon a finding of unlawful discrimination, a court
may enjoin the challenged employment practice and "order such affirmative relief as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate[,]" but that
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Chance and Acha, therefore, simply addressed situations where the circuit court had to determine whether the requisite discrimination under § 703(h) had been established to justify a district court's award of retroactive seniority to actual victims of discrimination. Nothing in those cases addressed the issue of whether a voluntary affirmative-action plan granting retroactive seniority to non-victims of discrimination would violate Title VII. In a similar vein, the Brennan intervenors' reliance upon Franks v. Bowman Transportation Company, 424 U.S. 747 (1976), and International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), is also miscast since, like Acha, they simply held that § 703(h) did not preclude a court from awarding retroactive seniority to actual victims of discrimination.
Stott's open question notwithstanding, there is nothing in Title VII that vitiates an affirmative-action plan granting preferential seniority to non-victims of discrimination; to hold otherwise would be anathema to the broad reach of Weber and Johnson, and the Supreme Court's explicit holding, subsequent to Stotts, in Local No. 93, Int'l Assoc. of Firefighters v. City of Cleveland, that "whatever the extent of the limits § 706(g) places on the power of the federal courts to compel employers and unions to take certain actions that the employers or unions oppose[,]" it "by itself does not restrict
[n]o order of the court shall require the admission or reinstatement of an individual as an employee, or the hiring, reinstatement or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin .... 42 U.S.C. § 2000e-5(g).
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the ability of employers or unions to enter into voluntary agreements providing for race-conscious remedial action." 478 U.S. 501, 521 (1986);43 see also Paradise v. Prescott, 767 F.2d 1514, 1529 (11th Cir. 1985) ("[N]either Section 706(g) nor the Stotts case, prevents a court from approving a consent decree that provides relief which is consistent with, but goes beyond, that authorized in the underlying statute." (citation omitted)).
Resolution of the validity of the retroactive seniority benefits in the present case for non-victims of discrimination should be governed, therefore, by the guidance provided by Weber and Johnson in determining whether the relief afforded by the Agreement unnecessarily trammeled upon the rights of the non-minorities. This requires discrete consideration of the impact the preferential seniority accorded to those beneficiaries had on the Brennan intervenors' transfer rights, TCA credits and protection against layoffs.
In Weber, white workers brought a Title VII action against their private employer challenging the legality of an affirmative-action plan entered into between the employer and the employees' union under a collective bargaining agreement that reserved for black employees 50 percent of the openings in an in-plant craft training program until the percentage of black craftworkers at the plant was commensurate with the percentage of blacks in the local labor force. After noting that "Title VII's
43The affirmative-action plan incorporated in the consent decree in Local No. 93 involved the alteration of a seniority system (requiring the City to forego using seniority points as a factor in making promotions). The Supreme Court did not reach the merits of the plan, holding only that the restrictions of§ 706(g) are inapplicable to consent decrees.
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prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all
private, voluntary, race-conscious affirmative action plans," 443 U.S. at 208,44 the Court
gave its approval to the plan without "defin[ing] in detail the line of demarcation
between permissible and impermissible affirmative action plans." Id. It reasoned:
It suffices to hold that the challenged ... affirmative action plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to 'open employment opportunities for Negroes in occupations which have been traditionally closed to them.' At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require discharge of white workers and their replacement with new black hirees. (citation omitted). Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate
44Section 703(a) of Title VII makes it unlawful for an employer (1) "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[,]" or (2) "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a). As explained in Griggs, the latter proscription serves as the basis for disparate-impact claims. See 401 U.S. at 431. Section 703(d) provides:
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
42 U.S.C. § 2000e-2(d). 56

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a manifest racial imbalance. Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkers in the Gramercy plant approximate the percentage of blacks in the local labor force. Id. at 208-09. In Johnson, the Court had the opportunity to consider the validity of an affirmative-action plan voluntarily adopted by a public agency in the face of a Title VII challenge by a male who was denied promotion in favor of a female where sex was the determining factor in her selection.45 After finding that there was the requisite manifest imbalance, based on a showing that none of the 238 skilled craftworker positions in the Santa Clara County labor force were held by women, the Court, addressing the second branch of Weber, held that the plan did not "unnecessarily trammel[] the rights of male employees or create[] an absolute bar to their advancement'' since it "merely authorize[d) that consideration be given to affirmative action concerns when evaluating qualified applicants," and that sex was simply "one of numerous factors" that were taken into account. 480 U.S. at 638. Amongst the other factors were that (1) the plan did not involve quotas; (2) the non-minority had no absolute entitlement to the position and, consequently, the plan did not unsettle any legitimate, firmly rooted expectation; (3) although denied the promotion, the non-minority retained his employment at the same salary and seniority, and remained eligible for future promotions; and (4) the plan was intended to attain a balanced workforce, not maintain one. In concluding, the
45Although the employer in Johnson was a state actor, the employee only sued under Title VII; "no constitutional issue was either raised or addressed in the litigation." 480 U.S. at 620.
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Court viewed the plan as "a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency's work force." Id. at 642. As such, it was "fully consistent with Title VII, for it embodie[d] the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace." Id. 1. Transfers and TCAs
Under Weber and Johnson the award of retroactive seniority to non-victims insofar as it affects transfers and TCAs passes muster under Title VII. In the first place, it has a limited effect: While being passed over for a transfer or a TCA is not inconsequential, it is less harsh than losing one's job or being required to accept a reduction in pay; in any event, there is no absolute entitlement by any employee to either of these benefits.
Moreover, neither race, national origin nor gender are "absolute bars" to advancement by the non-minorities; there are no quotas or set-asides for minorities and women on the transfer and TCA lists. With respect to transfers, seniority is only one factor; with respect to TCAs, seniority only affects the order in which TCAs are awarded, not their frequency. And even when race, national origin or gender proves to be the deciding factor, the unsuccessful applicant remains eligible for future transfers and TCAs. Finally, the award is temporary - it comprises a one-time benefit to current employees; future hirees will attain and accrue seniority without regard to race, national origin or gender.
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The Court's conclusion is consistent with out-of-circuit cases receptive to affirmative-action plans granting preferential promotions in the face of Title VII challenges by non-minorities whose seniority rights were compromised by preferences bestowed upon minority non-victims. See, e.g., Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 487 (6th Cir. 1985) (upholding affirmative-action plan that provided that remedial promotions would be made on basis of one non-minority to one minority appointee "even though the plan [had] the effect of overriding the seniority rights of non-minorities"); Kromnick v. School Dist. of Philadelphia, 739 F.2d 894, 911 (3d Cir. 1984) (providing minorities certain preferences in transfers in order to maintain a target ratio of minority faculty to students); Prescott, 767 F.2d at 1514 (approving onefor-one promotional order entered by court in support of a voluntary consent decree). 2. Layoffs
In Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the Supreme Court struck down under the Fourteenth Amendment an affirmative-action plan affording preferential layoffs to non-victims of discrimination. The plurality opinion, citing Stotts and Weber, noted that it had "previously expressed concern over the burden that a preferential-layoffs scheme imposes on innocent parties," id. at 282, and explained:
In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.
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Id. at 283-84. Although, as the Court subsequently explains in addressing the Brennan
intervenors' constitutional challenges, the Board's grant of seniority benefits as to layoffs would not survive the Fourteenth Amendment's standards for race- and national-origin-based remedies, it also fails Title VII's unnecessary-trammeling test, which applies with equal force to affirmative-action plans based on race, national origin and gender.
Five circuit courts have passed upon the propriety of affirmative-action plans granting layoff preferences to non-victims in the face of Title VII challenges. Three have approved, see Tangren v. Wackenhut Servs., Inc., 658 F.2d 705 (9th Cir. 1981); Britton v. South Bend Community School Corp., 775 F.2d 794 (7th Cir. 1985), rev'd on other grounds, 819 F.2d 766 (7th Cir. 1987); Wygant v. Jackson Board of Educ., 746 F.2d 1152, 1157-58 (6th Cir. 1984), rev'd on other grounds, 476 U.S. 267 (1986); however, they preceded Johnson, where the Supreme Court gave content to the unnecessarilytrammeling prong.
More significantly, the alteration of seniority rights impacting layoffs in each of those cases was sanctioned by a collective bargaining agreement ("CBA"). See Tangren, 658 F.2d at 707; Britton, 775 F.2d at 805; Wygant, 746 F.2d at 1157. A CBA is the culmination of negotiations between an employer and a union charged with representing the interest of all its members, minority and non-minority alike; as the Ninth Circuit noted in Tangren, "[s]eniority is merely an economic right which the unions may elect to bargain away." 658 F.2d at 707. It would be disingenuous for an
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employee to argue that an employer's affirmative-action plan had disrupted settled expectations when those expectations had been created by a CBA incorporating the plan.
By contrast, the two cases where the circuit courts disapproved did not entail collective bargaining agreements; moreover, they were decided after Johnson. In Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431 (lOth Cir. 1990), when a school district needed to lay off all but two of its social workers, the district opted to retain a black social worker because a school policy provided "[i]n the event of a reduction in force, the District shall make reasonable effort to maintain, as a minimum, the percentage of minority teachers employed within the district." The Tenth Circuit held that the plan unnecessarily trammeled the rights of non-minorities because each of the factors present in Johnson was absent, explaining:
In contrast to the plan in Johnson, the position given to [the minority employee] was earmarked for a black person to the exclusion of all other qualified persons. Second, the trial court found that plaintiff was entitled to the position given to [the minority employee] by virtue of her seniority. Third, the District's decision, which by its own terms was made to ensure employment of at least one black administrator, was intended to maintain rather than achieve a particular racial balance. Id. at 440 (internal citations omitted). The Third Circuit was faced with a similar situation in Taxman v. Board of Educ. ofTwp. ofPiscataway, 91 F.3d 1547 (3d Cir. 1996). There, a school district used race as a factor in selecting which of two equally qualified employees would be laid off. After holding that the layoff plan was not supported by a manifest imbalance in the
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employment of minorities, the court also held that the plan failed the "unnecessary
trammeling" standard, explaining:
[W]e are convinced that the harm imposed upon a nonminority employee by the loss of his or her job is so substantial and the cost so severe that the Board's goal of racial diversity, even if legitimate under Title VII, may not be pursued in this particular fashion. This is especially true where, as here, the nonminority employee is tenured. In Weber and Johnson, when considering whether nonminorities were unduly encumbered by affirmative action, the Court found it significant that they retained their employment. We, therefore, adopt the plurality's pronouncement in Wygant that [w]hile hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. Accordingly, we conclude that under the second prong of the Weber test, the Board's affirmative action policy violates Title VII. In addition to containing an impermissible purpose, the policy unnecessarily trammel[s] the interests of the [nonminority] employees.
Id. at 1564-65 (citations and quotations omitted).
In the same vein as the Tenth Circuit in Cunico and the Third Circuit in
Taxman, the Court concludes that, insofar as they affect layoffs, the seniority benefits
provided by the Agreement unnecessarily trammel upon the rights of the Brennan
intervenors because they impose too heavy a burden. And, unlike transfers and TCAs,
which are subject to additional considerations unrelated to race, national origin or
gender, such as job performance and availability, layoffs will be based solely on
seniority.
The Agreement's effect on layoffs is materially different from the
affirmative-action promotion approved in Johnson. First, layoffs entail loss of one's job,
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salary and eligibility for future advancement. Cf Johnson, 480 U.S. at 638 ("[W]hile petitioner ... was denied a promotion, he retained his employment ..., at the same salary and with the same seniority, and remained eligible for other promotions."). Second, while permanent employees have no entitlement to any particular transfer or TCA, they do, under New York law, have a legitimate expectation that layoffs will be based on seniority; altering this system to account for race, national origin or gender disrupts that expectation. Cf id. ("[D]enial of the promotion unsettled no legitimate, firmly rooted expectation on the part of petitioner."). Finally, layoffs would have the effect of maintaining, rather than attaining, a balanced workforce. Cf id. at 618 ("There is ample assurance that the Agency does not seek to use its Plan to 'maintain' a permanent racial and sexual balance.").
As noted, there were seven actual victims of the exams, and they are entitled to the layoff protection afforded by the award of permanent-employee status and retroactive seniority. However, there are not uncontroverted facts before the Court to determine if there are others; accordingly, a hearing is required. See, e.g., October 6, 2005 Oral Argument Tr. at 32 ("MS. MARTIN: I don't believe there needs to be any showing that each of the beneficiaries were individual victims of discrimination in order for these awards to be approved. However, if your Honor were to disagree with that legal conclusion, we would seek a hearing so that we can put forward evidence of clients' individual victim claims."); id. at 18 ("MS. COTE: If the court rules retroactive seniority can only be given to identifiable victims, then you may have to have an
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evidentiary hearing on whether particular individual beneficiaries were also v i c t i m s . " ) . 46
Fourteenth Amendment The Court's analysis does not end at Title VII because it still must determine whether the grant of retroactive seniority, which passes muster under Title VII in all respects for all the beneficiaries within the protected class, other than in respect to preferential seniority accorded to non-victims for layoffs, violates the Fourteenth Amendment. "Although the obligations of a public employer under Title VII are similar to its obligations under the Federal Constitution, they are not the same," Edwards v. City ofHouston, 37 F.3d 1097, 1110 (5th Cir. 1994); therefore, "where the issue is properly raised, public employers must justify the adoption and implementation of a voluntary affirmative action plan under the Equal Protection Clause." Johnson, 480 U.S. at 620 n.2. Since, unlike Title VII, the Fourteenth Amendment requires the application of different standards for race and gender classifications, they must separately be considered. 47
46The Court will not resolve at this time which party bears the burden of proving which beneficiaries were or were not actual victims of discrimination, and will invite the parties to address that issue prior to the hearing.
47For purposes of the Fourteenth Amendment, as under Title VII, "[i]t is undisputed ... that principles of analysis applicable to race-based affirmative action programs are the same as those applicable to national-origin-based affirmative action programs." Jana-Rock Canst., Inc. v. New York State Dep't ofEcon. Development, 438 F.3d 195, 200 n.1 (2d Cir. 2006). Thus, the Court's analysis of the Board's race-based relief applies equally to relief based on national origin.
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A. Race-Based Classifications As Wygant makes clear, affirmative-action plans by state actors based on
racial considerations are subject to strict-scrutiny analysis under the Fourteenth Amendment, requiring the state actor to establish (1) that there was a compelling interest for adopting the plan, and (2) that the plan was narrowly tailored to meet that interest. See Wygant, 476 U.S. 267 at 274. Nonetheless, "there may be instances in which a public employer, consistent with both the Fourteenth Amendment as interpreted in Wygant and§ 703 as interpreted in Weber, could voluntarily agree to take race-conscious measures in pursuance of a legitimate remedial purpose." Local No. 93, 478 U.S. at 518 n.8. 1. Compelling Interest For Race-Based Relief
In Barhold v. Rodriguez, 863 F.2d 233 (2d Cir. 1988), the Second Circuit embraced the concurring opinion of Justice O'Connor in Wygant as to the showing that a public employer must make, in the face of a Fourteenth Amendment challenge, to support its compelling reason for approving an affirmative-action plan: "[I]t must have a firm basis for believing that remedial action is required." Id. at 236 (citation omitted
and emphasis added). Subsequently, in City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989), the Supreme Court adopted the plurality opinion in Wygant that there must be a "strong basis in evidence for its conclusion that remedial action was necessary[,]" and equated that to evidence "approaching a prima facie case of a constitutional or statutory violation ...." Id. at 500 (emphasis added); accord Boston Police Superior Officers Fed'n v. City of Boston, 147 F.3d 13, 20 (1st Cir. 1998) ("The 'strong basis' may consist of either a
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contemporaneous or antecedent finding of past discrimination by a court or other competent body, or evidence approaching a prima facie case of a constitutional or statutory violation." (citations and internal quotation marks omitted)).48
Wygant and Croson represent a more fundamental divide than the nuanced differences between the evidentiary standards for assessing disparities under Title VII and the Fourteenth Amendment in the context of affirmative-action plans. Whereas causation is not implicated under Title VII since the employer need not point to its own past discrimination, see Johnson, 480 U.S. at 630, it is the touchstone of constitutional analysis because "the Equal Protection Clause require[s] 'some showing of prior discrimination by the governmental unit involved."' Croson, 488 U.S. at 492 (quoting Wygant, 476 U.S. at 274 (plurality opinion)) (emphasis added). Thus, in Croson, although there was a strong basis in evidence establishing gross racial disparities in the municipality's awards of construction contracts, there was no showing of prior governmental discrimination.
In the present case, the government itself created the tests that were proven, by the requisite strong basis in evidence, to be discriminatory; thus, the Board's efforts to remedy its own discrimination passes muster under Constitutional analysis. This is not the case, however, in regard to the recruiting claim. There is no question that the statistical disparities established that a disproportionate number of whites took the
48There is obviously little, if any, conceptual difference between "firm basis" and "strong basis," and, in light of Croson, the Second Circuit now employs the "strong basis" language. See Jana-Rock Constr., 438 F.3d at 213 ("We express no view as to whether [] anecdotal accounts, standing alone, could satisfy Croson's demands for a 'strong basis in evidence' that would justify the inclusion of a particular class in an affirmative action program.").
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exams, but there is absolutely no evidence that these disparities were occasioned by the Board's own discrimination. Apart from concluding that the disparities were not the result of chance, Dr. Ashenfelter offered no opinion as to their cause. Moreover, the only evidence regarding the Board's recruiting practices reflects an extensive effort by the Board to widely publicize the exams to a variety of diverse sources; the case might be different if there were an evidentiary showing that notification of the exams was calculated to be given to whites. In sum, even though there is a firm basis for concluding that there was a significant disparity between white test-takers and minority test-takers, this alone does not translate to a showing that this disparity resulted from the Board's recruiting practices. To hold otherwise would be to engage in 11sheer speculation" and credit 11an amorphous claim that there has been past discrimination." Croson, 488 U.S. at 499.
According to the United States' relief chart, seven blacks, four Hispanics and one Asian were awarded benefits based on the recruiting claim. If so, these benefits cannot survive strict scrutiny.
In respect to the award of retroactive seniority under the testing claims to the 27 blacks and Hispanics within the protected class for purposes of school transfers and TCAs- which withstands strict scrutiny (other than in respect to Exam 8206)- the Brennan intervenors question whether a compelling interest can ever be satisfied by proof of adverse impact; they argue that state actors may take race and national origin into account only to remedy discrimination arising from intentional disparate treatment.
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The plan at issue in Barhold was designed to remedy such intentional discrimination. See 863 F.2d at 237 ("These [alleged discriminatory] practices included the placing of Black officers in predominantly Black, high crime offices and the limiting of women officers' caseloads to women parolees."). The Second Circuit remanded because "the statistics presented [were] insufficient to provide a firm basis for believing that the [employer had] engaged in [such] discriminatory practices," id.; the court was not called upon to decide whether a facially race-neutral practice that had a disparate impact could justify a race-conscious remedy.
In other cases, however, the Second Circuit and other circuit courts have assumed that an affirmative-action plan designed to rectify discrimination that springs from proof of a disparate impact passes constitutional muster. See, e.g., Paganucci v. City of New York, 785 F. Supp. 467, 477 (S.D.N.Y. 1992) (holding that "the adverse impact'' of an examination on minority candidates for promotion justified settlement agreement's race-conscious remedy), affd, 993 F.2d 310, 312 (2d Cir. 1993) (affirming "for substantially the reasons set forth" in district court's opinion); Edwards, 37 F.3d at 1118 ("Clearly, the district court had ample evidence from which to conclude that the plaintiffs have proven disparate impact and that the City of Houston had justifiably concluded that it would be difficult to defend the job relatedness of the questions on the promotional exams."), rev'd on other grounds, 78 F.3d 983 (5th Cir. 1996) (en bane); Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1566 (11th Cir. 1994) (holding that the state-actor defendants had a "'strong basis in evidence' for concluding that race-based relief was needed to correct discrimination in the police and fire departments" because the hiring
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practices had an "adverse impact'' on minorities); Stuart v. Roache, 951 F.2d 446, 449-52 (1st Cir. 1991) (holding that statistical evidence demonstrating a "disparate impact'' constituted a "'strong' or 'firm' basis in evidence of prior discrimination").
The Brennan intervenors challenge this assumption, relying on the holding of Washington v. Davis, 426 U.S. 229 (1975), and Judge Easterbrook's dicta in Biondo v. City of Chicago, 382 F.3d 680 (7th Cir. 2004).
In Washington, the Supreme Court made clear that a disparate impact for purposes of Title VII liability does not equate to a constitutional violation under the Fourteenth Amendment. See 426 U.S. at 239 ("We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.") Washington, however, did not consider whether an admittedly compelling interest to rectify the vestiges of past discrimination by public employers could be established by proof of adverse impact, as opposed to proof of intentional discrimination.
In Biondo, however, Judge Easterbrook, noting that "compliance with federal laws cannot automatically be a compelling interest," 382 F.3d at 684, questioned whether, in light of Washington, remedying an adverse impact could ever serve a compelling governmental interest. Biondo involved the Chicago Fire Department's policy of awarding promotions in rank-order sequence based on an applicant's performance on a written examination. After the city concluded (1) that, under the EEOC's "four-fifths" regulation, see 27 C.P.R.§ 1607.4(D), discussed supra, the exam had a disparate impact on minorities, and (2) that there was no legitimate business
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justification for awarding promotions in rank-order sequence, it created separate lists for minority and non-minority applicants, and awarded positions proportionally from the two lists. Thereafter, non-minority applicants claimed that this affirmative-action plan violated the Fourteenth Amendment because it was designed to remedy only a disparate impact. In response, the city did not argue that 29 C.P.R. § 1607.4(D) carried out a compelling interest; rather, it argued that it had a compelling interest in complying with the regulation.49
The Seventh Circuit upheld a jury finding that there was an insufficient factual basis for implementing the affirmative-action plan, thereby obviating the need to address the broader disparate-impact issue. In dicta, however, Judge Easterbrook observed:
[G]iven the holding of Washington v. Davis ... that disparate impact in hiring or promotion by a public employer does not violate the equal protection clause, it is hard to see how ... an argument that [29 C.F.R. 1607.4 carries out any compelling governmental interest] could be constructed. If avoiding disparate impact were a compelling governmental interest, then racial quotas in public employment would be the norm, and as a practical matter Washington v. Davis would be undone. I d. Judge Easterbrook's concern, therefore, assumed that remedying discrimination is a sufficiently compelling interest only if the discrimination amounts to
49The city also "did not argue that either past discrimination or a quest for diversity" served as a compelling interest to "support its approach." Biondo, 382 F.3d at 683.
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a violation of the Fourteenth Amendment's prohibition on intentional discrimination. In the Court's opinion, this assumption is unfounded.
As discussed, the Supreme Court has described a governmental unit's interest in remedying past discrimination as sufficiently compelling to warrant racebased affirmative action only when the governmental unit is responsible for the discrimination. See Wygant, 476 U.S. at 278 (plurality opinion) ("[A]ny statistical disparities were the result of general societal discrimination, not of prior discrimination
by the Board."); id. at 288 (O'Connor, J., concurring) ("I agree with the plurality that a
governmental agency's interest in remedying 'societal' discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster under strict scrutiny."). The Court's analysis in Wygant did not distinguish between governmental discrimination due to disparate treatment and governmental discrimination due to facially neutral practices that have a disparate impact. Indeed, there is a powerful conceptual reason not to make such a distinction. A public employer whose hiring practices impose a disparate impact in violation of Title VII is no less liable simply because the violation was not of constitutional magnitude; its interest in remedying the violation is exactly the same. The Supreme Court recognized as much in Croson when, in passing, it described the "strong basis in evidence" standard as evidence "approaching a prima facie case of a constitutional or statutory violation." 488 U.S. at 500 (emphasis added).
To forbid public employers from voluntarily complying with their obligations under Title VII is effectively to require them to challenge those obligations
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as inconsistent with their duties under the Fourteenth Amendment; such a result is fundamentally inconsistent with the goal of encouraging voluntary compliance and would, as Justice O'Connor noted in another context, "produce the anomalous result that what private employers may voluntarily do to correct apparent violations of Title VII, public employers are constitutionally forbidden to do to correct their statutory and
constitutional transgressions." Wygant, 476 U.S. at 291 (O'Connor, J., concurring)
(citation omitted). 2. Narrowly Tailored
Since there was an adequate evidentiary basis for the Board to conclude that the exams had a disparate impact on blacks and, except with respect to Exam No. 8206, on Hispanics as well; and since, in the Court's view, remedying a disparateimpact Title VII violation occasioned by a state actor's own discriminatory conduct is a compelling interest to warrant a race-conscious remedy, the ultimate issue is whether the award of retroactive seniority for purposes of school transfers and TCAs to nonvictim blacks and non-victim Hispanics on the testing claims was narrowly tailored. Although the Court has held that the grant of retroactive seniority to such beneficiaries for the purpose of layoffs violates Title VII because it unnecessarily trammels the rights of non-minorities, it will also address the issue under Fourteenth Amendment analysis
to obviate the need for remand should the circuit court disagree. Cf, e.g., Barhold, 863
F.2d at 238 (limiting scope of remand to the compelling-interest prong of strict scrutiny by affirming district court's determination that affirmative-action plan was narrowly tailored).
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Although the circuit court in Barhold remanded due to insufficient evidence that the affirmative-action plan at issue served a compelling interest, it agreed with the district court that the plan was narrowly tailored; in reaching that conclusion, it applied the criteria set forth in United States v. Paradise, 480 U.S. 149 (1987). Under Paradise, "to determine if a plan is narrowly tailored, [a court] must look to 'the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties."' Barhold, 863 F.2d at 238 (quoting Paradise, 480 U.S. at 171).
Application of the Paradise factors to non-victims of discrimination does not alter the results arrived at under the Title VII standard.5°
a. Transfers and TCAs
In Barhold, the Second Circuit analyzed whether an affirmative-action plan designed by the New York Division of Parole to remedy a perceived imbalance in the number of females and minorities in parole officer positions outside of New York City was narrowly tailored. See 863 F.2d 233. Prior to the implementation of the plan, the Division awarded transfers based on seniority, which favored males and nonminorities. Under the plan, the Division awarded half of its transfers based on a
50No one disputes that, as in Title VII, relief that makes whole actual victims of
discrimination is warranted. See Croson, 488 U.S. at 526 (Scalia, J., concurring) ("[O]f
course, a State may undo the effects of past discrimination in the sense of giving the identified victim of state discrimination that which it wrongfully denied him - for example, giving to a previously rejected black applicant the job that, by reason of discrimination, had been awarded to a white applicant, even if this means terminating the latter's employment. That is worlds apart form the system here, in which those to be disadvantaged are identified solely by race.").
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combination of seniority, race and gender, and the remaining half based solely on
seniority. The circuit court held that it was narrowly tailored:
The Division has attempted to integrate its workforce through hiring and minority recruitment efforts, but this has not increased the numbers of women and minorities in offices outside New York City. The plan itself is designed as a temporary measure; in fact, the Division modified it after only four months because of its effectiveness. The plan as modified is flexible, with affirmative action being only one of several factors that may be taken into consideration in allowing reassignments. Furthermore, affirmative action can be considered in only half of all reassignments: fully one-half of the reassignments must be made on the basis of seniority.
The plan does not set quotas for each region, but only goals used as a "benchmark" for assessing progress. Because the Division draws its employees from a statewide pool, it was proper for it to use statewide statistics to assess its needs. Finally, the impact on third parties has not been excessive and the interests of White males have not been unnecessarily trammeled. The plan was implemented as twenty-nine new positions were created; hence, there was still a considerable number of reassignment possibilities for White males. In fact, under the first year of the plan and its modification, over seventy percent of the reassignments were of White males.
Considering these factors and the plan's lack of effect in job opportunities such as hiring, layoffs or promotions, the district court's conclusion that the plan is sufficiently narrowly tailored to meet the compelling state interest will not be upset.
Id. at 238 (internal citations omitted).
As Barhold demonstrates, the factors used to determine whether an
affirmative-action plan is narrowly tailored under the Fourteenth Amendment are
closely related to those used to determine whether the plan unnecessarily trammels the
rights of third parties under Title VII. Indeed, the two tests are cut from the same
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conceptual cloth in that they both require consideration of a plan's effect on innocent third parties. See, e.g., Paradise, 480 U.S. at 171 (listing "the impact of the relief on the rights of third parties" as one factor to be considered under "narrowly tailored" prong of strict scrutiny).
The award of retroactive seniority to remedy the adverse impact of the exams is, for the purposes of transfers and TCAs, carefully circumscribed in its scope and effect, making a one-time adjustment for those entitled to such relief under the testing claims without establishing quotas or creating an absolute bar to the nonminorities' abilities to obtain those perquisites. Just as that feature contributed to the Court's conclusion that the award did not, for purposes of transfers and TCAs, unnecessarily trammel the rights of third parties, it compels the conclusion that the award is narrowly tailored. b. Layoffs
In Wygant, the Supreme Court invalidated a CBA provision between a board of education and a teachers' union; the CBA provided that "if it became necessary to lay off teachers, those with the most seniority would be retained, except that at no time would there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff." 476 U.S. at 267. Three justices concluded that "the Board's selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause." Wygant, 476 U.S. at 284. A fourth justice, Justice White, concurring in the judgment, more bluntly stated that layoffs on the basis of race could never be tolerated
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unless necessary to protect a victim of prior discrimination. See id. at 295 (White, J., concurring) ("Whatever the legitimacy of hiring goals or quotas may be, the discharge of white teachers to make room for blacks, none of whom has been shown to be a victim of any racial discrimination, is quite a different matter. I cannot believe that in order to integrate a work force, it would be permissible to discharge whites and hire blacks until the latter comprised a suitable percentage of the work force. None of our cases suggest that this would be permissible under the Equal Protection Clause."). The fifth justice comprising the majority, Justice O'Connor, concurred on the narrowest grounds, concluding that "[b]ecause the layoff provision ... acts to maintain levels of minority hiring that have no relation to remedying employment discrimination, it cannot be adjudged 'narrowly tailored' to effectuate its asserted remedial purpose." Id. at 294 (O'Connor, J., concurring). However, she declined "to resolve the troubling questions whether any layoff provision could survive strict scrutiny or whether this particular layoff provision could, when considered without reference to the hiring goal it was intended to further, pass the onerous 'narrowly tailored' requirement." Id. at 293-94 (O'Connor, J., concurring). As a result of Justice O'Connor's reservation on the question of whether individuals may ever be subject to layoffs on account of their race, Wygant lacked a majority for the proposition that a state actor may never use race as a factor in determining layoffs unless necessary to protect victims of discrimination.
In Crumpton v. Bridgeport Education Association, 993 F.2d 1023 (2d Cir. 1993), the Second Circuit reviewed under the Fourteenth Amendment the propriety of a consent decree that settled a school-desegregation lawsuit by providing that layoffs
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would be administered with an absolute preference to the retention of minority
teachers. See id. at 1025. The circuit court pointed out that parties "may have more
latitude in remedying violations of the Constitution than in remedying violations of
Title VII," id. at 1030; nonetheless, the court found that the layoff provision was not
narrowly tailored, noting that it "[went] far beyond the proportional plan invalidated in
Wygant." Id. at 1031. It explained: In this case, white teachers may have expected the layoffs to be proportional given their collective bargaining agreement, which speaks in terms of preserving the gains made. Consequently, if a proportional layoff scheme had been implemented here, it could have passed muster under Wygant. Indeed a proportional layoff scheme may be necessary in order to safeguard the progress made in Bridgeport toward desegregation. No court, however, has held that a layoff procedure giving absolute preference to minorities is narrowly tailored to achieve the goal of rectifying past injustices of any form.
Id. (internal citations omitted).
Again, the reasons courts reject race-conscious layoffs as not narrowly
tailored under the Fourteenth Amendment are closely related to the reasons they reject
them under Title VII: such remedies impose a heavy burden on innocent third parties
and, more than other potential remedies, upset their settled expectations. See Taxman,
91 F.3d at 1564-65 (citing Wygant for the proposition that the "burden [of layoffs] is too
intrusive" to be a proper remedy under Title VII). Those concerns are, as the Court
noted in its Title VII analysis, certainly present here. And since there is no suggestion
that the Board's challenged employment practices violated the Constitution, Crumpton's
suggestion that an employer may have "more latitude" in remedying such violations
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does not apply. Thus, the Agreement's grant of seniority for purposes of layoffs is not narrowly tailored. B. Sex-Based Classifications
Prior to Croson, it was clear that gender-based affirmative-action plans were subject to intermediate scrutiny, which required that such plans "serve important governmental objectives and . . . be substantially related to achievement of those objectives." Califano v. Webster, 430 U.S. 313, 317 (1977) (quoting Craig v. Boren, 429 U.S. 190, 197 (1976)). Subsequent to Croson, the Sixth Circuit began subjecting gender-based affirmative-action plans to strict scrutiny. See Brunet v. City of Columbus, 1 F.3d 390, 404 ("Under the [post-Croson] precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause." (citing Conlin v. Blanchard, 890 F.2d 811 (6th Cir. 1989); see also Long v. City of Saginaw, 911 F.2d 1192 (6th Cir. 1990). The other circuits to have considered the issue have concluded that, notwithstanding Croson, gender-based affirmative-action plans remain subject to intermediate scrutiny. See Ensley Branch, 31 F.3d at 1580 ("Intermediate scrutiny remains the applicable constitutional standard in gender discrimination cases."); Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1001 (3d Cir. 1993) ("We agree with the district court's choice of intermediate scrutiny to review the Ordinance's gender preference."); Coral Constr. Co. v. King County, 941 F.2d 910, 932 (9th Cir. 1991) ("[W]e shall employ intermediate scrutiny to review King County's [Women-Owned Business Enterprise] program."); cf Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 422 (7th Cir. 1991) (assuming that Croson applied to gender-based affirmative
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action because state failed to argue that it did not, but noting that "Croson is about favoritism toward racial and ethnic groups, not about favoritism toward women"). The Second Circuit has recognized this circuit split, but has yet to weigh in on it. See Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 62 (2d Cir. 1992) ("Croson may not apply to women-owned business enterprise programs, see Milwaukee County Pavers, 922 F.2d at 422, and the appropriate standard of review concerning gender-based set-asides remains unclear.").51
The difference between strict and intermediate scrutiny has a very real impact in this case. According to the United States' Relief Chart, 19 women received relief under the recruiting claim. If strict scrutiny applies, then that relief is, for the reasons discussed in connection with race-based relief under the recruiting claim, unconstitutional; however, in the Court's opinion, the relief survives the more permissive standard of intermediate scrutiny.
As the Seventh Circuit recognized in Milwaukee County Pavers, the Supreme Court does not consider gender discrimination "to be as invidious - as harmful and as difficult to justify - " as race discrimination. 922 F.2d at 422. The Court agrees with the Eleventh Circuit that "[n]othing in Croson suggests that the Supreme
51The Court recognizes that the plan at issue in Barhold was both race- and gender-conscious and that the Second Circuit nevertheless subjected the plan to strict scrutiny. Since, however, the court concluded that the plan survived the rigorous "narrowly tailored" standard, see 863 F.2d at 238, it did not have to address the
possibility that a lesser standard might apply to affirmative action for women. Cf
Ensley Branch, 31 F.3d at 1580 (distinguishing prior case applying strict scrutiny to gender-based affirmative-action plan because "[w]e did not need to do [consider whether a less-exacting standard applied], given our holding that the plan satisfied even the searching Croson test'').
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Court intended sub silentio to strike down its own decisions applying intermediate scrutiny to gender classifications," Ensley Branch, 31 F.3d at 1579, and its observation that the Sixth Circuit reached a contrary conclusion "with little or no discussion." Id. The Court concludes, therefore, that intermediate scrutiny continues to apply to genderbased affirmative-action plans.52 1. Important Governmental Interest
As with classifications subject to strict scrutiny, remedying past discrimination "is unquestionably a sufficiently 'important' [interest] to sustain a gender-conscious affirmative action program[,]" Eng'r Contractors Ass'n of South Fla. Inc. v. Metro. Dade County, 122 F.3d 895, 908-09 (11th Cir. 1997); however, "[u]nlike the strict standard of review applied to race-conscious programs, intermediate scrutiny does not require any showing of governmental involvement, active or passive, in the discrimination it seeks to remedy." Coral Constr. Co., 941 F.2d at 932; see also Ensley Branch, 31 F.3d at 1580 ("One of the distinguishing features of intermediate scrutiny is that, unlike strict scrutiny, the government interest prong of the inquiry can be satisfied by a showing of societal discrimination in the relevant economic sector.").
Since there were at least six standard deviations between the actual and expected number of female applicants for each of the challenged exams, see Tables, supra pp. 14-15, there is a strong evidentiary basis that women have, to a significant extent, been shut out of permanent custodial positions. While, as explained, there is
52As the Eleventh Circuit has recognized, "[w]hile it may seem odd that it is now easier for uphold affirmative action programs for women than for racial minorities, Supreme Court precedent compels that result." Ensley Branch, 31 F.3d at 1579.
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insufficient evidence connecting the disparity to any action by the Board, such a connection is not necessary to satisfy the "important governmental interest'' prong. 2. Substantially Related
Since the award of retroactive seniority is, for purposes of transfers and TCAs, narrowly tailored to the goal of remedying prior race and ethnic discrimination, it necessarily satisfies the lesser standard of being "substantially related" to the goal of remedying past gender discrimination. The converse, however, is not necessarily true; i.e., that the grant of seniority for purposes of layoffs fails the narrowly-tailored prong of strict scrutiny does not necessarily mean that it would ipso facto fail the substantiallyrelated requirement of intermediate scrutiny.53
"The purpose of requiring [a substantial] relationship is to assure that the validity of a [gender-conscious] classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982). In the affirmative-action context "a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened," but "only if members of the gender benefitted by the classification actually suffer[ed] a disadvantage related to the classification." Id. at 728.
Research has revealed no case either accepting or rejecting preferential layoff protection as "substantially related" to the goal of remedying gender
530nce again, the Court addresses the Fourteenth Amendment to obviate any need for remand.
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discrimination. Here, however, that remedy satisfies the standards articulated in Hogan. The statistical evidence demonstrates that women, as a class, were at a disadvantage when it came to learning about the exams that could lead to permanent custodial positions. And increased layoff protection, far from being based on gender stereotyping, helps women as a class move toward the job security they would have enjoyed but for that disadvantage. In the Court's view, therefore, preferential seniority for female beneficiaries for purposes of layoffs, even though they be non-victims, satisfies the substantially-related prong of intermediate scrutiny, although it does not satisfy the more restrictive unnecessarily trammeling standard under Title VII.
Remaining Matters A. Propriety of Entry of a Consent Judgment
The Court cannot enter those parts of Paragraphs 13-16 that have survived the Brennan intervenors' challenges as a consent judgment. In the first place, the Agreement was executed on February 11, 1999, and under Paragraph 11 was to "remain in force for a period of four years." Also, the Agreement provided in Paragraph 47 that although the Court shall retain jurisdiction to ensure compliance, its jurisdiction "shall automatically terminate at the expiration of [the Agreement] as set forth in paragraph 11." Magistrate Judge Levy, with the consent of all parties, entered all of its provisions save the challenged Paragraphs 13-16 as a consent judgment on February 28, 2002 - well within that four year period- and the Court had jurisdiction to enforce it until February 11, 2003. The same enforcement limitation would have attached to Paragraphs 13-16 if they had also been reduced to judgment prior to the expiration period. See EEOC v.
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Local 40, Int'l Assn. Of Bridge, Structural & Ornamental Iron Workers, 76 F.3d 76, 80 (2d Cir. 1996) (holding that court is without power to enforce decree after its underlying expiration date). In short, even if all of the provisions of Paragraphs 13-16 were deemed valid, the Court would nonetheless decline to reduce them to a judgment which it would be powerless to enforce.
Regardless, without the Brennan intervenors' consent, the challenged paragraphs could not be entered as a consent decree even in the absence of the Agreement's termination provision since, as the circuit court noted in remanding, "[s]eniority is a contractual right[,]" New York City Bd. ofEduc., 260 F.3d at 131 (citation omitted); consequently, the Brennan intervenors' consent would be required as a precondition to the Court lending its imprimatur to an Agreement affecting such a legally protected interest. Compare United States v. City ofMiami, 664 F.2d 435 (5th Cir. 1981) (en bane) (consent decree that permitted promotions to be made without following the city's civil-service testing procedure could not be entered over the objection of the police officer's union to the extent that the decree altered the city ordinance governing promotion procedures incorporated into the union's collective bargaining agreement with the city), and United States v. City of Hialeah, 140 F.3d 968, 981 (11th Cir. 1998) ("[A] proposed consent decree is due to be rejected if it would affect the legal rights of the objecting parties."), with Kirkland v. New York State Dep't of Carr. Servs., 11 F.2d 1117, 1127-28 (2d Cir. 1983) (holding that non-minority employees would not be permitted to intervene and block entry of consent decree in Title VII case since they"d[id] not have a legally protected interest in the mere expectation of appointments which could only be
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made pursuant to presumptively discriminatory employment practices"), Waisome v. Port Auth. ofN.Y. & N.J., 999 F.2d 711, 715 (2d Cir. 1993) (rejecting union's objection to consent decree where it would not alter any contractual right held by union), and Local No. 93, 478 U.S. at 530 (although permitted to intervene, union could not block consent decree where decree did not impose any obligations on union and union "failed to raise any substantive claims").54 B. Class Certification
The Brennan intervenors in Action I and the plaintiffs in Action II (collectively, the "Brennan parties") seek class certification with respect to their claims for injunctive and declaratory relief. None of the other parties in either action has submitted responsive papers. In light of the Court's holding that the Brennan parties' are entitled to the restoration of their seniority rights as to layoffs, and the injunctive relief that they will be entitled to once the Court determines which of the beneficiaries are non-victims, the Court must now decide whether to certify a class.
Fed. R. Civ. P. 23(b)(2) authorizes class-action status where the opposing party "has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." The Brennan parties' claims for injunctive and
54Those parties supporting the entry of the full Agreement as a consent decree argue that under 42 U.S.C. § 2000e-2(n)(l) the entry of an expired decree would nonetheless "provide[] significant protection for employers from challenges to the lawfulness of employment actions taken to implement a consent judgment." Arroyo Intervenors' Mem. of Law Supporting Entry of the Challenged Provisions of the Agreement at 20. Since the Agreement has been implemented, and this litigation will determine the lawfulness of its implementation, the final judgment of the Court will realistically provide sufficient protection against any future challenges.
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declaratory relief fit squarely within that definition to the extent that their rights have been violated.
To warrant class-action status, however, the proposed class must also meet the prerequisites of Rule 23(a)(1-4), namely numerosity, commonality, typicality, and adequacy of representation.55 The Court is satisfied that the Brennan parties have met these requirements insofar as they are entitled to injunctive relief to preserve their seniority rights in respect to layoffs.
The first requirement, numerosity, requires that a finding that the class is so numerous that joinder of all class members is impracticable. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Citing a leading treatise, the Second Circuit has noted that "the difficulty in joining as few as 40 class members should raise a presumption that joinder is impracticable." Id. at 936 (citing 1 Herbert B. Newberg, Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels § 3.05 (2d ed. 1985)). There are clearly more than 40 non-minorities whose layoff-protection rights have been impacted: Since the grants of retroactive seniority under the testing claims were based on the median hire date of candidates hired from the eligibility lists resulting from the exams, they necessarily affected the layoff protection of at least half of those on each list;
55Fed. R. Civ. P. 23(a) provides: Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. 85

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thus, the beneficiaries who received relief under the testing claims displaced at least 77 of the 154 candidates hired from the eligibility list for Exam No. 5040, at least 23 of the 46 candidates hired from the eligibility list for Exam No. 8206, and at least 122 of the 244 candidates hired from the eligibility list for Exam No. 1074. Furthermore, it is safe to assume that a significant number of the 300 individuals who submitted written objections to Magistrate Judge Levy were custodial employees whose layoff-protection rights were adversely affected by the Agreement.
The Brennan parties also satisfy Rule 23(a)(2)'s commonality and Rule 23(a)(3)'s typicality requirements. With respect to the commonality requirement, they are victims of a common wrong- that, as a matter of law, their layoff-protection rights have been compromised. See Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) ("The commonality requirement is met if plaintiffs' grievances share a common question of law or fact."). This applies with equal force with respect to the typicality requirement. See id. at 376 ("[The typicality requirement] is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." (citations and internal quotation marks omitted)).
The Brennan parties have also demonstrated that they will adequately represent the class - Rule 23(a)'s final requirement. In order to satisfy this requirement, the Brennan parties' attorney must be "qualified, experienced, and generally able to conduct the proposed litigation," and they must not have interests antagonistic to those of the remainder of the class. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.
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1968). The Court is satisfied, given the unchallenged information in the Statement of Michael E. Rosman regarding his past experience, that counsel is sufficiently experienced in class actions and in discrimination law to fairly and adequately represent the proposed class. Furthermore, the Brennan parties do not have interests that are at odds with the putative class; the injunctive relief they seek will be the same relief to which the entire class will be entitled.
Thus, the Court will certify a class comprising all custodial employees whose layoff-protection rights have been adversely affected by the grant of seniority benefits to beneficiaries who are non-victims of discrimination.56
Because the Court has certified the class under Rule 23(b)(2), it need not provide notice to the class members or afford them an opportunity to opt out. See Fed. R. Civ. P. 23(c)(2)(A) advisory committee's note ("The court may decide not to direct notice after balancing the risk that notice costs may deter the pursuit of class relief against the benefits of notice."); Larsen v. JBC Legal Group, P.C., 235 F.R.D. 191, 196 (E.D.N.Y. 2006) ("Rule 23(b)(2) does not require notice or permit class members the opportunity to opt-out." (citing Fed. R. Civ. P. 23(c)(2)(A))). As a practical matter, notice of the Court's decision will undoubtedly be given to all the Board's custodial employees by their union leaders, who are well-schooled in protecting their rights.
56ln light of the Court's holding that the Brennan parties are also entitled to the restoration of seniority rights disrupted by the relief granted to blacks, Hispanics and Asians under the recruiting claim, it might also be appropriate to certify a class comprising employees whose seniority rights were adversely affected by such relief; however, the Court declines to certify such a class based on the present record, which does not reflect that the number of those so affected is sufficient to satisfy Rule 23(a)'s numerosity requirement.
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RECAPITULATION A. Testing Claims
The testing claims affected only blacks and Hispanics. If the United States' Relief Chart is proven to be accurate, 28 were afforded full retroactive seniority. The rights of one, Luis Torres, cannot be determined until the Court resolves the factual dispute as to whether Exam No. 8206 had a disparate impact on Hispanics. As for the remaining 27, seven are actual victims of discrimination and they are therefore entitled to full retroactive seniority for all purposes; as for the other 20, if it is factually established that they were not victims of discrimination, they would be entitled to preferential seniority for school transfers and temporary care assignments, but not for layoffs. B. Recruiting Claim
According to the United States' Relief Chart, 31 blacks, Hispanics, Asians and women received full, unqualified retroactive seniority. Of that group, 12 were men; 19 were women. One of the men, Dellaporte, is neither black nor Hispanic; hence he is not entitled to any relief under any circumstances. As for the remaining 11 men, none is entitled to any relief, except for those who can factually establish that they were actually victims of discrimination. As for the women, all of them are entitled to preferential seniority for school transfers and temporary care assignments; however, unless they can prove that they were actual victims of discrimination, they would not be entitled to preferential seniority for layoffs.57
57The Court declines to rule out the possibility that some beneficiaries were actual victims of recruiting discrimination, but is dubious that it can be proven given
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C. Reflections The Court has studied innumerable Supreme Court, circuit court and
district court decisions relevant to the issues raised in this litigation; none has approached the complexities of this case, representing a veritable tour de force of virtually every aspect of affirmative-action law in the employment arena. This legal juggernaut emanated from the need to adjudicate multiple disparate-impact claims under both Title VII and the Fourteenth Amendment in respect to the effect preferential seniority had on three different seniority benefits - school transfers, temporary care assignments and layoffs - requiring the application of three different standards: the manifest imbalance/unnecessary trammeling standard applicable to all the beneficiaries under Title VII analysis, and the two separate standards applicable to race-based and gender-based relief under constitutional analysis; moreover, many of the issues subsumed by these analyses have yet to be passed upon by the Supreme Court or the Second Circuit.
Given the contentious history of this litigation and the importance of the issues raised, the parties undoubtedly will not rest with the district court's decision. Before an appeal can be taken to the Second Circuit, finality will have to be achieved; in light of the wide range of legal issues and the handful of simple factual issues that can readily be resolved, the Court will not be inclined to certify its decision for interlocutory review. The Court exhorts the parties to resolve these factual issues by stipulation since
the lack of evidence of a causal connection between the number of women and minority test-takers and the Board's recruiting practices.
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it is in the best interests of all parties, after ten years of litigation, to allow the Court to
expeditiously enter a final judgment.
CONCLUSIONS
1. The Board's motion to enter the Agreement as a consent judgment is
denied.
2. The Brennan parties' motion for class certification is granted to the
extent that the Court certifies a class comprising all custodial employees whose layoff-
protection rights have been adversely affected by the grant of seniority benefits to
beneficiaries who are non-victims of discrimination.
3. Regarding the intervenors' motions for partial summary judgment, the
Court declares as follows:
a. As for the testing claims, all beneficiaries who received relief, except Luis Torres, are entitled to the seniority benefits provided by the Agreement as to transfer rights and temporary care assignments; as for layoffs, however, the grant of seniority benefits to beneficiaries who are not victims of discrimination violates Title VII and the Fourteenth Amendment.
b. As for the recruiting claim, the grant of seniority benefits for any purpose to black, Hispanic and Asian males who were not victims of discrimination violates the Fourteenth Amendment. As for the women, they are entitled to the seniority benefits provided by the Agreement as to transfer rights and temporary care assignments; as for layoffs, however, the grant of seniority benefits to women who are not victims of discrimination violates Title VII.
c. Dellaporte is not a member of a protected class; therefore, he is not entitled to any relief.
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4. A hearing is required as to (a) which, if any, of the beneficiaries, in addition to Lloyd Bailey, Joseph Christie, Belfield Lashley, Gilbert Rivera, Peter Robertin, Felix Torres and Mayra Zephrini (Cintron), are actual victims of discrimination and received the relief to which they were entitled; (b) whether the results of Exam 8206 in respect to Luis Torres satisfy the evidentiary standards for establishing discrimination under Title VII and the Fourteenth Amendment; and (c) whether John Mitchell and Eric Schauer were denied transfers in favor of particular individuals who impermissibly received retroactivity seniority.
5. In the absence of a stipulation resolving the factual issues, the parties shall appear before the Court on October 11, 2006, at 5 p.m., to set a hearing date.
SO ORDERED.

September 11, 2006 Brooklyn, New York

FREDERIC BLOCK Senior United State District Judge

91

 
 Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 1 of 29

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------X UNITED STATES OF AMERICA,

ORIGINAL b-~f C;M

-against-

Plaintiff,

MEMORANDUM & ORDER

NEW YORK CITY BOARD OF EDUCATION; CITY OF NEW YORK; LILLIAM BARRIOS-PAOLI, PERSONNEL DIRECTOR, NEW YORK CITY DEPARTMENT OF PERSONNEL (in her official capacity); NEW YORK CITY DEPARTMENT OF PERSONNEL,
Defendants,

ACTION I No. 96-CV-0374 (FB) (RML)

and

JOHN BRENNAN; JAMES G. AHEARN; DENNIS MORTENSON and SCOTT SPRING,

Intervenors,

and

JANET CALDERO, CELIA I. CALDERON, MARTHA CHELLEMI, ANDREW CLEMENT, KRISTEN D'ALESSIO, LAURA DANIELE, CHARMAINE DIDONATO, DAWN L. ELLIS, MARCIA P. JARRETT, MARY KACHADOURIAN, KATHLEEN LUEBKERT, ADELE A. MCGREAL, MARIANNE MAOUSAKIS, SANDRA D. MORTON, MAUREEN QUINN, HARRY SANTANA, CARL D. SMITH, KIM TATUM, FRANK VALDEZ and IRENE WOLKIEWICZ,

Intervenors,

and

PEDRO ARROYO, JOSE CASADO, CELESTINO FERNANDEZ, KEVIN LAFAYE, STEVEN LOPEZ, ANIBAL MALDONADO, JAMES MARTINEZ, WILBERT MCGRAW, SILVIA ORTEGA DE GREEN

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 2 of 29

and NICOLAS PANTELIDES,

Intervenors.
-----------------------------------------------------------------------x -----------------------------------------------------------------------X JOHN BRENNAN; JAMES AHEARN; ERNIE TRICOMI; SCOTT SPRING; DENNIS MORTENSEN; JOHN MITCHELL and ERIC SCHAUER,

Plaintiffs,

-against-
JOHN ASHCROFT; RALPH BOYD; UNITED STATES DEPARTMENT OF JUSTICE; NEW YORK CITY BOARD OF EDUCATION; CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES and WILLIAM J. DIAMOND,

ACTION II No. 02-CV-0256 (FB) (RML)

Defendants -----------------------------------------------------------------------x

Appearances: For the Plaintiff: ESTHER GWEN TAMBURO, ESQ. United States Department of Justice Employment Litigation Section 950 Pennsylvania Ave., N.W. Washington, DC 20530

For the Intervenors: For Intervenor Brennan, et al.: MICHAEL E. ROSMAN, ESQ. Center for Individual Rights 1233 20th Street, N.W., Suite 300 Washington, DC 20036

For the Defendants: LAWRENCE J. PROFETA, ESQ. The City of New York Law Department 100 Church St. New York, NY 10007

For Intervenor Arroyo, et al.: MATTHEW B. CALANGELO, ESQ. NAACP Legal Defense Fund & Educational Fund, Inc. 99 Hudson St., 16th Floor New York, NY 10013

For Intervenor Caldera, et al.: EMILY J. MARTIN, ESQ. American Civil Liberties Union Women's Rights Project 125 Broad St., 18th Floor New York, NY 10004

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 3 of 29
BLOCK, Senior District Judge:
Familiarity with the Court's Memorandum and Order of September 11,
2006 ("September 11th M&O"), United States v. New York City Bd. of Educ., 448 F. Supp.
2d 397 (E.D.N.Y. 2006), is presumed; in the September 11th M&O, the Court (1) denied
the motion of the New York City Board of Education ("the Board") to enter its
settlement agreement ("the Agreement") with the United States of America as a consent
judgment; (2) certified a class "comprising all custodial employees whose layoff-
protection rights have been adversely affected by the grant of seniority benefits to
beneficiaries who are non-victims of discrimination"; and (3) made the following
declarations regarding the validity of the Agreement under Title VII and the Fourteenth
Amendment:
(a) As for the testing claims, all beneficiaries who received relief, except Luis Torres, are entitled to the seniority benefits provided by the Agreement as to transfer rights and temporary care assignments; as for layoffs, however, the grant of seniority benefits to beneficiaries who are not victims of discrimination violates Title VII and the Fourteenth Amendment.
(b) As for the recruiting claim, the grant of seniority benefits for any purpose to black, Hispanic and Asian males who were not victims of discrimination violates the Fourteenth Amendment. As for the women, they are entitled to the seniority benefits provided by the Agreement as to transfer rights and temporary care assignments; as for layoffs, however, the grant of seniority benefits to women who are not victims of discrimination violates Title VII.
(c) [Ciro] Dellaporte is not a member of a protected class; therefore, he is not entitled to any relief.
Id. at 447. In addition, the Court identified three issues requmng an evidentiary
3

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 4 of 29
hearing:
(a) which, if any, of the beneficiaries, in addition to Lloyd Bailey, Joseph Christie, Belfield Lashley, Gilbert Rivera, Peter Robertin, Felix Torres and Mayra Zephrini (Cintron), are actual victims of discrimination and received the relief to which they were entitled;
(b) whether the results of Exam 8206 in respect to Luis Torres satisfy the evidentiary standards for establishing discrimination under Title VII and the Fourteenth Amendment; and
(c) whether John Mitchell and Eric Schauer were denied transfers in favor of particular individuals who impermissibly received retroactive seniority.
Id. at 447-48.
On September 25, 2006, the Brennan Intervenors1 moved for
reconsideration, arguing (1) that - in addition to Luis Torres - Pedro Arroyo, Kevin
LaFaye and Fidel Seara are not entitled to any benefits under the Agreement if the
Court concludes that there was insufficient evidence that the 8206 Exam had a disparate
impact on Hispanics; and (2) that the certified class should be redefined. On September
26, 2006, the Caldera Intervenors2 moved for (1) reconsideration of the Court's
conclusion that the seven black and four Hispanic males designated as recruiting-claim
beneficiaries in the United States' Relief Chart were not entitled to the benefits they
1John Brennan, James G. Ahearn, Dennis Mortenson and Scott Spring. 'Janet Caldera, Celia I. Calderon, Martha Chellemi, Andrew Clement, Kristen D'Alessio, Laura Daniele, Charmaine Didonato, Dawn L. Ellis, Marcia P. Jarrett, Mary Kachadourian, Kathleen Luebkert, Adele A. McGreal, Marianne Maousakis, Sandra D. Morton, Maureen Quinn, Harry Santana, Carl D. Smith, Kim Tatum, Frank Valdez and Irene Wolkiewicz.
4

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 5 of 29
received under the Agreement, and (2) clarification that the Agreement's award of
permanent employment status has not been found unlawful. On November 21, 2006,
the Court held an evidentiary hearing on the issue of whether the 8206 Exam had a
disparate impact on Hispanics.'
The issues raised m the parties' post-decision motions and at the
November 21st hearing are now meet for disposition.
THE 8206 EXAM
As explained in the September 11th M&O, an employer seeking to justify
an affirmative-action plan in the face of a challenge under Title VII "need point only to a
conspicuous imbalance ... in traditionally segregated job categories," New York City Bd.
of Educ., 448 F. Supp. 2d at 424 (quoting Johnson v. Transp. Agency, Santa Clara County,
480 U.S. 616, 630 (1987)), and to survive a Fourteenth Amendment challenge, an
affirmative-action plan must be supported by a "strong basis in evidence," meaning
evidence "approaching a prima facie case of a constitutional or statutory violation,"id.
at 435 (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989)); a disparity
'Hearings on the other two fact issues identified in the September 11th M&O proved unnecessary. With respect to issue (a), regarding actual victims, the Arroyo Intervenors (Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Wilbert McGraw, Silvia Ortega de Green and Nicolas Pantelides) stated at an unreported status conference that they do not intend to offer proof of additional actual victims of testing discrimination; as for recruiting discrimination, there is, as explained infra pp. 24-25, insufficient evidence to warrant a hearing on actual victims. With respect to issue (c), regarding Mitchell and Schauer's claims that they were denied transfers, the parties agree that Mitchell lost a transfer to Pedro Arroyo and that Schauer lost a transfer to Kevin LaFaye, see Letter of Michael Rosman (Oct. 31, 2006), '[5; under the holdings of the September 11th M&O, the awards to Arroyo and LaFaye, both of whom took a challenged exam, comported with Title VII and the Fourteenth Amendment.
5

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 6 of 29
that satisfies the "strong basis in evidence" standard under the Fourteenth Amendment necessarily satisfies the "conspicuous imbalance" standard under Title VII. See id. at 424 ("[A]s Johnson makes clear, the requisite magnitude of the disparity is less [under the "conspicuous imbalance" test than under "strong basis in evidence" test], although just how much less is unclear."). As further explained in the September 11th M&O, one way of making out a prima facie case of disparate impact is to show a violation of the EEOC's "80 percent" rule of thumb, under which "a selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact," id. at 425 (quoting 29 C.P.R. § 1607.4(D)); alternatively, a prima facie case can be established if "the plaintiff can show a statistically significant disparity of two standard deviations" because "[c]ourts generally consider this level of significance sufficient to warrant an inference of discrimination." Id. (quoting Smith v. Xerox Corp. 196 F.3d 358, 365 (2d Cir. 1999), overruled on other grounds by Meacham v. Knolls Atomic Power Lab., 461 F.3d 134 (2d Cir. 2006)).
At the November 21st hearing, the United States presented testimony from Bernard Sisken, Ph.D., a statistician with extensive experience in employment discrimination. Dr. Sisken, together with another statistician, Leonard Cupingood, Ph.D., prepared the November 1997 report, referenced in the September 11th M&O, analyzing the Board's written examinations that the United States relied on when the Board was contesting the claim that the tests had an adverse impact on blacks and Hispanics; that report was received in evidence at the hearing.
6

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 7 of 29
To rebut Dr. Siskin's testimony, the Brennan Intervenors presented the testimony of James Sharf, Ph.D., an industrial psychologist with extensive experience in developing job selection tests; from 1974 to 1978, he was the chief psychologist at the EEOC, where he played a major role in negotiating the agency's Uniform Guidelines on Employee Selection Procedures. In January 2003, the Brennan Intervenors retained Dr. Sharf to review and analyze the expert reports prepared on behalf of the United States and the Board; in a report dated January 30, 2003, also received in evidence at the hearing, Dr. Sharf concluded that qualified Hispanics passed the 8206 Exam at more than 80% of the white pass rate and, therefore, the exam did not have a disparate impact on Hispanics. A. The United States' Evidence
In his 1997 report and at the hearing, Dr. Siskin presented two statistical analyses of the exam. He first compared the percentage of Hispanics and whites that had achieved the minimum passing score of 70, without regard to whether they met other qualifications, such as prior experience, English-language proficiency and licensure requirements! That comparison - 69% (29 out of 42) of Hispanic test-takers, as compared to 85.6% (273 out of 319) of white test-takers- equated to a Hispanic pass rate of 80.61% of the white pass rate. Dr. Sisken testified that this disparity was statistically significant, representing 2.51 units of standard deviation, meaning that the probability that the disparity was due to chance was "[a]bout one in a hundred." Tr. at
4As Dr. Sharf explained, it is "not at all unusual" for a public employer such as the Board to use a score of seventy as the pass-fail cut-off for civil-service examinations. Tr. at 72.
7

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 8 of 29
23. 5 In Dr. Siskin's second analysis, he compared the percentage of Hispanic
and white test-takers, again regardless of whether they met the other qualifications, that had achieved a score of 85 or higher; Dr. Siskin referred to this as the "effective" passing score because "[a]nyone that scored below eighty-five could not have been hired, no matter what. He would have essentially been knocked out by the test." Id. at 14. Dr. Siskin found that 11.9% (5 out of 42) of Hispanic test-takers achieved the effective passing score, as compared to 31.7% (101 out of 319) of white test-takers; thus, Hispanics effectively passed the exam at only 37.54% the rate of whites. Dr. Siskin testified that this disparity was also statistically significant, representing 2.46 units of standard deviation.
Dr. Siskin also compared the nominal and effective pass rates of qualified test-takers (i.e., those who took the exam and met the other qualifications) by subtracting from his analyses unqualified test-takers (i.e., those who took the exam but lacked one or more of the other qualifications); to determine the number of unqualified test-takers, he added the number of unqualified test-passers to the number of unqualified test-jailers. For unqualified test-passers, Dr. Siskin used the results of the Board's normal hiring process, which included a post-exam qualifications review of test-passers. Because, as Dr. Siskin conceded, excluding only unqualified test-passers could be taken to mean that all test-failers were qualified, see Tr. at 24 ("The problem with that, of course, is [that] it doesn't remove the failures who were not qualified."), he
5"Tr." refers to the transcript of the November 21st hearing.
8

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 9 of 29
estimated the number of unqualified test-failers based on three alternative assumptions: (1) that unqualified test-failers occurred in the same proportion as unqualified testpassers, (2) that the proportion of unqualified test-failers was double the proportion of unqualified test-passers, and (3) that the proportion of unqualified test-failers was triple the proportion of unqualified test-passers.
Dr. Siskin rejected the alternative methodology of calculating the number of unqualified test-failers used by Dr. Phillip Bobko, the expert retained by the Board when it was contesting the United States' claims. Dr. Bobko derived the number of unqualified test-failers from data generated from the Board's after-the-fact review of test failers' qualifications, which was conducted solely for the purpose of litigation; using that methodology, he opined that qualified Hispanics passed the exam at 89.3% the rate of qualified whites. Dr. Siskin's reason for rejecting Dr. Bobko's methodology for determining unqualified test-failers was that a significant number (according to Dr. Siskin, 20-25%) of test-passers deemed unqualified succeeded in getting that determination overturned through an administrative appeals process, an option that was not available to test-failers.6
The results of Dr. Siskin's two analyses are summarized in the following two tables:'
6Dr. Siskin also testified that a study conducted for litigation raises the risk that the evaluators intentionally or unintentionally made their determinations with an eye towards reaching a particular result.
'These tables are recapitulations of the tables presented in Dr. Siskin's 1997 Report and at the November 21st hearing, with the exception of the fractions in parentheses, which the Court has added to provide a more concrete context for Dr. Siskin's percentages.
9

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 10 of 29

Comparator Group

Table 1: "Nominal" Passing Score (70 or Above)

...
Hispanic
Pass·R~te

Will~ Pass"Bii!le

Hispanic Pass R~t~ +White
Pass Rate

All test-takers

69.0% (29/42)

85.6% (273/319)

80.61%

Excluding unqualified passers

64.9% (24/37)

83.5% (233/279)

77.72%

Excluding unqualified takers
(Assumes proportion of unqualified
failers =proportion of unqualified
passers)

70.6% (24/34)

85.3% (233/273)

82.77%

Excluding unqualified takers
(Assumes proportion of unqualified
failers =2x proportion of unqualified
passers)

77.4% (24/31)

87.6% (233/266)

88.36%

Excluding unqualified takers
(Assumes proportion of unqualified
failers =3x proportion of unqualified
passers)

85.7% (24/28)

90.0% (233/259)

95.22%

No. of Standard Deviations
2.51 2.51 1.95
1.29
0.37

Table 2: "Effective" Passing Score (85 or Above)

Comparator Group
All test-takers
Excluding unqualified passers
Excluding unqualified takers (Assumes proportion of unqualified
failers =proportion of unqualified
passers) Excluding unqualified takers (Assumes proportion of unqualified
failers =2x proportion of unqualified
passers) Excluding unqualified takers (Assumes proportion of unqualified
failers =3x proportion of unqualified
passers)

Hispanic Pass Rate
11.9% (51 42)
5.4% (2/37)
5.9% (2/34)

Pa~ i\Slf.il-.~l'l~
31.7% (101/319)
32.3% (90/279)
33.0% (90/273)

Hispanic Pass Rate+ White
Pass Rate
37.54%
16.72%
17.88%

No. of Standard Deviations
2.46
3.19
3.05

6.5%

33.8%

19.23%

2.92

(2/31)

(90/266)

7.1%

34.7%

20.46%

2.76

(2/28)

(90/259)

10

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 11 of 29
As Table 1 shows, the nominal pass rate of Hispanics fell below the EEOC's "80 percent" rule of thumb only if one (a) excluded unqualified test-passers, and (b) unreasonably assumed that there were no unqualified test-failers. If one assumed that failers were unqualified in at least the same proportion as passers, Hispanics achieved a nominal passing score at between 82.77% and 95.22% the rate of whites; Dr. Siskin conceded that those disparities (which equate to standard deviations of between 1.95 and 0.37) are not statistically significant. See Tr. at 21 ("If you make this assumption [regarding the number of unqualified test-failers], it [is] not statistically significant."); see also id. at 25 (acknowledging that a standard deviation of 1.96 is a "bright line test" for statistical significance).
By contrast, Table 2 shows that the disparities in effective scores fell well below 80% under any of Dr. Siskin's three assumptions about the number of unqualified test-failers. In addition, Dr. Siskin testified that these disparities were all statistically significant; he testified, for example, that a fair test would yield a standard deviation of 3.05 (the standard deviation for effective pass rates assuming the proportion of unqualified test-failers was equal to the proportion of test-passers) "roughly three in a thousand times." Tr. at 27. Even in the extreme case- a proportion of unqualified test-failers equal to three times the proportion of unqualified test-passers - qualified Hispanics achieved an effective passing score at only 20.46% the rate of qualified whites, yielding a statistically significant standard deviation of 2.76.
On cross-examination, the Brennan Intervenors asked Dr. Siskin about one of the other tables in his 1997 report; according to that table, which was not discussed
11

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 12 of 29
on direct examination, no Hispanics were hired from the eligibility list for the exam. Relying on a list provided by the Board during discovery, the Brennan Intervenors posited that Frank Zapata, Jr. and Jorge Trifun were hired based on the exam, and that both those individuals were classified as Hispanic males. Dr. Siskin conceded that if Zapata and Trifun are Hispanic, they were possibly "misclassified [as white] in every single study [he] did of the 8206 test." Tr. at 44. B. The Brennan Intervenors' Evidence
Dr. Sharf testified that comparisons of pass rates should be restricted to qualified test-takers, agreeing with Dr. Siskin that to "assume[] that all test failers were 'otherwise qualified"' was "completely unrealistic ... given the numbers of test passers who were contemporaneously deemed not otherwise qualified." Brennan Intervenor's Ex. 2 (Aff. of James C. Sharf (Oct. 18, 2004)) '![ 11 8 Dr. Sharf also "agreed with [Dr. Siskin's] assumptions when he assumed that the qualification rate for those passing was comparable to those not passing and then a double multiple and triple multiples." Tr. at 96.
Dr. Sharf testified, however, that only nominal pass rates should be considered in assessing whether the exam had a disparate impact on Hispanics, rejecting Dr. Siskin's effective-score analysis on the ground that it "tells you more about the labor market than it does about the test," Tr. at 71, in that the score will vary depending on the number of applicants and the length of time that the resulting eligibility list remains in effect, a variable that may not be known for several years after
8Dr. Sharf testified that the statements in his October 2004 affidavit "reflect [his] current views about the adverse impact of the 8206 test on Hispanics." Tr. at 79.
12

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 13 of 29
the test is administered. He further testified (1) that Dr. Siskin used the effective-score analysis only in his 1997 report, and not in his rebuttals to the other experts, and (2) that the small sample sizes involved made the analysis unreliable, particularly in light of the possible misclassification of Zapata and Trifun. Dr. Sharf did not, however, independently run the data to determine the effect of the possible misclassification. C. The Parties' Contentions 1. Nominal-Score Analysis
The United States and the Arroyo Intervenors argue that Dr. Siskin's comparison of the nominal scores of all test-takers (summarized in the first row of Table 1) is sufficient to establish a prima facie case that Exam 8206 had a disparate impact on Hispanics. In response, the Brennan Intervenors argue that since custodial positions required qualifications other than a passing exam score, the comparison of all testtakers, both qualified and unqualified, is insufficient to establish a prima facie case of past testing discrimination warranting corrective affirmative action:
The Court agrees with the Brennan Intervenors. As noted in the September 11th M&O, Johnson instructs that "[w]here a job requires special training ... the comparison should be with those in the labor force who possess the relevant qualifications." New York City Bd. of Educ., 448 F. Supp. 2d at 424 (quoting Johnson, 480 U.S. at 632). Two years after Johnson, the Supreme Court applied this instruction in Wards Cove Packing Co. v. Atonia, 490 U.S. 642 (1989), holding that a statistical
9Although the parties frame the issue in terms of evidence sufficient to make out a prima facie case, it bears repeating that the actual standard is whether there was a strong basis in evidence -that is, evidence approaching a prima facie case- that the exam had a disparate impact on Hispanics.
13

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 14 of 29
comparison between the racial compositions of an unskilled work force and a skilled work force did not make out a prima facie case of disparate impact because "the [unskilled] work force in no way reflected the pool of qualified job applicants or the qualified population in the labor force." Id. at 651 (emphasis in original; internal quotation marks omitted). As the Court explained, "[i]f the absence of minorities holding ... skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not [the employer's] fault), [the] selection methods or employment practices cannot be said to have had a 'disparate impact' on nonwhites," id. at 651-52; rather, "[i]t is ... a comparison [ ] between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs [ ] that generally forms the proper basis for the initial inquiry in a disparate-impact case." Id. at 650-51. Thus, the relevant comparison here must be between qualified test-takers.
Drs. Siskin and Sharf agree that excluding the number of unqualified testpassers, without excluding any test-Jailers (i.e., the second row of Table 1), does not yield a reliable measure of qualified test-takers. Both experts also agree that Dr. Siskin's other assumptions are appropriate estimates of the number of unqualified test-failers;10 however, under those assumptions, Dr. Siskin's nominal-score analysis reveals that qualified Hispanics passed the exam at more than 80% the rate of qualified whites, and that the disparities that do exist are not statistically significant. While based on the first
10While Dr. Bobko offered an alternative method for calculating unqualified testfailers, based on the Board's after-the-fact review of experience papers, the Court credits Dr. Siskin's opinion, which was not challenged by Dr. Sharf, that the reliability of that review was undermined by the fact that a significant number of test-passers succeeded in getting an adverse qualifications determination overturned.
14

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 15 of 29
assumption, the Hispanic pass rate was 82.77% that of whites, with a standard deviation of 1.95, the Court is not inclined to conclude that either the pass rate or the standard deviation approaches a prima facie case given the lack of judicial guidance as to where or how one draws the line marking the nuanced difference between a prima facie case and evidence approaching a prima facie case. 2. Effective-Score Analysis
Having concluded that the relevant companson must be restricted to qualified test-takers, the Court confines its consideration of Dr. Siskin's effective-score analysis to rows 3 through 5 of Table 2, which reflect what both Dr. Siskin and Dr. Sharf agreed were appropriate assumptions about the number of unqualified test-takers. The Brennan Intervenors do not dispute that the effective-score analysis revealed that the effective pass rate of qualified Hispanics was less than 80% the rate of qualified whites; however, they raise several challenges to the methodology of the analysis and the underlying data. a. Methodology
With respect to methodology, the Brennan Intervenors argue that the analysis does not isolate the disparate impact of the exam as a screening device since it does not control for other variables in the hiring process, such as the size of the applicant pool, the length of time the eligibility list for the exam remained open, and the vagaries of the interview process. They also argue that it relies on sample sizes too small to allow for meaningful statistical analysis. Finally, they argue that it is a belated
15

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 16 of 29
resurrection of a theory of disparate impact that Dr. Siskin did not rely on in his rebuttal reports criticizing the analyses of Drs. Bobko and Sharf.
The Brennan Intervenors' first objection to the effective-score analysis must fail under Waisome v. Port Authority of New York and New Jersey, 948 F.2d 1370 (2d Cir. 1991). At issue in Waisome was a promotional examination that served two functions:
First, it served as a pass-fail mechanism that required each candidate to obtain a passing score before moving on to the next step of the examination. Second, candidates' scores on the written test were factored into the composite scores that were then used to compute a candidate's rank on the Eligibility List. Id. at 1377. The Second Circuit held that "[w]here a test serves [such] dual functions ... , evidence that the scores of members of a protected group were clustered at the low end of the grading scale- though such group members may have passed the examination in sufficient numbers -provides support for a finding that the test had a disparate impact on that group, assuming the clustering could not have occurred by chance." Id. Thus, the circuit court held that it was error for the district court to reject the argument that "the rate at which black candidates achieved the minimum score on the written test necessary for promotion was significantly less than the rate at which white candidates obtained the minimum score." Id. The 8206 Exam served the same functions as the test at issue in Waisome: It was used first to eliminate applicants scoring below 70 from further consideration, and then to rank those scoring above 70 on an eligibility list. While the Court agrees with Dr. Sharf that an effective passing score will depend on such variables as the size
16

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 17 of 29
of the applicant pool and the length of time the eligibility list remains open, a fair test should yield roughly proportional pass rates regardless of the score. Dr. Siskin's effective-score analysis, by contrast, reveals disproportionate clustering: Of the 24 qualified Hispanic test-passers, 22 (or 91.7%) received scores of 70-84, while only 2 (or 8.3%) received scores of 85 or above; of the 233 qualified white test-passers, 148 (or 61.4%) received scores of 70-84, while 90 (or 38.6%) received scores of 85 or above.
Regarding the Brennan Intervenors' second challenge, the Court concludes that the samples (42 Hispanic test-takers and 319 white test-takers) were sufficiently large to make meaningful comparisons. Compare Connecticut v. Teal, 457 U.S. 440, 443 & n.4 (1982) (comyarison of 48 black test-takers and 259 white test-takers sufficient), with Pollis v. New School, 132 F.3d 115, 121-122 (2d Cir. 1997) (sample size of eight insufficient).
Finally, regarding the claim that the effective-score analysis was an eleventh-hour invention, the Brennan Intervenors do not dispute that Dr. Siskin included the analysis in his 1997 report; since Drs. Bobko and Sharf did not address that analysis in their critiques of Dr. Siskin's report, his failure to include it in his rebuttals is of no consequence.
Thus, notwithstanding the Brennan Intervenors' challenges to Dr. Siskin's methodology, his effective-score analysis provides the requisite strong basis in evidence that the 8206 Exam had a disparate impact on Hispanics, unless, as the Brennan Intervenors contend, data errors undermine the results of the analysis.
17

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 18 of 29
b. Data Errors The Brennan Intervenors challenge the accuracy of the data because it
identified only two qualified Hispanics - Wilfreda Cruz and Kevin LaFaye - who scored 85 or higher on the exam; they argue that their cross-examination of Dr. Siskin established that Zapata and Trifun were erroneously excluded from that total. In addition, they argue in their post-hearing submissions that three more- Gil Perez, Isaac Alboher and John Fernandez- were erroneously excluded from the number of qualified Hispanics scoring 85 or higher because they appear on a hiring list for the 8206 Exam provided by the Board during discovery.
In an affidavit submitted after the November 21st hearing, Dr. Siskin avers that the information he received from the Board classified Trifun and Zapata as white. While he does not dispute that Perez, Alboher and Fernandez are Hispanic, he attests that the information he received from the Board classified them as unqualified; while Trifun was also classified as unqualified, Dr. Siskin acknowledges that he was subsequently hired. Finally, Dr. Siskin avers that all of the experts relied on the data provided by the Board. See Dec!. of Bernard R. Siskin, Ph.D. (Dec. 14, 2006).
The Brennan Intervenors have moved to strike Dr. Siskin's affidavit or, in the alternative, to reopen the hearing. The Court notes that, despite having a full and fair opportunity to contest Dr. Siskin's data, the Brennan Intervenors did not adduce any evidence regarding Perez, Alboher and Fernandez at the November 21st hearing. Nevertheless, the Court will assume, arguendo, that the Brennan Intervenors are correct that Perez, Alboher and Fernandez should be reclassified as qualified, Zapata as
18

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 19 of 29

Hispanic, and Trifun as qualified and Hispanic; those reclassifications yield the

following results:

Table 3: "Effective" Passing Score (85 or Above) with Perez, Alboher, Fernandez, Zapata and Trifun Reclassified11

i'
Comparator Group
'
',
Excluding unqualified takers
(Assumes proportion of unqualified failers =
proportion of unqualified passers)
Excluding unqualified takers
(Assumes proportion of unqualified failers =
2x proportion of unqualified passers)
Excluding unqualified takers
(Assumes proportion of unqualified failers =
3x proportion of unqualified passers)

111ispanic l'assRo!e
17.1%
(7 I 41)

Wh~~~
I' l'assRate
'
32.8% (891271)

17.5%
(7 I 40)

33.6% (89/265)

17.9% (7 139)

34.5% (891258)

Hispamc l'ass Rate+ White
l'ass,Rate
52.13%
52.08%
51.88%

Thus, giving the Brennan Intervenors the benefit of all doubts about Perez,

Alboher, Fernandez, Zapata and Trifun results in smaller disparities, but does not

change the conclusion that the effective pass rate of qualified Hispanics was less than

80% that of qualified whites; there is still a dramatic difference between the effective

pass rates of Hispanics and whites.

Reclassifying Perez, Alboher, Fernandez, Zapata and Trifun undoubtedly

changes the standard deviations presented in Table 2, and neither Dr. Siskin nor Dr.

11Table 3 is based on the Court's own calculations. The numerators for the Hispanic and white pass rates were derived by adding five (Perez, Alboher, Fernandez, Trifun and Zapata) to Dr. Siskin's number of qualified Hispanic effective passers and subtracting one (Zapata) from his number of qualified white effective passers. Calculation of the denominators was more complicated because the reclassifications change the proportions of unqualified effective test-passers from 5129 to 2131 for Hispanics and from 401273 to 391271 for whites; applying the new proportions to Dr. Siskin's three assumptions yields the denominators given above.
19

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 20 of 29
Sharf has recalculated them. Since, however, statistical significance is an alternative test for disparities that do not run afoul of the "SO percent" rule of thumb, see 29 C.F.R. § 1607.4(D) ("Smaller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms[.]"); Xerox Corp., 196 F.3d at 365 (describing statistical significance as "an alternative measure of differences between groups"), recalculation of the standard deviations is unnecessary. D. Conclusion
In sum, notwithstanding the Brennan Intervenors' challenges, Dr. Siskin's analysis demonstrates that there was a large disparity between the effective pass rates of qualified Hispanics and qualified whites taking the 8206 Exam. Accordingly, the Court finds that there was a strong basis in evidence- that is, evidence approaching a prima facie case - that the exam had a disparate impact on Hispanics.
THE CALDERO INTERVENORS' MOTIONS A. For Reconsideration
The September 11th M&O assumed that the Agreement was intended to remedy both testing and recruiting discrimination, and that the beneficiaries were, depending on whether they had taken and failed a challenged exam, accordingly divided into testing-claim beneficiaries and recruiting-claim beneficiaries. These assumptions were based on the Relief Chart prepared by the United States, but the Court recognized that the Relief Chart was not necessarily sacrosanct. See, e.g., New York City Bd. of Educ., 448 F. Supp. 2d at 446 ("If the United States' Relief Chart is proven to
20

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 21 of 29
be accurate, 28 [blacks and Hispanics] were afforded full retroactive seniority [under the testing claim]." (emphasis added)).
The Caldero Intervenors now ask the Court to reconsider its reliance on the Relief Chart. In that regard, they note that the Agreement does not categorize the beneficiaries, and that the United States prepared the Relief Chart based on the assumption that the Agreement could only provide relief to actual victims of discrimination, an assumption rejected by the Court in the September 11th M&O.
The Caldero Intervenors' request for reconsideration presents, in essence, an issue regarding the United States' and the Board's intent in drafting the Agreement and, in particular, in creating the list of Offerees. It is possible, as the Caldero Intervenors contend, that the parties developed the list without distinguishing between the testing claim and the recruiting claim. It is also possible, as the Relief Chart suggests, that the parties intended to offer relief based on the testing claims to blacks and Hispanics who had taken and failed one of the challenged exams, and relief based on the recruiting claim to blacks and Hispanics (as well as women and Asians) who had not.
Whatever the parties intended, their intent was surely based on the assumption that both the testing claim and the recruiting claim warranted an affirmative-action remedy. The Court has rejected the latter half of that assumption; the Agreement is silent, and therefore ambiguous, as to how the parties would have addressed this change in circumstances had they foreseen it. Accordingly, an evidentiary hearing is needed to determine the parties' intent as a matter of fact. See,
21

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 22 of 29
e.g., Spencer, White & Prentis, Inc. v. Pfizer, Inc., 498 F.2d 358, 363 (2d Cir. 1974) ("[T]he
meaning of an ambiguous [contract] presents a question of fact on which resort may be
had to extrinsic aids of construction throwing light upon the intent of the parties.").
Determination of the parties' intent has potential implications on the
Court's legal analysis. If the Court finds that the intent of the Agreement was to give
relief to blacks and Hispanics regardless of whether they failed a challenged exam, then
the Court must reassess whether the Agreement, so construed, "unnecessarily
trammels" the rights of non-minority employees under Title VII and is narrowly
tailored under the Fourteenth Amendment.
The September 11th M&O sets forth the factors relevant to the Court's
"unnecessary trammeling" analysis:
[T]he award of retroactive seniority to non-victims insofar as it affects transfers and TCAs passes muster under Title VII. In the first place, it has a limited effect: While being passed over for a transfer or a TCA is not inconsequential, it is less harsh than losing one's job or being required to accept a reduction in pay; in any event, there is no absolute entitlement by any employee to either of these benefits.
Moreover, neither race, national origin nor gender are "absolute bars" to advancement by the non-minorities; there are no quotas or set-asides for minorities and women on the transfer and TCA lists. With respect to transfers, seniority is only one factor; with respect to TCAs, seniority only affects the order in which TCAs are awarded, not their frequency. And even when race, national origin or gender proves to be the deciding factor, the unsuccessful applicant remains eligible for future transfers and TCAs. Finally, the award is temporary - it comprises a one-time benefit to current employees; future hirees will attain and accrue seniority without regard to race, national origin or gender.
22

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 23 of 29
New York City Bd. of Educ., 448 F. Supp. 2d at 431. While the addition of a large number of beneficiaries might eventually compel the conclusion that an affirmative-action plan unnecessarily trammels the rights of others, the relatively modest addition of 11 beneficiaries here does not change the fact that employees have no absolute entitlement to a particular transfer or TCA, that there are no quotas or other absolute bars to obtaining these benefits, or that the Agreement provides for a one-time adjustment of seniority. Thus, the Court concludes that construing the Agreement to provide benefits to 11 blacks and Hispanics who did not fail a challenged exam will not alter the Court's conclusion that, for purposes of transfers and TCAs, it comports with Title VII.
As explained in the September 11th M&O, the narrow tailoring inquiry requires consideration of "the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties." New York City Bd. of Educ., 448 F. Supp. 2d at 438 (quoting United States v. Paradise, 480 U.S. 149, 171 (1987)). Some of those factors may be affected by the number of beneficiaries. For example, awarding benefits to individuals who did not fail a challenged exam may prove to be unnecessary if providing benefits only to those who did fail an exam would be sufficient to remedy the disparate impact of the exams on the Board's workforce. If reassessment of the narrowing tailoring analysis proves necessary, the Court will invite submissions as to whether offering relief to black and Hispanic males who did not fail a challenged exam was necessary to remedy testing discrimination.
23

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 24 of 29
If the Court finds that the intent of the Agreement was to distinguish between testing-claim and recruiting-claim beneficiaries, the Caldera Intervenors ask that the Court hold a hearing to determine whether any of the black or Hispanic recruiting-claim beneficiaries were actual victims of discrimination. In this regard, they proffer evidence that certain beneficiaries were not aware of the exams, and would have taken one of them had they been informed.
Although the September 11th M&O did not "rule out the possibility that some beneficiaries were actual victims of recruiting discrimination," the Court expressed its doubt that such a claim could be proven "given the lack of evidence of a causal connection between the number of women and minority test-takers and the Board's recruiting practices." New York City Bd. of Educ., 448 F. Supp. 2d at 446 n.57. The Caldera Intervenors' proffered evidence confirms this doubt: That some beneficiaries did not learn of an exam that they otherwise would have taken does not make out a prima facie disparate-impact claim in the absence of evidence connecting the resulting disparity to the Board's recruiting practices, a causal link not established by the statistical evidence presented in support of the recruiting claim.
While individual beneficiaries may be able to offer evidence in addition to that relied on by the United States and the Board in developing the Agreement, and thereby establish a disparate-impact (or even disparate-treatment) claim entitling them to a court-ordered remedy in separate litigation, the issue in this case is whether the Agreement, as a voluntary affirmative-action plan, was supported by sufficient evidence of discriminatory recruiting practices. Thus, if the Court finds that the Agreement
24

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 25 of 29
intended to distinguish between testing-claim beneficiaries and recruiting-claim beneficiaries, it will not hold a hearing on whether any of the latter were actual victims
of recruiting discrimination. B. For Clarification
The September 11th M&O focused on the validity of the Agreement's
awards of retroactive seniority. The Caldera Intervenors ask the Court to clarify that the M&O did not declare unlawful the Agreement's award of permanent-employee status to those Offerees who were still provisional employees at the time of its
execution. Having previously conceded that the beneficiaries should not lose their jobs,
see New York City Bd. of Educ., 448 F. Supp. 2d at 412, the Brennan Intervenors do not oppose clarification; however, they argue that the seniority benefits that flow from the permanent appointments is conceptually identical to retroactive seniority and,
therefore, that the Court's holdings with respect to the latter should apply with equal
force to the former. The Caldera Intevenors and the United States respond that the
awards of appointment-date seniority did not adversely affect the Brennan Intervenors because they were all already permanent employees when the Agreement took effect.12
12In addition, the United States, relying on the Brennan Intervenors' statements at the fairness hearing and before this Court, argues that they have waived any challenge to appointment-date seniority. A review of those statements demonstrates that the Brennan Intervenors preserved their objections to all seniority benefits. See Tr. of Fairness Hearing at 21 ("[MAGISTRATE JUDGE LEVY:] And if it were changed not to affect the seniority rights of people in your client's position, would that take care of their objections? [COUNSEL FOR THE BRENNAN INTERVENORS:] Absolutely."); Tr. of Oct. 6, 2005 Oral Argument at 13 ("MR. ROSMAN: The retroactive seniority agreements were not the only provisions that affected our seniority, our relative seniority.").
25

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 26 of 29
As explained in the September 11th M&O, seniority plays differing roles for purposes of transfers, TCAs and layoffs.13 With respect to layoffs, permanent Custodial Engineers retain the seniority they accrued as permanent Custodians. See New York City Bd. of Educ., 448 F. Supp. 2d at 412-13 (citing N.Y. Civ. Serv. L. § 80(1)). With respect to transfers and TCAs, permanent employees are eligible to bid for those benefits once they complete a one-year probationary period; the Board maintains separate lists for Custodians and Custodial Engineers. See id. at 411 & n.20 (transfers), 411-12 (TCAs). Thus, unlike layoff protection, Custodians and Custodial Engineers compete separately for transfers and TCAs.
Under this analysis, at least one of the Brennan Intervenors - Dennis Mortenson -was adversely affected by the Agreement's awards of appointment-date seniority to provisional employees. Though appointed as a permanent Custodian in 1990, Mortenson was not appointed as a permanent Custodial Engineer until December 20, 2002, after the awards of permanent employment took effect in February 2000, and after the beneficiaries completed their probationary periods one year later. Thus, Mortenson has less seniority, relative to the beneficiaries who received permanent appointments as Custodial Engineers, than he would otherwise have but for the Agreement.
The Court agrees with the Brennan Intervenors that its prior holdings apply to both retroactive seniority and appointment-date seniority. Since the
13Seniority also carries certain non-competitive benefits such as pension rights. The Brennan Intervenors do not challenge the Agreement's effect on entitlement to those benefits.
26

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 27 of 29
September 11th M&O held that there was insufficient evidence of past recruiting discrimination to satisfy strict scrutiny, it follows that the recruiting claim cannot be the basis for race-based alterations of relative seniority for purposes of transfers, TCAs or layoffs.
THE BRENNAN INTERVENORS' MOTION Having concluded that the evidence of the 8206 Exam's disparate impact on Hispanics was sufficient to justify affirmative action, the Court need not address the Brennan Intervenors' contention that other Hispanic Offerees in addition to Luis Torres received relief based on that exam. The Court therefore turns to their request for reconsideration regarding class certification. In the September 11th M&O, the Court certified a class "comprising all custodial employees whose layoff-protection rights have been adversely affected by the grant of seniority benefits to beneficiaries who are non-victims of discrimination." The class was so defined to encompass those custodial employees whose Title VII and Fourteenth Amendment rights were violated by the Agreement. As the Brennan Intervenors point out, however, the class, as currently comprised, does not include custodial employees whose seniority rights for transfers, TCAs and layoff protection might have been displaced based on the recruiting claim. In addition, the Brennan Intervenors contend that the class should include all custodial employees whose seniority rights for transfers, TCAs and layoff protection were adversely affected by the Agreement; in that regard, they point out (1) that the issue of class certification is antecedent to the merits of the claims the putative class seeks to
27

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 28 of 29
pursue, and (2) that appellate review may result in different conclusions regarding the Agreement's validity.
The Brennan Intervenors' points are well-taken. In addition, the Court notes that because the class has been certified under Federal Rule of Civil Procedure 23(b)(2), broadening the class has the practical advantage of binding class members to the extent the Court has upheld the Agreement's validity. See, e.g., Daniels v. City of New York, 198 F.R.D. 409, 415 (S.D.N.Y. 2001) ("When a class action is certified under Rule 23(b)(2) ... , all persons comprising the class become mandatory members. In other words, all those who come within the description in the certification become, and must remain, members of the class because no opt-out provision exists."). Indeed, a class action under Rule 23(b)(2) has been described as "a uniquely appropriate procedure in civil-rights cases, which generally involve an allegation of discrimination against a group as well as the violation of rights of particular individuals." 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure§ 1776 (3d ed. 2005); see also id. § 1776.1 ("Rule 23(b)(2) has been utilized to protect a variety of constitutional rights.").
For these reasons, the class to be certified is redefined as all custodial employees whose seniority for purposes of transfers, TCAs and layoff protection has been adversely affected by the grant of seniority benefits to the Offerees.
CONCLUSIONS 1. The Court finds that the United States established a strong basis in evidence that the 8206 Exam had a disparate impact on Hispanics; therefore, to the
28

Case 1:96-cv-00374-FB Document 622 Filed 04/25/07 Page 29 of 29
extent the Agreement made awards based on the exam, except for purposes of layoffs, it comports with the Fourteenth Amendment and, afortiori, Title VII.
2. The Court clarifies that the holdings of the September 11th M&O apply to both retroactive seniority and seniority based on permanent appointment.
3. For purposes of injunctive and declaratory relief, The Court certifies a class comprising all custodial employees whose seniority for purposes of transfers, TCAs and layoff protection has been adversely affected by the grant of seniority benefits to the Offerees.
4. An evidentiary hearing is required to determine (a) whether the Board and the United States intended to categorize Offerees as testing-claim and recruiting-claim beneficiaries and, if so, (b) which Offerees fall into each category.
SO ORDERED.

April20, 2007 Brooklyn, New York

/signed/
W'EDERIC BLO~
Senior United Sta c{District Judge

29

 
 Case 1:96-cv-00374-FB Document 641
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x RUBEN MIRANDA,

Filed 08/30/07

Page 1 of 2

O'l.· 1:-·1\1 ~.l

.' '..

,

I ·, , '

' 'J

• l _. J ~ ~

-against-

Plaintiff,

NEW YORK CITY DEPARTMENT OF EDUCATION,

MEMORANDUM AND ORDER Case No. 06-CV-2921 (FB)(RML)

Defendant. -------------------------------------------------------x

Appearances: For the Plaintiff: MICHAEL EVAN ROSMAN, ESQ. Center for Individual Rights 1233 20th Street, NW, Suite 300 Washington, DC 20036

For the Defendant: LAWRENCEJ. PROFETA, ESQ. New York City Law Department Office of the Corporation Counsel 100 Church Street New York, NY 10007

BLOCK, Senior District Judge:

Plaintiff, Ruben Miranda ("Miranda"), a school custodian, sues defendant,

the New York City Department of Education ("DOE"), and alleges that his rights under

Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e to 2000e-17, and the Fourteenth

Amendment were violated when he was denied two transfers that instead went to two

female custodians who were beneficiaries of the settlement agreement at issue in United

States v. New York City Board ofEducation, et al., Case No. 96-CV-374 (E.D.N.Y.) ("Action I").

Because his claims are substantially similar to those in Brennan, et al. v. Ashcroft, et al., Case

No. 02-CV-256 (E.D.N.Y.) ("Action II"), which has already been consolidated with Action

I, he moves to consolidate the present case with Actions I and II; the intervenors supporting

the settlement agreement in Action I ("the Arroyo Intervenors" and "the Caldero

Intervenors") oppose consolidatiOn on the ground that it will delay resolution of Action

I.

Case 1:96-cv-00374-FB Document 641 Filed 08/30/07 Page 2 of 2 The concerns of the Arroyo and Caldera Intervenors are illusory. At a recent
evidentiary hearing in Action I, counsel for Miranda and DOE stipulated on the record (1) that the Court's prior rulings in Action I would be determinative of Miranda's claims, and (2) that under those rulings, the denial of Miranda's transfer requests comported with Title VII and the Fourteenth Amendment. Despite this stipulation, the Arroyo Intervenors persisted in their objection.
Many of the issues in these actions have warranted vigorous litigation, but Miranda's motion for consolidation is not one of them. In light of the stipulation, consolidation with Actions I and II will not cause any delay in resolution of those actions; moreover, consolidation will promote judicial economy by readying all actions implicating the settlement agreement for the appeals that are undoubtedly on the horizon. The results of those appeals may well call for a reassessment of whether the actions should remain consolidated; however, at present, concerns of delay and judicial economy warrant consolidation. See Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990) ("In the exercise of [their] discretion, courts have taken the view that considerations of judicial economy favor consolidation."). Accordingly, Miranda's motion to consolidate the present action with Actions I and II is granted.
SO ORDERED.
/signed/

Brooklyn, New York August 24, 2007

Senior United States District Judge

2

 
 Case 1:96-cv-00374-FB Document 665 Filed 08/22/08 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

UNITED STATES of AMERICA, Plaintiff,

JUDGMENT IN A CIVIL CASE

VS
NEW YORK CITY BOARD OF EDUCATION, et. a!.,
Defendants.

CV-96-374(FB)

IT IS ORDERED AND ADJUDGED for the reasons stated in the Memoranda and Orders of September II, 2006, April 20, 2007, May 28, 2008 and July 30, 2008, the Court makes the following declarations in Case No. 96-CV-374 regarding paragraphs 13-16 of the Settlement Agreement between the United States and the New York City Board of Education ("the Agreement"):
I. As a remedy for testing discrimination, the awards of retroactive seniority to black and Hispanic Offerees for purposes of layoff protection violates Title VII and the Fourteenth Amendment, except insofar as the awards provide make-whole relief to actual victims of testing discrimination.
2. As a remedy for recruiting discrimination, the awards of retroactive seniority to female Offerees for purposes of layoff protection violates Title VII.
3. As a remedy for recruiting discrimination, the awards of seniority- both retroactive and based on permanent-appointment date - to black, Hispanic and Asian male Offerrees for purposes of transfers, TCAs and layoff protection violates the Fourteenth Amendment.
4. Ciro Dellaporte is not a member of a protected class and, therefore, not entitled to any relief.
5. Except as stated above, the reliefprovided by the Agreement comports with Title VII and the Fourteenth Amendment.

Case 1:96-cv-00374-FB Document 665 Filed 08/22/08 Page 2 of 2
The two schedules appended to this judgment set forth the retroactive seniority dates that comport with Title VII and the Fourteenth Amendment for (1) transfers and TCAs and (2) layoff protection. Schedule A covers Offerees who received relief under the testing claim; Schedule B covers Offerees who received relief under the recruiting claim. The schedules refer only to retroactive seniority and do not affect seniority accruing by virtue of permanent appointment. Any Offeree who does not appear on either schedule is not entitled to retain any retroactive seniority received under the Agreement for any purpose.
All parties have agreed that the foregoing declarations are to apply in Case Nos. 02CV-256 and 06-CV-2921. The transfers at issue in those cases comported with Title VII and the Fourteenth Amendment. Accordingly, the complaints in both cases are dismissed with prejudice.
The time for filing applications for attorney's fees and costs is extended to a date thirty (30) days from the completion of appellate proceedings.
ROBERT C. HEINEMANN CLERK OF THE COURT
~}
(By) DEPUTY CLERK

Case 1:96-cv-00374-FB Document 665-1 Filed 08/22/08 Page 1 of 2

Schedule A: Testing-Claim Offerees

rI'"''"" :'~t~~'l"!"i11Jl'1"W-i8nll!r!!lllP"I"t'~'~-~;',~11'lI"\"Il:1,: -'f TI I' ."'.

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I

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I

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I

11

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.,-. ,~\t{m~~~-
. I:0..'w[!(J7ik\B'!Aii.tl!.o~it1Jir~ir:>[•!~[,~I.u·

Arroyo, Pedro

4/13/90

10/8/92

Bailey, Lloyd

10/8/92

10/8/92

Casado, Jose

6116195

10/27/97

Christie, Joseph

1123/89

1123/89

Cordero, Ricardo

1123/89

1123/89

Fernandez, Celestino

5/8/95

10/27/97

Fields, Thomas

1/23/89

None

LaFaye, Kevin

4113/90

10/8/92

Lambert, Carla

1123/89

None

Lashley, Belfield

1123/89

1/23/89

Lopez, Steven

1116/95

2/23/00

Maldonado, Anibal

6/16/95

10/3/97

Marshall, Vernon

4/13/90

617190

Martinez, James

2/12/96

10/27/97

McGraw, Wilbert

4113/90

10/8/92

Ortega de Green, Silva

6116195

10/27/97

Pagan, Angel

1123/89

None

Pantelides, Anthony

1123/89

None

Pantelides, Nicholas

1123/89

10/27/97

Rivera, Gilbert

1/23/89

1123/89

Rivera, Sean

11/7/95

2/4/00

Robertin, Peter

1/23/89

1123/89

Torres, Felix

1123/89

1/23/89

Torres, Luis

10/8/92

None

Zaphrini (Citron), Mayla

1123/89

1123/89

Schedule B: Recruiting-Claim Offerees

Case 1:96-cv-00374-FB Document 665-1 Filed 08/22/08 Page 2 of 2

Caldero, Janet Calderon, Celia Chellemi, Martha D'Alessio, Kristen Daniele, Laura DiDonato, Charmaine Ellis, Dawn Farr, Elaine Gabrielson (McMahon), Margaret Jarrett, Marcia Kachadourian, Mary Leubkert (Falzarano), Kathleen Manousakis, Mariane Morton, Sandra Quinn, Maureen Sullivan (McGreal), Adele Tatum, Kim Wolkiewicz, Irene

1123/89 11/7/94 11/7/94 6/28/96 1123/89 1123/89 12/3/93 8/30/93 9/23/94
11/7/94 1123/89 12/3/93
6/20/94 1130/95 1/30/95 1119/92 1123/89 6/20/94

None None None None None None None None None
None None None
None None None None None None

 
 Case 1:96-cv-00374-FB Document 689 Filed 06/08/09 Page 1 of 7
OR\G\NAL

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------x UNITED STATES OF AMERICA,

~~~ ~· F
/~ ; fl ;

Plaintiff,
-against-
NEW YORK CITY BOARD OF EDUCATION; CITY OF NEW YORK; LILLIAM BARRIOSPAOLI, PERSONNEL DIRECTOR, NEW YORK CITY DEPARTMENT OF PERSONNEL (in her official capacity); and NEW YORK CITY DEPARTMENT OF PERSONNEL,

MEMORA~~]DUM & ORDER Case No. 9~:-CV-0374 (FB)(RML)
(consolidatE·d with Case No. 02-CV-256 (FB)(RML) & Case No. 06.CV-2921 (FB)(RML))

Defendants,

and

JOHN BRENNAN, JAMES G. AHEARN, DENNIS MORTENSON and SCOTT SPRING,

Intervenors,

and

JANET CALDERO, CELIA I. CALDERON, MARTHA CHELLEMI, ANDREW CLEMENT, KRISTEN D'ALESSIO, LAURA DANIELE, CHARMAINE DIDONATO, DAWN L. ELLIS, MARCIA P. JARRETT, MARY KACHADOURIAN, KATHLEEN LUEBKERT, ADELE A. MCGREAL, MARIANNE MAOUSAKIS, SANDRA D. MORTON, MAUREEN QUINN, HARRY SANTANA, CARL D. SMITH, KIM TATUM, FRANK VALDEZ and IRENE WOLKIEWICZ,

Intervenors,

and

Case 1:96-cv-00374-FB Document 689 Filed 06/08/09 Page 2 of 7

PEDRO ARROYO, JOSE CASADO, CELESTINO FERNANDEZ, KEVIN LAFAYE, STEVEN LOPEZ, ANIBAL MALDONADO, JAMES MARTINEZ, WILBERT MCGRAW,SILVIA ORTEGA DE GREEN and NICOLAS PANTELIDES,
Intervenors. ------------------------------------------------------------------X

Appearances: For the Plaintiff: ESTHER TAMBURO-LANDER, ESQ. United States Department of Justice Employment Litigation Section 950 Pennsylvania Ave., N.W. Washington, DC 20530
For the Defendants: LAWRENCE J. PROFETA, ESQ. The City of New York Law Department 100 Church St. New York, NY 10007

For the Intervenors: For Intervenor BrenHan, et al.: MICHAEL E. ROSMAN, ESQ. Center for Individua.ll Rights 1233 20th Street, N.W., Suite 300 Washington, DC 2('036
For Intervenor Arroyo, et al.: MATTHEW B. COLANGELO, ESQ. NAACP Legal Def,~nse Fund & Educational Fund, Inc. 99 Hudson St., 16th Floor New York, NY 10013
For Intervenor Calden, et al.: EMILY]. MARTIN, ESQ. American Civil Liberties Union Women's Rights Prcjed 125 Broad St., 18th l;loor New York, NY 10004

BLOCK, Senior District Judge: The United States, theCaldero Intervenors and the Brennan Intervenors have
all appealed this Court's final judgment of August 22,2008 ("the Judgment"); the latter two parties, along with the New York City Board of Education(" the Board''), now seek various
2

Case 1:96-cv-00374-FB Document 689 Filed 06/08/09 Page 3 of 7

forms of relief pending appeal:'

• The Caldera Intervenors seek a stay pending appeal o:' "that portion of [the
Judgment] declaring that calculation of seniority for purposes of transfers, TCAs, and layoff protection by reference to permanent appointment date for [male recruiting-claim beneficiaries] violates the Fourteenth Amendment." Caldera Intervenors' Mem. of Law at 2.

• The Brennan Intervenors seek an injunction barring the Board from" providing any
competitive seniority benefits to any beneficiary of the Settlement Agreement executed on February 11, 1999 ('the Agreement') ... to the extent that (1) the competitive seniority benefit resulted from the Agreement, (2) this Court found that those benefits were not a form of make-whole relief to actual victims of discrimination, and (3) this Court nonetheless found that the provision of those benefits did not violate the law." Brennan Intervenors' Mern. of Law at 3.

•

The Board seeks a complete stay of the Judgment.

"The standard in this circuit for a stay or injunction pending appeal is (1)

whether the movant will suffer irreparable injury absent a stay, (2) whether a party will

suffer substantial injury if a stay is issued, (3) whether the movant has demonstrated a

substantial possibility, although less than a likelihood, of success on appeal, and (4) the

public interests that may be affected." LaRouche v. Kezer, 20 F.3d Sll, 72 (2d Cir. 1994)

(citation and internal quotation marks omitted). These factors are int•:nelated, such that

"more of one excuses less of the other." Mohammed v. Reno, 309 F.3d %, 101 (2d Cir. 2002)

(citation and internal quotation marks omitted). Thus, "[t]he probability of success that

must be demonstrated is inversely proportional to the amount of :irreparable injury

plaintiff will suffer absent the stay." Id. (citation, internal quotation marks and alteration

1The Board also filed a notice of appeal, but has recently withdra1wn its appeal with the circuit court's permission.
3

------··----

Case 1:96-cv-00374-FB Document 689 Filed 06/08/09 Page 4 of 7
omitted). Here, the first and second factors present two sides o:' the same coin. Staying
the judgment would allow the Board to use the seniority dates established by the Agreement, even in cases in which the Court has held that it violates Title VII and/ or the Fourteenth Amendment. The Brennan Intervenors' proposed injunction, by contrast, would prohibit the Board from using those dates even in cases in which the Court has upheld the Agreement. But the Board must continue to make transfer, TCA and layoff decisions based on some seniority date, and the harm resulting from :he use of the "wrong" date (as determined by a higher court) is precisely the same- the loss of a transfer, TCA or job security to another custodial employee.
The Brennan Intervenors argue that the loss of a transfer or TCA to a beneficiary of the Agreement is irreparably harmful because it is of constitutional magnitude. See Brennan Intervenors' Mem. of Law at 9 ("[f].1e deprivation of a constitutional right - in this case the right to equal protection - has been deemed an irreparable harm."). As the Supreme Court has observed, however," rights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to protect peJrsons from injuries to particular interests, and their contours are shaped by the interests they protect." Carey v. Piphus, 435 U.S. 247, 254 (1978). And as this Court held earl:ier in this litigation, infringement of the interests at stake here does not constitute irrepara·.Jle harm. See United States v. New York City Bd. ofEduc., 2002WL31663069, at*4 (E.D.N.Y. Nov. 26,2002) ("[The Brennan Intervenors] allege employment-related economic injuries, lhe types of injuries
4
-------------

Case 1:96-cv-00374-FB Document 689 Filed 06/08/09 Page 5 of 7
long agoheld insufficient to warrant the extraordinary relief of a preliminary injunction."). In the same decision, the Court rejected the Brennan Interevenon' related argument that that the harm caused by an improper award of a transfer or TCA is ineparable because the resultant damages are difficult to measure. See id. ("As to the impracticality of measuring damages, [the Brennan Intervenors] have failed to establish that this is the type of extraordinary case where employment related injuries are impos~:ible to compensate."). Indeed, three of the Brennan Inventors have already sought money damages for the loss of transfers to beneficiaries of the Agreement; there is no reason why the loss of transfers and TCAs during the appellate process could not, if found unlawful by the circuit court (or by the Supreme Court), be remedied in the same manner.
For their part, the Caldera Intervenors focus on the pr::>:;pect of layoffs; they argue that if the Board implements a reduction in force pending appeal, those laid off will be irreparably harmed because they cannot be reinstated to jobs that no longer exist. Once again, however, staying the Judgment does not eliminate or reduo= the prospect of such harm; it merely affects which parties will incur it. More importa:tdy, the prospect of layoffs is - as it has been throughout this litigation - speculative. JJ layoffs become a realistic possibility, the Court will reconsider whether to stay the Judgment; for now, the risk is too attenuated.
Finally, the Board offers a different kind ofharm- the administrative expense of complying with the Judgment's modifications to the Agreement, under which the Board has operated since 2000, as well as the expense of undoing any modifications ultimately
5
------~---- - -

Case 1:96-cv-00374-FB Document 689 Filed 06/08/09 Page 6 of 7
reversed on appeal. Although the Board is a party, these expense> can be seen as affecting the public interest because, ultimately, they will be borne by theta:~ payer. Unlike the harm identified by the Brennan and Caldera Intervenors, the adrrinistrative expense of complying with the Judgment can be avoided by a stay pending appeal; moreover, they are sunk costs that, once incurred, cannot be recovered. Nevertheless, the Judgment requires only that the Board modify the seniority dates of certain beneficiaries of the Agreement; the Board has offered no evidence that these costs of compliance will be particularly onerous.
Because allowing the Judgment to remain in effect pEnding appeal will not cause any serious irreparable harm, it would take a strong showing (•f likelihood of success in the circuit court to justify a stay or injunction. In that regard, this litigation has raised no shortage of issues in an extreme!y uncertain and controversial are~ of law. See, e.g., Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008) ("[B]ecause the [New Haven Civil Service] Board, in refusing to validate the exams, was simply trying the fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected."), cert. granted, 129 S. Ct. 893 (2009). In other circumstances, such
uncertainty might warrant a stay. See Amara v. CIGNA Corp., 559 F. Gupp. 2d 192,222 (D.
Conn. 2008) ("In light of the complexity of the issues and the weighty interests at stake, as well as the possibility that some or all of this opinion ... may be reversed on appeal, the Court believes that a stay is appropriate."). Here, however, the unc~rtainty is such that both those defending the Agreement and those opposing it have colorable arguments to
6

Case 1:96-cv-00374-FB Document 689 Filed 06/08/09 Page 7 of 7

present to the circuit court; the likelihood of success on appeal Jis no stronger in one direction than the other.
In sum, neither the threat of irreparable harm nor t:1o~ likelihood of success on appeal is sufficiently one-sided to justify disturbing what the Court believes to be the legally correct result. Accordingly, all three motions for relief peno:t:ng appeal are denied.
SO ORDERED.

Brooklyn, New York June 2, 2009

s/FB
FREDERIC BLOC1 Senior United State:; District Judge

7

 
 448 F.Supp.2d 397 (2006)
UNITED STATES of America, Plaintiff, v.
NEW YORK CITY BOARD OF EDUCATION; City of New York; Lilliam Barrios-Paoli, Personnel Director, New York City Department of Personnel (in her official capacity); New
York City Department of Personnel, Defendants, and
John Brennan; James G. Ahearn; Dennis Mortenson and Scott Spring, Intervenors, and
Janet. Caldero, Celia I. Calderon, Martha Chellemi, Andrew Clement, Kristen D'Alessio, Laura Daniele, Charmaine DiDonato, Dawn L. Ellis, Marcia P. Jarrett, Mary Kachadourian, Kathleen Luebkert, Adele A. McGreal, Marianne Maousakis, Sandra D. Morton, Maureen
Quinn, Harry Santana, Carl D. Smith, Kim Tatum, Frank Valdez and Irene Wolkiewicz, Intervenors, and
Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin Lafaye, Steven Lopez, Anibal Maldonado, James Martinez, Wilbert McGraw, Silvia Ortega De Green and Nicolas Pantelides, Intervenors.
John Brennan; James Ahearn; Ernie Tricomi; Scott Spring; Dennis Mortensen; John Mitchell and Eric Schauer, Plaintiff, v.
John Ashcroft; Ralph Boyd; United States Department of Justice; New York City Board of Education; City of New York; New York City Department of Citywide Administrative Services and William J. Diamond, Defendants.
No. 96-CV-0374 (FB)(RML) ACTION I.
United States District Court, E.D. New York.
September 11, 2006.
349089012 *398 *399 *400 *401 *402 Charles E. Leggott, Esq., United States Department of Justice, Employment Litigation Section, Washington, DC, for Plaintiff.
Lawrence J. Profeta, Esq., The City of New York Law Department, New York City, for Defendants.
Michael E. Rosman, Esq., Center for Individual Rights, Washington, DC, for Intervenor Brennan, et al.
Matthew B. Calangelo, Esq., NAACP Legal Defense Fund & Educational Fund, Inc., New York City, for Intervenor Arroyo, et al.
Emily J. Martin, Esq., American Civil Liberties Union, Women's Rights Project, New York City, for Intervenor Caldero, et al.
MEMORANDUM ORDER
BLOCK, Senior District Judge.
403 *403

TABLE OF CONTENTS
INTRODUCTION...........................................................404
BACKGROUND.............................................................406
A. The Substance of the United States' Action.......................406
1. The Testing Claims............................................406
a. Hiring Practices...........................................406 b. Custodian Exam No. 5040....................................407 c. Custodian Engineer Exam Nos. 8206/8609.....................407 d. Custodian Exam No. 1074 ...................................407
2. The Recruiting Claim..........................................408
B. The Settlement Agreement.........................................409
C. The Impact of the Settlement Agreement on Seniority..............410
1. School Building Transfers.....................................411 2. Temporary Care Assignments....................................411 3. Layoffs.......................................................412
D. The Fairness Hearing and Magistrate Judge Levy's Memorandum and Order...........................................................413
E. The Second Circuit's Remand......................................415
F. The Post-Remand Interventions....................................416
1. The Brennan Interventions.....................................416 2. The Calder() and Arroyo Interventions.........................417
G. Post-Remand Challenges By The Brennan Intervenors................417
1. Challenges to the Reputed Protected Class.....................417 2. Challenges to the Testing Claims..............................418
a. Proof of Discrimination....................................418 b. Non-Victims of Discrimination..............................419
3. Challenges to the Recruiting Claim............................420
a. Proof of Discrimination....................................420 b. Non-Victims of Discrimination..............................421
H. Issues Briefed...................................................421
DISCUSSION.............................................................421
Preliminary Matters

A. Brennan Intervenors' Status......................................421

B. Effect of the Summary Judgment Motions on Action II..............422

C. Protected Class..................................................422

Title VII

A. Statistical Basis For the Affirmative-Action Plan................423

1. Testing Claims................................................425 2. Recruiting Claim..............................................427

B. Relief...........................................................428

1. Transfers and TCAs............................................431

2. Layoffs........................................................431

Fourteenth Amendment

A. Race-Based Classifications.......................................434

1. Compelling Interest For Race-Based Relief.....................434 2. Narrowly Tailored.............................................438

a. Transfers and TCAs.........................................439 b. Layoffs....................................................440

B. Sex-Based Classifications........................................441

1. Important Governmental Interest...............................442 2. Substantially Related.........................................442

404 *404

Remaining Matters

A. Propriety of Entry of a Consent Judgment.........................443

B. Class Certification..............................................444

RECAPITULATION.........................................................446

A. Testing Claims...................................................446

B. Recruiting Claim.................................................446

C. Reflections......................................................446

CONCLUSIONS............................................................447

INTRODUCTION
In 1993, the New York City Board of Education (the "Board") conducted a demographic survey of its Custodians and Custodian Engineers (collectively, "custodial employees");[1] it disclosed that 99% of its 831 permanent custodial employees were men, and that 92% were white.[2] A few years later, in 1996, the United States, in Action I, sued the Board pursuant to section 707(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a),[3] claiming that three entry-level examinations that the Board had administered, as well as the recruiting practices it had used to publicize those exams, violated Title VII. The lawsuit resulted in a Settlement Agreement (the "Agreement") that awarded employment benefits to a group of 59 individuals (the "beneficiaries") composed of black, Hispanic and Asian men and women, and non-minority females. See Jan. 10, 2005 Decl. of James Lonergan, Ex. I (Agreement).
This spawned interventions in that action by two groups supportive of the settlement, and one group opposed. Those supportive were 31 of the 59 beneficiaries (the "Caldero" and "Arroyo" intervenors). Those opposed were four white male custodial employees (the "Brennan" intervenors), who railed against the adverse effect the Agreement had on their seniority rights in regard to (1) school building transfers, (2) temporary care assignments, and (3) layoffs; rather than rely on their intervention rights, they also, together with two other white male custodial employees, brought a separate action (Action II).[4] In both actions, all the white males assert that their seniority 405 rights were violated in those three aspects under both Title VII and the Fourteenth Amendment, *405 and seek injunctive relief.[5] The two additional white males in Action II also seek monetary damages because they allegedly were denied school building transfers that, under the Agreement, were instead given to two unidentified beneficiaries.[6]
After extensive pre-trial proceedings and a protracted procedural history, the issue of the validity of the challenged parts of the. Agreement is now presented to the Court by the intervenors' respective motions for partial summary judgment in Action I.[7] Also before the Court are a motion in Action I by the Board to enter the Agreement as a consent judgment,[8] and motions by the white males in both actions for class-action certification.[9]
The Court declines to enter the Agreement as a consent judgment. The Court declares, however, that the Agreement is valid under Title VII, except to the extent that it grants preferential seniority as to layoffs to non406 victims of race, national origin and gender discrimination.[10] The *406 Court further declares that the Agreement is also valid under the Fourteenth Amendment, except to the extent that it (1) grants preferential seniority as to layoffs to non-victims of race or national-origin discrimination, and (2) grants relief to racial or ethnic minorities based on the recruiting claim. The Court also declares that one of the 59 beneficiaries is not a member of protected class. Finally, the Court grants class-action status to those whose layoff-protection rights were displaced by non-victims of discrimination.[11]
There are issues of fact which must now be resolved as to (1) whether there was sufficient evidence of discrimination in respect to one of the challenged exams; (2) the number of non-female blacks, Hispanics and Asians who received relief under the recruiting claim; (3) the number of blacks and Hispanics receiving preferential seniority for purposes of layoffs under the testing claims who were not actual victims of discrimination; and (4) the identities of the individual beneficiaries who received the transfers sought by the two additional white males in Action II.
BACKGROUND
A. The Substance of the United States' Action
The United States initiated Action I on January 30, 1996. Although it alleged both pattern and practice disparatetreatment claims0907requiring proof of intentional discrimination0907and disparate-impact claims, it pursued only the

disparate-impact claims. The United States claimed that the Board's hiring practices for custodial employees (the "custodial positions") violated Title VII in two respects: (1) that three written tests, administered as a prerequisite for obtaining a custodial position, had a disparate impact on blacks and Hispanics (the "testing claims"); (2) that the Board's recruiting practices for those tests had a disparate impact on blacks, Hispanics, Asians and females (the "recruiting claim"). The relevant tests were three entry-level exams: Custodian Exam No. 5040, Custodian Engineer Exam Nos. 8206/8609,[12] and Custodian Exam No. 1074.
1. The Testing Claims
a. Hiring Practices
The Board periodically administered written, multiple-choice civil-service examinations to identify eligible candidates for permanent custodial positions. Those who passed the exams and met the other eligibility requirements0907which included, inter alia, English-language proficiency0907were ranked and placed on eligibility lists. When a position became available, the top three candidates on the relevant list were interviewed, and one was appointed. Unsuccessful interviewees could be interviewed two more times; if they were not successful, they were removed from the list.
407 *407 The eligibility list created from Exam No. 5040 governed the hiring of Custodians between the spring of 1987 and the fall of 1990; 154 of 678 placed on that list were hired. The eligibility list created from Exam No. 1074 governed the hiring of Custodians from early 1997 until early 2000; 244 of 524 were hired. The eligibility list created from Exam Nos. 8206/8609 governed the hiring of Custodian Engineers between the spring of 1991 and early 1994; 46 of 335 were hired. If there were no eligible candidates when a custodial position became available, the Board solicited resumes for "provisional" as 0907 opposed to "permanent" 0907positions. The most qualified applicants were selected for interviews, and the most qualified interviewee was hired.
b. Custodian Exam No. 5040
Custodian Exam No. 5040 was administered in December 1985. The Department of Personnel then reviewed the "experience papers" of each successful exam-taker to determine if the applicant had the required amount of experience and/or education as advertised in the notice publicizing the exam; a negative determination could be administratively appealed. Applicants who passed the exam and had the requisite experience were given a "practical oral" exam, which was graded on a pass/fail basis. Those who passed were deemed eligible to be hired as Custodians.
c. Custodian Engineer Exam Nos. 8206/8609
Custodian Engineer Exam Nos. 8206/8609 were administered in May 1989. The Department of Personnel then reviewed the "experience papers" of each successful exam-taker to determine if the applicant had (1) the required amount of experience and/or education as advertised in the notice publicizing the exam, and (2) a license to operate a high pressure boiler; a negative finding in regard to experience papers could be administratively appealed. Unlike Custodian Exam No. 5040, there was no "practical oral" exam; rather, those who met the experience prerequisites were deemed eligible to be hired as Custodian Engineers.
d. Custodian Exam No. 1074
Custodian Exam No. 1074 was administered in January 1993. Applicants who passed the exam were then given a further, practical written exam, which was graded on a pass/fail basis. The Department of Personnel then reviewed the "experience papers" of each applicant who had passed both the initial multiple-choice exam and the practical exam to determine if the applicant had the required amount of experience and/or education as advertised in the notice publicizing the exam; a negative finding in regard to experience papers could be administratively appealed. Those who met the minimum prerequisites were deemed eligible to be hired as Custodians.
In support of its testing claims, the United States relied on a statistical analysis of pass rates compiled by Bernard R. Siskin, Ph.D. ("Dr. Siskin") and Dr. Leonard Cupingood, Ph.D. ("Dr. Cupingood"); their results were as follows:

-----------------------------------------------------------------------------------

No. 5040 No. 8206[13]

No. 1074

-----------------------------------------------------------------------------------

Passing white applicants

58.1%

85.1%

61.7%

408 *408

-----------------------------------------------------------------------------------

Passing black applicants

14.1%

50.0%

14.4%

-----------------------------------------------------------------------------------

Passing Hispanic applicants

27.7%

71.1%

30.8%

-----------------------------------------------------------------------------------

Pass rate for black applicants divided by pass

rate for white applicants

24.3%

58.8%

23.3%

-----------------------------------------------------------------------------------

Pass rate for Hispanic applicants divided by pass

rate for white applicants

47.7%

83.5%

49.9%

-----------------------------------------------------------------------------------

Disparity between the pass rate for white and black applicants (# of Standard Deviations)[14]

13.85

5.14

12.51

-----------------------------------------------------------------------------------

Disparity between the pass rate for white and

Hispanic applicants (# of Standard Deviations)

8.09

2.15

8.06

-----------------------------------------------------------------------------------

2. The Recruiting Claim

The recruiting claim centered on the practices the Board used to recruit individuals for the exams; the United States contended that those practices primarily consisted of limited advertising and word-of-mouth referrals having a disparate impact on women and minorities.

In support of this claim, the United States relied on the expertise of Orley Ashenfelter, Ph.D. ("Dr. Ashenfelter"), who deduced that the numbers of black, Hispanic, Asian and female applicants for each exam were statistically less than those who would be expected to take the exam. Dr. Ashenfelter recognized that the relevant comparator group should be composed of those members of the labor pool who possessed the requisite qualifications to take the exam; however, because such data were nonexistent, Dr. Ashenfelter used prior work experience as a proxy for those qualifications: First, he identified the actual applicants' most common prior occupations, regardless of their race or gender, by reviewing their experience papers. He next used data prepared from the 1980 and 1990 decennial censuses by the Bureau of the Census ("Census Data") to calculate the fraction of those engaged in those common occupations in New York City who were members of each of the protected classes; although the Census Data did not include data on previous work experience, it did include data on occupations (as of the previous year), race, ethnicity, gender and place of work. Finally, he assumed that the expected fraction of the protected-class applicants was the average of their representation in these occupations weighted by the fraction of applicants who worked in these jobs. His results were as follows:

Exam No. 5040

----------------------------------------------------------------

Estimated

Z-Statistic

Representation

Expected # of Actual # of (# of Standard

409

in Labor Pool

Applicants

Applicants

Deviations)[15]*409

--------------------------------------------------------------------------

Blacks

24.9%

439

641

5.41

---------------------------------------------------------------------------

Hispanics 24.9%

439

218

12.16

---------------------------------------------------------------------------

Asians

3.2%

56

15

5.61

---------------------------------------------------------------------------

Females

15.9%

289

200

12.81

---------------------------------------------------------------------------

Exam No. 8206

----------------------------------------------------------------

Estimated

Z-Statistic

Representation

Expected # of Actual # of (# of Standard

in Labor Pool

Applicants

Applicants

Deviations)

---------------------------------------------------------------------------

Blacks

22.1%

91

41

4.94

---------------------------------------------------------------------------

Hispanics 17.6%

73

42

3.65

---------------------------------------------------------------------------

Asians

4.9%

20

8

2.76

---------------------------------------------------------------------------

Females

9.4%

40

4

6.01

---------------------------------------------------------------------------

Exam No. 1074

----------------------------------------------------------------

Estimated

Z-Statistic

Representation

Expected # of Actual # of (# of Standard

in Labor Pool

Applicants

Applicants

Deviations)

---------------------------------------------------------------------------

Blacks

21.4%

300

215

5.54

---------------------------------------------------------------------------

Hispanics 23.1%

324

203

7.66

---------------------------------------------------------------------------

Asians

6.0%

84

25

6.65

---------------------------------------------------------------------------

Females

14.7%

209

71

10.34

---------------------------------------------------------------------------

Although Dr. Ashenfelter found a statistically significant disparity between the expected and actual number of applicants for each group and for each exam, he offered no opinion as to any cause for the disparities.

B. The Settlement Agreement

Magistrate Judge Levy presided over pretrial proceedings, which commenced on October 3, 1997. As recounted by him, after "years of highly contentious discovery, entailing the retention of numerous experts by both sides, the production of thousands of pages of documents, the taking of approximately thirty depositions, many applications to the court regarding discovery disputes, and over three months of arms-length settlement negotiations[,]" United States v. New York City Bd. of Educ., 85 F.Supp.2d 130, 135 (E.D.N.Y. 2000), vacated, 260 F.3d 123 (2d Cir.2001), the United States and the Board executed the Agreement on February 11, 1999, and jointly moved to enter it as a consent judgment.

The Agreement contains many provisions that are not in dispute, such as requiring the Board to implement a comprehensive recruitment plan designed to increase the number of black, Hispanic, Asian and female

applicants for custodial positions, see Agreement ¶ 18, and requiring the Board to consult with an expert designated by the United States before using written examinations to hire new custodial employees. See id. ¶ 28.
At issue are the remedies granted to the beneficiaries in Paragraphs 13-16. As of the date of the Agreement, a group of 54 individuals had been identified as blacks, Hispanics, Asians or white females eligible for relief, and were listed in Appendix A of the Agreement; they all had previously been hired as provisional employees and 410 although 43 still were, 11 had, by that *410 time, acquired permanent status.[16] The Agreement also offered relief to blacks, Hispanics, Asians and white females who might be hired as provisional custodial employees between the date of the Agreement and the date of anticipated court approval, provided they had taken one or more of the challenged exams; these individuals, together with those set forth in Appendix A, were defined in the Agreement as "Offerees." See Agreement ¶ 4.
Under Paragraph 13, all of the Offerees who were provisional employees would be granted permanent positions upon court approval of the Agreement.
Under Paragraphs 14-16, the Offerees were granted retroactive seniority. As for those listed in Appendix A, if the Offeree did not take any of the challenged exams, the retroactive seniority date was the date that he or she was provisionally hired; if the Offeree did take one or more of the challenged exams, the retroactive seniority date was the earlier of (1) the date he or she was provisionally hired, or (2) a "median date" for the exam.[17] For those who would be hired as Custodians after the Agreement, and hence were not listed in the Appendix, their retroactive seniority date would be the earliest provisional hire date for a Custodian listed in the Appendix (February 28, 1992); for those who would be hired as Custodian Engineers, their retroactivity seniority would date to the earliest provisional hire date in the Appendix for a Custodian Engineer (April 13, 1990). Furthermore, the Agreement provided that the award of retroactive seniority would "apply for all purposes for which seniority is applied except any applicable probation requirement." Agreement ¶ 14.
C. The Impact of the Settlement Agreement on Seniority
A custodial employee's seniority rights begin to accrue on the date of the employee's appointment to a permanent position. Of the four Brennan intervenors, Mortensen passed Exam No. 5040 and was appointed as a permanent Custodian on October 15, 1990. Brennan passed Exam Nos. 5040, 8206 and 1074, and was appointed as a permanent Custodian on or about March 24, 1997. Ahearn passed Exam Nos. 8206 and 1074, and was also appointed as a permanent Custodian on or about March 24, 1997. Spring passed Exam No. 1074 and was appointed as a permanent Custodian on June 23, 1997. Though Mortensen, Brennan and Ahearn were later appointed permanent Custodian Engineers, they retained the seniority rights that they had accrued as permanent Custodians.
By contrast, the Offerees' seniorities, as reflected in Appendix A, ranged from January 23, 1989, to February 12, 1996 for Custodians, and from April 13, 1990, to June 28, 1996 for Custodian Engineers, even though at the time the Agreement was executed in early 1999, 43 Offerees were still provisional employees not accruing any seniority.[18] By virtue of the Agreement, all Offerees have greater seniority than Brennan, Ahearn and Spring, 411 and 16 have greater seniority than Mortensen; *411 consequently, as now explained, the Brennan intervenors' rights to school building transfers, temporary care assignments, and layoff protection have been adversely impacted.
1. School Building Transfers
The Board periodically affords permanent custodial employees the opportunity to bid for a transfer to an open school building by distributing to them a list of the schools that have vacancies; in the two years after the Board implemented the Agreement, it issued six such lists. A custodial employee's salary depends on the school building to which he or she is assigned; therefore, a transfer may equate to a salary increase.[19]
The collective bargaining agreement ("CBA") between the Board and the custodial employees' union provides that transfers are governed by a combination of seniority and performance ratings. With limited exceptions, all permanent custodial employees are eligible to bid for a transfer to a different school upon completion of a one-

year probationary period. Custodians and Custodian Engineers are separately divided into seniority bands.[20] The custodial employee in the highest seniority band, provided that he or she has the requisite licensure for that particular school, is awarded the transfer. However, when there is more than one custodial employee in that seniority band, the one with the higher performance rating0907defined as the average of the principal's ratings over the preceding two years0907will receive the transfer unless the rating differential is equal to or less than a quarter point; in that case, the one with the most seniority will be awarded the transfer unless the school's principal vetoes the candidate or the candidate has received a performance rating of less than three.
The CBA provides that "[s]eniority of all candidates shall be determined solely by time served [as a permanent employee] together with time served in the predecessor title for that level [as a permanent employee,]" CBA at 23-24; for example, an employee who served five years as a Custodian and ten years as a Custodian Engineer Level 1, the new title for Custodians, would have fifteen years of seniority.
2. Temporary Care Assignments
The Board has a practice for filling temporary vacancies caused by illness, vacation or leave through Temporary Care Assignments ("TCA") to custodial employees. Under the TCA program, a custodial employee is assigned to an additional school to attend to such vacancies; the employee then divides his or her time between the two schools (without having to work additional hours) and collects a portion of the management fee for the second school. The process for awarding TCAs is not set forth in the CBA.
To be eligible for a TCA, a custodial employee must have attained permanentemployee status and completed the 412 one-year probationary period. Each borough maintains three lists of those eligible for *412 TCAs: one for
Custodian Engineers, one for Custodians and one for Custodians with fifteen or more years of seniority. Eligible custodial employees are placed on the applicable TCA list for the borough in which they work in the order that they completed their probationary periods; therefore, placement on a TCA list typically correlates with the date an employee is appointed as a custodial employee, given that the date of completion of the probationary period occurs one year after the employee's start date.[21]
When a temporary vacancy arises, the Board offers the TCA to the custodial employee who is at the top of the applicable list. After the completion of the TCA, the employee is placed on the bottom of the list. On average, an opportunity for a TCA arises once every two years and, on average, each TCA lasts two months.
The award of permanent-employee status had a nominal effect on the Brennan intervenors since it increased the number of custodial employees on the TCA lists, thereby reducing the frequency with which a custodial employee obtains a TCA.[22] Additionally, it affected the relative placement on the list of Mortensen, who was appointed as a permanent Custodian Engineer after the beneficiaries completed their one-year probationary periods.[23]See Brennan Intervenors' Reply Mem. of Points & Authorities in Further Support of their Motion for Partial Summary Judgment at 31 n. 11 ("The Brennan Intervenors do not dispute that the Offerees should not lose their jobs."); October 6, 2005 Oral Argument Tr. at 13 ("MR. ROSMAN: It does come down to seniority, yes. The retroactive seniority agreements were not the only provisions that affected our seniority, our relative seniority.").
3. Layoffs
The New York Civil Service Law provides that layoffs of custodial employees are made "in the inverse order of original appointment on a permanent basis," N.Y. Civ. Serv. L. § 80(1); a Custodian with more seniority has precedence over, and would be laid off later than, a Custodian Engineer with less seniority. Furthermore, the date 413 of original appointment is the date that an individual is appointed to *413 a permanent position provided that he or she provides "continuous service" in that position, see id. § 80(2) (defining "original appointment" as "the date of [the employee's] first appointment on a permanent basis . . . followed by continuous service . on a permanent basis"); one who serves as a provisional employee nonetheless provides "continuous service" when he or she served in a permanent position immediately before and after. See id. ("[A] period of employment on a . . . provisional basis . . . immediately preceded and followed by permanent service . . . shall not constitute an interruption of continuous service[.]"). Accordingly, for those Custodian Engineers who previously served as

Custodians, their dates of original appointment are the dates that they were appointed as Custodians 0907not the later appointments as Custodian Engineers. See Arroyo Ex. 83 (Gladstein Dep. Tr.) at 31-32.
The New York Civil Service Law speaks in terms of "permanent appointment," not "seniority." The parties, however, citing the language in the Agreement providing that the award of retroactive seniority applies for all purposes for which seniority plays a role, all agree that the award of retroactive seniority constructively altered the date of original appointment of the beneficiaries.[24]
D. The Fairness Hearing and Magistrate Judge Levy's Memorandum and Order
Paragraph 34 of the Agreement required the parties to request the Court to conduct a "fairness hearing" to consider all objections to the Agreement and "resolv[e] all disputes regarding the proposed conversion of Offerees from provisional to permanent status and granting of retroactive seniority, so that the Settlement Agreement may be entered by the Court."[25] On March 4, 1999, the Court authorized Magistrate Judge Levy to conduct the hearing, see United States v. New York Bd. of Educ., CV-96-374 (E.D.N.Y. Mar. 4, 1999), which took place on May 27, 1999. On June 2, 1999, the parties, pursuant to 28 U.S.C. § 636(c), conferred jurisdiction on the magistrate judge to render a final judgment.
Prior to the hearing, the parties published notice of the Agreement in various newspapers and provided actual notice of the Agreement to more than 2,000 individuals, advising that any objections had to be filed by April 27, 1999. The notices resulted in objections by over 300 individuals, as well as a motion to intervene pursuant to Fed.R.Civ.P. 24(a) by the Brennan intervenors.
In a comprehensive decision rendered on February 9, 2000, Magistrate Judge Levy approved the Agreement and entered it as a consent judgment. See New York City Bd. of Educ., 85 F.Supp.2d at 133. Recognizing that "voluntary settlements in Title VII cases enjoy a presumption of validity," especially "when the consensual 414 agreement at issue has been reached by a federal government agency *414 charged with protecting the public interest and seeing that anti-discrimination laws are enforced and violations remedied[,]" id. at 137, the magistrate judge identified the standard of review as "whether the proposed agreement is lawful, fair, reasonable, adequate, and consistent with the public interest," id. at 136 (citing EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884 (7th Cir.1985), and Vulcan Soc'y v. City of New York, 96 F.R.D. 626 (S.D.N.Y.1983)), adding that where, as here, a settlement agreement implements race-conscious remedies, "the court reviewing the settlement must determine whether (1) there is an existing condition that serves as a proper basis for the creation of raceconscious remedies; and (2) the specific remedies of the Compromise agreement are reasonable and lawful." Id. (citing Kirkland v. New York State Dep't of Corr. Servs., 711 F.2d 1117 (2d Cir.1983)).
Statistically significant disparities led Magistrate Judge Levy to conclude that the United States had established a prima facie case of disparate-impact discrimination for each of the three exams, as well as for the recruitment for the exams. With respect to the testing claims, Magistrate Judge Levy set forth, for each exam, the pass rates of whites, blacks and Hispanics in the relevant labor market, and then found the differences in the pass rates for blacks and Hispanics, as compared to whites, to be statistically significant. With respect to the recruiting claim, Magistrate Judge Levy relied upon Dr. Ashenfelter's "undisputed" and "unrebut[ted]" report. See id. at 143-45.
Next, Magistrate Judge Levy determined that the Agreement was fair and reasonable since it averted "a complex, expensive, and lengthy trial[,]" id. at 146, and because the retroactive-seniority provisions were "entirely consistent with and clearly m[et] Title VII's objective of eradicating discrimination." Id. at 147. In that latter regard, he reasoned:
[T]he relief is narrowly tailored, as only persons who are qualified for the positions of Custodian and Custodian Engineer will receive remedial relief, and no current permanent employee will be displaced. Indeed, the number of Offerees who will receive permanent positions is quite small in comparison with the number of individuals who may have been afforded relief had this matter proceeded to final adjudication. Plus, the Agreement does not establish any permanent numerical requirements or quotas; once the Offerees are converted to permanent status with retroactive seniority, the defendants will be required to recruit minority and female candidates actively and to

hire on a nondiscriminatory basis, but will not be required to achieve or maintain any specific percentage of minorities or women in the relevant workforce.
Id. at 147.
Magistrate Judge Levy rejected the objections by "current permanent employees who allege[d] that retroactive seniority for the Offerees may adversely affect their relative seniority rights. . . ." Id. at 147. In doing so, he relied on Dr. Siskin's "unchallenged" opinion that the granting of retroactive seniority would have, at worst, a "limited" economic impact on custodial employees; the magistrate judge concluded, therefore, that "the impact of this relief on the incumbent [custodial employees] w[ould] be minimal and dispersed, and [thus,] the remedy [was] unquestionably legal and reasonable." Id. at 149-51.
Additionally, Magistrate Judge Levy denied the proposed Brennan intervenors' intervention motion, rejecting their argument that they had an absolute right to intervene because they were adversely affected by the Agreement. 415 The crux of his *415 reasoning was his belief that the Offerees were basically being restored to the employment rights they would have enjoyed if not for the Board's unlawful discriminatory practices. See id. at 155.
Following Magistrate Judge Levy's approval, the Board notified 63 Offerees that they were entitled to relief under the Agreement.[26] Each Offeree had the option to consent to the Agreement or to pursue claims against the Board by withholding consent. See Agreement ¶ 40. Fifty-nine of the Offerees consented, one declined, and three resigned. See Dec. 23, 2004 Decl. of Emily Martin, Ex. 54 (Apr. 8, 2002 Decl. of James Lonergan) ¶ 7. According to a "Relief Chart" prepared by the United States, 31 of the accepting Offerees were awarded relief under the recruiting claim; of that group, 12 received relief based on race or national origin, and 19 based on gender. See Nov. 15, 2004 Statement of Michael E. Rosman, Ex. 54 (Relief Chart for United States Response to Contention Interrogatories) ("Relief Chart").[27] The remaining 28 were awarded relief under the testing claims, all based on their race or national origin. See id.
The Board awarded the consenting Offerees relief under the Agreement on the dates that it received the Offerees' acceptances, which ranged from February 22 to March 14, 2000; thus, accepting Offerees who were still provisional employees received permanent-employee status some-time in between those two dates. See id., Ex. 50 (U.S. v. Board of Ed. Relief Granted). The Board thereafter fully implemented the Agreement.
E. The Second Circuit's Remand
The proposed Brennan intervenors appealed the denial of their intervention motion. On August 3, 2001, the Second Circuit vacated Magistrate Judge Levy's consent judgment, holding that the proposed Brennan intervenors' intervention motion should have been granted. See New York City Bd. of Educ., 260 F.3d at 129. In doing so, it noted that "where a proposed intervenor's interests are otherwise unrepresented in an action, the standard for intervention is no more burdensome than the standing requirement, and that appellants' interest in the underlying action and the Agreement is for purposes of standing identical to that of the Offerees." Id. at 131 (citation omitted).
Commenting that the magistrate judge's ruling had "put the cart before the horse" by holding that the proposed Brennan intervenors' interest was insufficient because their employment status and seniority rights "were presumptively obtained as the result of discriminatory practices[,]" id. at 129 (emphasis added), the court explained that "while the presumption of validity of a settlement agreement may shift the burden of showing 416 invalidity [of the Agreement] to non-party objectors, it carries *416 no weight in the determination of whether an interest is sufficient for intervention under Rule 24(a)." Id. at 129-30. In that regard, the circuit court explained that Rule 24(a) "requires not a property interest but, rather, `an interest relating to the property or transaction which is the subject of the action[J'" id. at 130 (quoting Rule 24(a)(2)), and held that the proposed Brennan intervenors possessed such an interest because they claimed that the Agreement was "not justified by any demonstrated past discrimination and that their loss of relative seniority as a result of the Agreement is itself impermissible discrimination." Id. at 130.
The circuit court also noted that the proposed Brennan intervenors' interest in their seniority was "cognizable under Rule 24(a)(2)" because "the effects of a loss of relative seniority rights should not be regarded as too

speculative and remote to justify intervention save, perhaps, in a case where a concrete effect on an employee is impossible." Id. at 131-32. The court explained, as an example, how seniority would adversely affect the proposed Brennan intervenors' ability to transfer:
If a [Beneficiary] obtains a desirable transfer, all comparable employees with more seniority than [a Brennan intervenor] but less than that of the [Beneficiary] may seek transfers at the next level of desirability, thereby foreclosing the particular appellant. The effects of the loss of relative seniority are not easily forecast and may not even be perceived as they happen. To take an alphabetical example, if employee Z is moved up to just above employee A, then the effects of that move on employee T will turn on the preferences of employees A through S. Where transfers among buildings are concerned, size (and therefore salary) will be important in determining whether an employee will exercise seniority to seek a transfer, but some employees will also be motivated by other factors, such as location. If employee Z secures a transfer, a chain reaction will begin with various openings and transfers occurring based on a variety of decisions by A through S. After all is played out, employee T may well find it impossible to reconstruct what transfer might have been available to him/her but for the moving-up of employee Z.
Id. at 132.
The circuit court declined to rule on the merits of Magistrate Judge Levy's consent judgment because the proposed Brennan intervenors had "argued convincingly that they were denied the opportunity to develop a record that would have permitted a full and appropriate ruling on the fairness and constitutionality of the Agreement." Id. at 133.[28] Accordingly, the court acknowledged that "the best course [was] to remand the case to allow for a full development of the record." Id.
F. The Post-Remand Interventions
1. The Brennan Interventions
After the case was remanded, the Brennan intervenors, now having attained that status as a consequence of the circuit court's decision, filed a complaint in intervention asserting that the challenged provisions violated Title VII and the Fourteenth Amendment; the United States and the Board moved to dismiss the complaint. On February 417 28, 2002, before that motion was fully briefed, Magistrate Judge Levy, *417 with consent from the United States, the Board and the Brennan intervenors, approved the Agreement except for the challenged provisions (i.e., Paragraphs 13-16).
Subsequently, Magistrate Judge Levy noted that the Brennan intervenors had maintained that "they ha[d] no intention of attempting to establish liability against any party . . . and that they d[id] not . . . seek any remedy in this case other than a judgment denying approval of [the challenged provisions]"; consequently, he ruled that "[t]o the extent that [the Brennan intervenors' complaint in intervention] could be interpreted as asserting legal claims against any party, they are stricken" and that "[t]he Intervenors' pleading w[ould] be redesignated as `Objections in Intervention,' and . . . w[ould] not require a responsive pleading from either the United States or the [Board]." United States v. New York City Bd. of Educ., C96-374, slip op. at 11-12 (E.D.N.Y. Sept. 30, 2002). The Brennan intervenors timely objected to Magistrate Judge Levy's ruling; they also invoked their rights as parties to the action to object to the magistrate judge's jurisdiction to render a final determination, thereby placing the litigation back in the hands of the Court.
2. The Caldero and Arroyo Interventions
In April 2002, subsequent to the Second Circuit's remand, the United States decided that it would no longer defend the lawfulness of the Agreement's remedies for those beneficiaries who had not taken any of the challenged exams. On June 17, 2003, the parties entered into a stipulation, "so ordered" by the Court, permitting intervention by the Caldero intervenors, being "a group of 22 beneficiaries who received permanent appointments and/or retroactive seniority under the Agreement pursuant to the United States' recruiting claim." United States' Mem. of Points and Authorities in Response to this Court's Order of July 20, 2004 ("United States Mem. of Law") at 6. Then, in September 2003, the United States decided that it would no longer defend the grant of retroactive

seniority provided to the beneficiaries who took and failed the exams unless it was "make-whole" in nature. The Court consequently granted intervention to the Arroyo intervenors, see Minute Entry of July 9, 2004, "a group of nine beneficiaries who received permanent appointments and/or retroactive seniority under the Agreement pursuant to the United States' testing claim." United States' Mem. of Law at 6.
G. Post-Remand Challenges By The Brennan Intervenors
1. Challenges to the Reputed Protected Class
According to the Brennan intervenors, four of the beneficiaries 0907Kevin LaFaye, Steven Lopez, and brothers Anthony and Nicholas Pantelides0907were not Hispanic because, although they had at least one parent or grandparent of Hispanic origin, they lacked any strong cultural or linguistic ties to that group. Additionally, the Brennan intervenors contended that Ciro Dellaporte ("Dellaporte"), one of the 12 males who received relief under the recruiting claim, was not a member of any protected class; although identified as Hispanic in the Board's records, Dellaporte was of Italian ancestry and had no cultural or linguistic ties to a Spanish-speaking country.
LaFaye's father was born in Puerto Rico, as was the mother of the Pantelides brothers; one of Lopez' grandparents was born in Mexico. None of the four spoke Spanish; however, Spanish was spoken in LaFaye's 418 childhood home and the Pantelides *418 brothers' mother generally spoke Spanish to their maternal grandmother.
By contrast, none of Dellaporte's parents or grandparents was born in a Hispanic country; moreover, he never identified himself as Hispanic. Eventually, the Board realized that Dellaporte was not entitled to relief under the Agreement. See Defs.' Mem. of Law in Opp. to Brennan Intervenors' Objections at 63 n. 26 ("Defendants do not defend [Dellaporte's] appointment as part of the remedy in this case.").
2. Challenges to the Testing Claims
a. Proof of Discrimination
The Brennan intervenors concede that Ex'am Nos. 5040 and 1074 had a disparate impact on blacks and Hispanics. They further concede that Exam No. 8206 had a disparate impact on blacks. They dispute, however, that it had a disparate impact on Hispanics; if correct, Luis Torres, the one Hispanic allegedly adversely affected by that exam, see Relief Chart, should not have received any relief.
The Brennan intervenors' challenge regarding Exam No. 8206 was based on the opinion of Dr. Phillip Bobko ("Dr. Bobko"), an expert retained by the Board at a time when it was disputing the United States' claims. According to Dr. Bobko, there was not a statistically significant disparity for Hispanics on Exam No. 8206 when unqualified test-takers (i.e., those who lacked the minimum qualifications based on a review of the applicants' experience papers) were removed from the population. Because the Board initially made qualification determinations only for test-passers, Dr. Bobko had to derive the number of unqualified test-failers based on data generated from a posthoc review conducted by the Board.[29] Dr. Bobko calculated that when unqualified test-takers were removed, the pass rate of Hispanics was 89.3% of the pass rate of whites.[30]
Drs. Siskin and Cupingood opined that the Board's post-hoc review was not a "credible" basis for determining which test-takers were unqualified because, unlike test-passers, test-failers could not administratively appeal an adverse determination. Jan. 10, 2005 Decl. of Charles E. Leggott, Ex. 22 (Drs. Siskin and Cupingood's May 1, 2003 Comments on Dr. Scharf's Report) at 4. Instead, Drs. Siskin and Cupingood calculated pass rates for a population composed of qualified test-passers (since the number of unqualified test-passers was known) and all test-failers (since the number of unqualified test-failers was unknown); for this population, the pass rate of Hispanics was 77.7% of the pass rate of whites, a disparity of 2.51 standard deviations.
In addition, Drs. Siskin and Cupingood calculated pass rates based on three alternative assumptions: (1) the percentage of unqualified test-failers equaled the percentage of unqualified test-passers; (2) the percentage of unqualified test-failers was twice the percentage of unqualified test-passers; and (3) the percentage of unqualifled 419 *419 test-failers was three times the percentage of unqualified test-passers. Given those assumptions, the pass

rate of Hispanics was, respectively, 82.5%, 88.4%, and 95.2% that of whites, resulting in disparities of between 1.95 and 0.37 standard deviations.
b. Non-Victims of Discrimination
The Brennan intervenors acknowledge that seven of the beneficiaries were victims of discrimination under the testing claims and received appropriate make-whole relief: Lloyd Bailey, Joseph Christie, Belfield Lashley, Gilbert Rivera, Peter Robertin, Felix Torres and Mayra Zephrini (Cintron). They contend, however, that the beneficiaries that fall into the following categories received relief under the Agreement that went beyond what they would have received but for discrimination:
First, some of the beneficiaries who were afforded relief under the testing claim took and passed one of the challenged exams, but failed other parts of the hiring process. For example, the Brennan intervenors claim that Nicholas Pantelides passed the challenged exam but failed the associated practical exam, and that Stephen Lopez passed the challenged exam but was rejected as a result of his experience papers. If true, these individuals would not qualify as victims of discrimination because they passed the exam that allegedly discriminated against them.
Second, some black and Hispanic beneficiaries who were afforded relief under the testing claims passed the first challenged exam that they took, and were hired. If so, those individuals would not be victims of discrimination because they passed the exam that allegedly discriminated against them; furthermore, the Brennan intervenors contend that awarding them retroactive seniority to a date earlier than their date of hire put them in a position better than they would have been in but for discrimination.
Third, some of the beneficiaries who were afforded relief under the testing claims would have failed other parts of the hiring process even if they had passed the exam. This contention was based on the Board's post-hoc inquiry of the beneficiaries' qualifications.[31] Awarding relief to individuals who would have failed other parts of the hiring process would go beyond make-whole relief because it would put them in positions better than they would have been in but for the discrimination.
Finally, some of the beneficiaries were awarded retroactive seniority from the date they were hired as provisional hires, as opposed to the median hire date, even though their provisional hire date occurred before any individual was hired from the eligibility list for the discriminatory exam. For example, the Brennan intervenors contend that Jose Casado took and failed Exam No. 1074, but was hired as a provisional Custodian on June 16, 1995; the first person hired off the list associated with Exam No. 1074 had a reporting date of March 27, 1997 (almost two years after Casado was hired); nonetheless, Casado was afforded relief under the testing claims, and received a 420 retroactive seniority date of June 16, 19950907before he could have been hired but for discrimination (i.e., *420 March 27, 1997). If true, awarding such relief put those individuals in positions better than they would have been in but for discrimination.[32]
3. Challenges to the Recruiting Claim
a. Proof of Discrimination
After the circuit court's remand, the Brennan intervenors retained their own expert, William J. Carrington, Ph.D. ("Dr. Carrington"), to review Dr. Ashenfelter's report. In Dr. Carrington's report, he noted that there were two alternative explanations for the disparity found by Dr. Ashenfelter: (1) the significant minimum qualifications required (e.g., females were significantly under-represented in the occupations that Dr. Ashenfelter identified as the most common ones among applicants), and (2) different interests in Custodial Positions; he also noted that Dr. Ashenfelter did not account for English-language proficiency. Additionally, Dr. Carrington posited that the statistics might not be reliable because of the small sample size of the census data for certain occupations, as well as temporal mismatches (i.e., the decennial census data yielded only data from 1980 and 1990 whereas Dr. Ashenfelter required data from the non-census years in which the challenged exams were administered-1985, 1989 and 1993).

Thereafter, the Board retained an expert, Amy Henderson, Ph.D. ("Dr. Henderson"), to review Dr. Carrington's report. Dr. Henderson noted that Dr. Carrington did not "offer [any] new statistical evidence" and "never tested] the implications of his criticisms." Dec. 23, 2004 Decl. of Emily Martin, Ex. 34 (A Critique of William J. Carrington's Report of Findings) at 2. For example, with regard to Dr. Carrington's claim that English proficiency might have accounted for the discrepancy between actual and expected test-takers, Dr. Henderson tested that claim against the data for Exam No. 8206 and found that English proficiency was not a significant factor.
The Caldero intervenors also retained an expert, Joyce P. Jacobsen, Ph.D. ("Dr. Jacobson"), to review the reports of Drs. Ashenfelter and Carrington. Dr. Jacobsen concluded that Dr. Ashenfelter's approach was "reasonable" because it used the best available data, and that the results were "statistically significant[,] supporting the hypothesis of a systematic shortfall in the proportions of minorities and women applying for [custodial positions]." Dec. 14, 2004 Decl. of Joyce P. Jacobsen ¶ 12; id., Ex. 1 at 2. With regard to Dr. Carrington's report, like Dr. Henderson, Dr. Jacobsen concluded that it was "unconvincing and d[id] not provide alternative calculations." Id. ¶ 12.
In addition to challenging the statistical evidence of disparities, the Brennan intervenors also argue that there was no evidence that the disparities were caused by the Board's recruiting practices. In this regard, they rely on information provided by the Board during discovery: Each exam was published in The Chief, the City's civilservice newspaper. In addition, the Board's Office of Recruitment distributed "Exam for Jobs" booklets to 421 agencies and organizations on its mailing lists; during the relevant time periods, the *421 list comprised 1,300 to 3,000 persons and organizations, including "libraries, colleges, high schools, community-based organizations, community boards throughout [New York] City, human resources administrations, Training Assessment and Placement centers, organizations serving the disabled communities such as the Federation of Employment and Guidance Services, certain trade schools, and youth organizations throughout the City such as YMCA and Boys Clubs." Nov. 15, 2004 Statement of Michael E. Rosman, Ex. 26 (Defs.' Responses and Objections to the Caldero Intervenors' First Interrogatories to Defs.) at 4. The Board also posted notices within its own agencies. See id., Dep. Exs. (Ro senfeld Dep. Tr. at 13, 33-34).
b. Non-Victims of Discrimination
The Brennan intervenors maintain that some of the Asian and female beneficiaries who were afforded relief under the recruiting claim took the first challenged exam for which they were qualified. They reason that those individuals who learned about the first exam and took it did not suffer from any recruiting discrimination; those individuals who took the first exam for which they were qualified, but received retroactive seniority to an earlier date, were awarded relief that went beyond make-whole relief because it put them in positions better than they would have been in but for discrimination.
H. Issues Briefed
On July 20, 2004, the Court issued an order setting a briefing schedule and instructing the parties to address four issues:
(1) Can paragraphs 13-16 of the settlement agreement be entered as a consent judgment?
(2) If so, what legal standard governs judicial approval or disapproval of paragraphs 13-16?
(3) If not, what legal standard governs the review of the legality of the benefits awarded pursuant to paragraphs 13-16?
(4) Does the evidence meet the applicable standard?
Order of July 20, 2004, at 2. These issues were fully briefed by May 2005, and the Court held oral argument on October 6, 2005.
DISCUSSION

Preliminary Matters
A. Brennan Intervenors' Status
Magistrate Judge Levy improperly relegated the Brennan intervenors to the status of objectors-in-intervention, rather than parties to the litigation, and redesignated their complaint as "Objections in Intervention"; therefore, he ruled that responsive pleadings would not be required. Given that the Brennan intervenors seek to enjoin the implementation of those parts of the Agreement affecting their seniority rights, and the circuit court's recognition that they had standing to do so, they are entitled to the status of full, unqualified parties to the litigation. Cf. McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir.1998) ("A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.").[33]
422 *422 B. Effect of the Summary Judgment Motions on Action II
That the United States and the Board have not until now had an opportunity to interpose an answer to the Brennan intervenors' complaint does not preclude the Court from addressing the legality of the Agreement; the parties have moved for summary judgment regarding its validity, and it is well-settled that issue need not be joined as a predicate for seeking summary judgment. See Fed.R.Civ.P. 56 ("A party seeking to recover upon a claim . . . may, at any time after the expiration of 20 days from the commencement of the action . . ., move . . . for a summary judgment in the party's favor upon all or any part thereof." (emphasis added)).
Even though the summary judgment motions are directed only to Action I, the focused issue they address 0907the legality of the Agreement is 0907 common to both actions, which have been consolidated under Fed R. Civ. P. 42(a). The central purpose of that rule is to give the court broad discretion to manage its docket "so that the business of the court may be dispatched with expedition and economy while providing justice to the parties." 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2381 (2d ed.1995). The Court will exercise that discretion since resolution of the summary judgment motions in Action I applies with equal force to Action II; it will also best serve the interests of all parties, as well as the effective and expeditious administration of justice, to facilitate the end of this decade-long litigation.
C. Protected Class
The Brennan intervenors claim that five of the 59 beneficiaries are not members of a protected class because each lacks the requisite cultural or linguistic ties to qualify as Hispanic.
The Economic Employment Opportunity Commission ("EEOC") "defines national-origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group," 29 C.F.R. § 1606.1 (emphasis added); therefore, an ancestral place of origin is sufficient to establish membership in a protected class.
Under the EEOC's definition of national origin, Dellaporte did not qualify because the Board, which no longer defends his appointment, improperly listed him on its records as Hispanic; plainly, he is of Italian ancestry and has no Hispanic cultural or linguistic ties. He is, therefore, not entitled to any benefits under the Agreement. However, the remaining four0907LaFaye, Lopez and the Pantelides brothers 0907 do qualify because LaFaye's father and the Pantelides' mother were born in Puerto Rico, and Lopez's grandfather was born in Mexico.[34]
423 *423 Title VII
Consistent with the doctrine of constitutional avoidance, the Court will first determine whether the Brennan intervenors' Title VII rights have been violated before addressing their Fourteenth Amendment claims. See Bechtel v. Competitive Technologies, Inc., 448 F.3d 469, 476 (2d Cir. 2006) ("A fundamental and long-standing

principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." (citations and quotations omitted)).
A. Statistical Basis For the Affirmative-Action Plan
Both disparate treatment and disparate impact claims are cognizable under Title VII. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (explaining that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation"); Robinson v. Metro-North Commuter RR Co., 267 F.3d 147, 160 (2d Cir.2001) ("[W]here the inquiry in a pattern-or-practice disparate treatment claim is focused on determining the existence of discriminatory intent, disparate impact claims are concerned with whether employment policies or practices that are neutral on their face and were not intended to discriminate have nevertheless had a disparate effect on the protected group.").
By pursuing its Title VII disparate-impact claims against the Board, the United States had the burden of establishing a prima facie case that the Board engaged in "a particular employment practice that cause[d] a disparate impact on the basis of race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(k)(1)(A)(i). To make that showing, it had to "(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two." Robinson, 267 F.3d at 160. A disparate impact and its causal relationship to an employment practice is usually established by statistical evidence, which (1) must reveal "that the disparity is substantial or significant," and (2) must be "of the kind and degree sufficient to reveal a causal relationship between the challenged practice and the disparity." Id. (citations omitted). The employer can rebut that prima facie burden "by introducing evidence to show that either no statistically significant disparity in fact exists or the challenged practice did not cause the disparity." Id. at 161. Alternatively, it may refute the requisite causal connection by "demonstrating a business justification for the policy or practice." Id.
Seeking to satisfy its prima facie burden in its Title VII action challenging the Board's employment practices, the United States adduced significant statistical evidence. Although the litigation was settled before an adjudication as to whether the United States had sustained its burden, these statistics serve to satisfy the requisite evidentiary showing by the Board in the face of the Brennan intervenors' own Title VII claim challenging the Agreement, except as it relates to the testing claim involving Exam No. 8206.
424 As the Supreme Court made clear in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 *424 S.Ct. 1442, 94 L.Ed.2d 615 (1987), drawing upon its prior decision in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), an employer seeking to justify the adoption of an affirmative-action plan in the face of a challenge under Title VII need not point to its own prior discriminatory practices, nor even to evidence of an "`arguable violation' on its part[,]" 480 U.S. at 630, 107 S.Ct. 1442; rather, "it need point only to a `conspicuous imbalance . . . in traditionally segregated job categories,'" so long as the plan does not "unnecessarily trammel" the interests of those adversely affected by the plan. Id. at 630, 638, 107 S.Ct. 1442.
Johnson equated "conspicuous imbalance" with "manifest imbalance," and held that "in determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer's work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise," id. at 631-32, 107 S.Ct. 1442; however, "[w]here a job requires special training . . . the comparison should be with those in the labor force who possess the relevant qualifications." Id at 632, 107 S.Ct. 1442.
As the majority opinion in Johnson explained, "[a] manifest imbalance need not be such that it would support a prima facie case against the employer[,]" since it "d[id] not regard as identical the constraints of Title VII and the Federal Constitution on voluntarily adopted affirmative action plans." Id. In so holding, the Court rejected the view of Justice O'Connor in her concurring opinion that "the proper initial inquiry in evaluating the legality of an affirmative action plan by a public employer under Title VII is no different from that required by the Equal Protection Clause[,]" namely that "the employer must have had a firm basis for believing that remedial action was required," which she equated to proof "sufficient to support a prima facie claim under Title VII." Id. at 649, 107 S.Ct. 1442 (O'Connor, J., concurring). The majority opinion's rationale for embracing the manifest imbalance standard, rather than requiring the employer to meet the more demanding prima facie burden needed to establish

a Title VII disparate impact, was that "[a]pplication of the `prima facie' standard in Title VII cases would be inconsistent with Weber's focus on statistical imbalance, and could inappropriately create a significant disincentive for employers to adopt an affirmative action plan." Id. at 632-33, 107 S.Ct. 1442.

Thus, the "manifest imbalance" test differs from a prima facie case of disparate impact in two important respects: First, as Johnson makes clear, the requisite magnitude of the disparity is less under the "manifest imbalance" test, although just how much less is unclear. See David E. Meyer, Note: Finding a "Manifest Imbalance": The Case for A Unified Statistical Test for Voluntary Affirmative Action under Title VII, 87 Mich. L.Rev.1986 (June 1989) (noting that apart from observing in Johnson that an imbalance need not be severe enough to support a prima facie case of discrimination, "[t]he Court has not gone further . . . in defining a floor beneath which an imbalance will not be considered sufficiently `manifest.'").[35]

425 *425 Second, the statistical evidence need not establish a causal connection between the disparity and any challenged employment practice; as explained in Johnson, this latter difference "between the `manifest imbalance' and `prima facie' standards is illuminated by Weber." 480 U.S. at 633 n. 10, 107 S.Ct. 1442. The affirmative-action plan in Weber was implemented to remedy the gross under-representation of blacks among the skilled craftworkers at one of the employer's plants; the disparity existed, not because the employer had refused to hire qualified blacks, but "[b]ecause blacks had long been excluded from craft unions." 443 U.S. at 198, 99 S.Ct. 2721. The Supreme Court upheld the plan because it "f[ell] within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous [i.e., manifest] racial imbalance in traditionally segregated job categories." Id. at 209, 99 S.Ct. 2721. By contrast, the prima facie standard0907with its insistence on a causal connection between the disparity and a practice attributable to the employer0907"would have invalidated the plan in Weber itself." Johnson, 480 U.S. at 633 n. 10, 107 S.Ct. 1442.

1. Testing Claims

Except in respect to Exam 8206, affecting the one Hispanic, Luis Torres, the Court need not reflect upon the nuanced differences between a manifest imbalance and a prima facie disparate impact since the Board's statistical evidence, adduced by the United States in its litigation against the Board, satisfied the higher prima facie standard, which has not been overcome by the Brennan intervenors' challenges.[36]

The Second Circuit has explained that it primarily relies upon two methods to evaluate prima facie disparities under Title VII, namely the "four-fifths" (or 80%) rule and the "two standard deviations" rule:

First, we have considered persuasive the EEOC Guideline [29 C.F.R. § 1607.4D] that states that:

A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty

426

percent) of the rate for the group with the highest *426 rate will generally be regarded by Federal

enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will

generally not be regarded by Federal enforcement agencies as evidence of adverse impact.

Smaller differences in selection rate may nevertheless constitute adverse impact, where they are

significant in both statistical and practical terms. . . .

As an alternative measure of differences between groups, we have also looked to whether the plaintiff can show a statistically significant disparity of two standard deviations. . . . Courts generally consider this level of significance sufficient to warrant an inference of discrimination.

Although courts have considered both the four-fifths rule and standard deviation calculations in deciding whether a disparity is sufficiently substantial to establish a prima facie case of disparate impact, there is no one test that always answers the question. Instead, the substantiality of a disparity is judged on a case-by-case basis.

Smith v. Xerox Corp., 196 F.3d 358, 365 (2d Cir.1999) (internal citations omitted; emphasis added), overruled on other grounds by Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 141 (2d Cir. 2006). These rules of thumb go only to the magnitude of the disparity; they have no bearing on whether the disparity is attributable to the employer's actions. See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1277-78 (11th Cir.2000) (rejecting

Title VII challenge despite significant disparity between employer's "female hiring percentage (0%) [and] the percentage of women in the qualified labor market (31.9%)," because EEOC failed "to show a causal link between some facially-neutral employment practice . . . and the statistical disparity" (emphasis omitted)).
The pass rates for blacks on the three challenged exams ranged between 23.3% and 58.8% of the pass rates for whites; these disparities varied from the expected results by between 5.14 and 13.85 standard deviations. See Table, supra pp. 407-08. Under both a "four-fifths" analysis and a "two standard deviations" analysis, this statistical evidence is unquestionably sufficient "to serve as a predicate for a voluntary compromise containing race-conscious remedies." Kirkland, 711 F.2d at 1130. The results for two of the exams are likewise adequate to justify affirmative action for Hispanic test-takers: Hispanics passed Exam No. 5040 and Exam No. 1074 at roughly 50% the pass rate of whites, a disparity amounting to approximately 8 standard deviations. See Table, supra pp. 407-08.
In the face of these statistics, the Brennan intervenors concede that there was, as to blacks, a manifest imbalance on all three exams, and, as to Hispanics, a manifest imbalance on Exams No. 5040 and 1074, see October 6, 2005 Oral Argument Tr. at 29 ("MR. COLANGELO: Speaking specifically to the testing claims, the United States' testing claims which affect the Arroyo intervenors, there's a concession of the disparate impact in three of the exams as they affected African-Americans, two of them as they affected Hispanic test takers. The Court: That's true, Mr. Rosman, correct? MR. ROMAN: Yes, it is."); they argue, however, that, as to Hispanics, Exam 8206 did not result in a manifest imbalance.[37]
427 *427 As recounted in the Background section, the effect of Exam No. 8206 on Hispanics when unqualified testtakers are removed from the equation is in dispute; depending on the methodology employed by the experts to ascertain the number of unqualified test-takers, qualified Hispanics passed the exam at anywhere between 77.7% and 95.2% the rate of whites, resulting in discrepancies of between 0.37 and 2.51 standard deviations. Faced with these inconsistencies, the Court cannot determine as a matter of law that Exam No. 8206 resulted in the requisite manifest imbalance to warrant affirmative-action relief for the one affected Hispanic; accordingly, a hearing is required to resolve this issue.
2. Recruiting Claim
The disparities underlying the United States' recruiting claim0907that is, the differences between the expected and actual numbers of black, Hispanic, Asian and female test-takers0907ranged from 2.76 to 12.81 standard deviations. See Tables, supra pp. 408-09. Notably, these discrepancies were not calculated simply by comparing the number of minorities and women who took the exams to the number of minorities and women in the general labor pool; rather, Dr. Ashenfelter used previous occupations as a proxy for work experience to derive comparators of qualified minorities and women.
Since there were at least two standard deviations between the actual and expected number of qualified testtakers, the evidence was sufficient to establish for each exam a manifest imbalance in the traditionally segregated custodial positions. The Brennan intervenors do not claim otherwise, but challenge the statistics on other grounds, contending that they do "not take into account the qualifications and interest of those in [Dr. Ashenfelter's] comparator group," see Brennan Intervenors' Mem. of Points and Authorities in Response to this Court's July 20 Order ("Brennan Intervenors' Mem.") at 57-58, and do not establish a causal relationship. See id. [38]
Although the Brennan intervenors' expert sought to undermine Dr. Ashenfelter's report, the Brennan intervenors have not presented any evidence to countermand Dr. Ashenfelter's statistical analysis or his basis for arriving at his comparators. It was not necessary for the Board to "rule out all other variables to prevail," United States v. City of Warren, 138 F.3d 1083, 1094 (6th Cir.1998) (citations omitted); rather, as the party bearing "[t]he burden of proving [the plan's] invalidity," Johnson, 480 U.S. at 627, 107 S.Ct. 1442, it was incumbent on the Brennan intervenors to present evidence that was "more accurate, valid, or reliable than the [Board's] evidence." Robinson, 267 F.3d at 161; see also EEOC v. Joint Apprenticeship Comm. of Joint Industry Bd. of Elec. Industry, 164 F.3d 89, 98 (2d Cir.1998) (noting that statistical evidence of disparate impact could not be debunked by

"unsupported conjectures and assertions" that other, non-discriminatory factors would explain the disparities). This they have failed to do.
Nor was it necessary for the Board to establish a causal relationship between the manifest imbalance and its 428 recruiting practices since, once again, as Johnson explained, *428 the employer "need not point to is own prior
discriminatory practices." 480 U.S. at 630, 107 S.Ct. 1442.
B. Relief
As for those beneficiaries who were not actual victims of discrimination, the Brennan intervenors' argue (1) that the grant of retroactive seniority to non-victims is never permissible as part of an affirmative action program; (2) alternatively, that the seniority awards in all respects unnecessarily trammel their rights.[39]
As for the first argument, the Supreme Court in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), left open the issue as to whether an employer can voluntarily adopt an affirmative-action plan awarding retroactive seniority to non-victims of discrimination 0907specifically, preferential layoff protection0907without violating Title VII. See id. at 583, 104 S.Ct. 2576 ("Whether the City . . . could have taken this course without violating the law is an issue we need not decide.").[40] The Brennan intervenors correctly note that the Supreme Court has yet to address the issue, and rely on two Second Circuit cases to support their contention, Chance v. Board of Examiners, 534 F.2d 993 (2d Cir.1976), and Acha v. Beame, 531 F.2d 648 (2d Cir.1976). Their reliance is misplaced.
In Chance, the circuit court simply struck down racial seniority preferences because there was no showing under § 703(h) of Title VII, in the face of a bona fide seniority system, of an actual intent to discriminate against minorities. See 534 F.2d at 998 ("[T]he non-remedial distortion of a seniority system through preferential treatment based solely upon race is a form of reverse discrimination specifically proscribed by Congress.").[41] Acha involved a situation where there was adequate proof of racial discrimination; accordingly, the court held that the "[a]ward of seniority to those who had actually been discriminated against by the[] defendants is not a `preference' because of sex. It is rather a remedial device well within the broad power conferred on the district court by section 706(g)." Acha, 531 F.2d at 656 (citing 42 U.S.C. § 2000e-5(g)).[42]
429 *429 Chance and Acha, therefore, simply addressed situations where the circuit court had to determine whether the requisite discrimination under § 703(h) had been established to justify a district court's award of retroactive seniority to actual victims of discrimination. Nothing in those cases addressed the issue of whether a voluntary affirmative-action plan granting retroactive seniority to non-victims of discrimination would violate Title VII. In a similar vein, the Brennan intervenors' reliance upon Franks v. Bowman Transportation Company, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), and International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), is also miscast since, like Acha, they simply held that § 703(h) did not preclude a court from awarding retroactive seniority to actual victims of discrimination.
Stott's open question notwithstanding, there is nothing in Title VII that vitiates an affirmative-action plan granting preferential seniority to non-victims of discrimination; to hold otherwise would be anathema to the broad reach of Weber and Johnson, and the Supreme Court's explicit holding, subsequent to Stotts, in Local No. 93, Int'l Assoc. of Firefighters v. City of Cleveland, that "whatever the extent of the limits § 706(g) places on the power of the federal courts to compel employers and unions to take certain actions that the employers or unions oppose[,]" it "by itself does not restrict the ability of employers or unions to enter into voluntary agreements providing for raceconscious remedial action." 478 U.S. 501, 521, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986);[43]see also Paradise v. Prescott, 767 F.2d 1514, 1529 (11th Cir.1985) ("[N]either Section 706(g) nor the Stotts case, prevents a court from approving a consent decree that provides relief which is consistent with, but goes beyond, that authorized in the underlying statute." (citation omitted)).
Resolution of the validity of the retroactive seniority benefits in the present case for non-victims of discrimination should be governed, therefore, by the guidance provided by Weber and Johnson in determining whether the relief afforded by the Agreement unnecessarily trammeled upon the rights of the non-minorities. This requires discrete

consideration of the impact the preferential seniority accorded to those beneficiaries had on the Brennan intervenors' transfer rights, TCA credits and protection against layoffs.
In Weber, white workers brought a Title VII action against their private employer challenging the legality of an affirmative-action plan entered into between the employer and the employees' union under a collective bargaining agreement that reserved for black employees 50 percent of the openings in an in-plant craft training program until 430 the percentage of black *430 craftworkers at the plant was commensurate with the percentage of blacks in the local labor force. After noting that "Title VII's prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans," 443 U.S. at 208, 99 S.Ct. 2721,[44] the Court gave its approval to the plan without "defin[ing] in detail the line of demarcation between permissible and impermissible affirmative action plans." Id. It reasoned:
It suffices to hold that the challenged . . . affirmative action plan falls on the permissible side of the line. The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to `open employment opportunities for Negroes in occupations which have been traditionally closed to them.' At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require discharge of white workers and their replacement with new black hirees. (citation omitted). Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkers in the Gramercy plant approximate the percentage of blacks in the local labor force.
Id. at 208-09, 99 S.Ct. 2721.
In Johnson, the Court had the opportunity to consider the validity of an affirmative-action plan voluntarily adopted by a public agency in the face of a Title VII challenge by a male who was denied promotion in favor of a female where sex was the determining factor in her selection.[45] After finding that there was the requisite manifest imbalance, based on a showing that none of the 238 skilled craftworker positions in the Santa Clara County labor force were held by women, the Court, addressing the second branch of Weber, held that the plan did not "unnecessarily trammel[] the rights of male employees or create[] an absolute bar to their advancement" since it "merely authorize[d] that consideration be given to affirmative action concerns when evaluating qualified 431 applicants," *431 and that sex was simply "one of numerous factors" that were taken into account. 480 U.S. at 638, 107 S.Ct. 1442. Amongst the other factors were that (1) the plan did not involve quotas; (2) the non-minority had no absolute entitlement to the position and, consequently, the plan did not unsettle any legitimate, firmly rooted expectation; (3) although denied the promotion, the non-minority retained his employment at the same salary and seniority, and remained eligible for future promotions; and (4) the plan was intended to attain a balanced workforce, not maintain one. In concluding, the Court viewed the plan as "a moderate, flexible, case-bycase approach to effecting a gradual improvement in the representation of minorities and women in the Agency's work force." Id. at 642, 107 S.Ct. 1442. As such, it was "fully consistent with Title VII, for it embodie[d] the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace." Id.
1. Transfers and TCAs
Under Weber and Johnson the award of retroactive seniority to non-victims insofar as it affects transfers and TCAs passes muster under Title VII. In the first place, it has a limited effect: While being passed over for a transfer or a TCA is not inconsequential, it is less harsh than losing one's job or being required to accept a reduction in pay; in any event, there is no absolute entitlement by any employee to either of these benefits.
Moreover, neither race, national origin nor gender are "absolute bars" to advancement by the non-minorities; there are no quotas or set-asides for minorities and women on the transfer and TCA lists. With respect to transfers, seniority is only one factor; with respect to TCAs, seniority only affects the order in which TCAs are

awarded, not their frequency. And even when race, national origin or gender proves to be the deciding factor, the unsuccessful applicant remains eligible for future transfers and TCAs. Finally, the award is temporary it 0907 comprises a one-time benefit to current employees; future hirees will attain and accrue seniority without regard to race, national origin or gender.
The Court's conclusion is consistent with out-of-circuit cases receptive to affirmative-action plans granting preferential promotions in the face of Title VII challenges by non-minorities whose seniority rights were compromised by preferences bestowed upon minority non-victims. See, e.g., Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479, 487 (6th Cir.1985) (upholding affirmative-action plan that provided that remedial promotions would be made on basis of one non-minority to one minority appointee "even though the plan [had] the effect of overriding the seniority rights of non-minorities"); Kromnick v. School Dist. of Philadelphia, 739 F.2d 894, 911 (3d Cir.1984) (providing minorities certain preferences in transfers in order to maintain a target ratio of minority faculty to students); Prescott, 767 F.2d at 1514 (approving one-for-one promotional order entered by court in support of a voluntary consent decree).
2. Layoffs
In Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), the Supreme Court struck down under the Fourteenth Amendment an affirmative-action plan affording preferential layoffs to non-victims of discrimination. The plurality opinion, citing Stotts and Weber, noted that it had "previously 432 expressed concern over the burden that a preferential-layoffs scheme imposes *432 on innocent parties," id. at 282, 106 S.Ct. 1842, and explained:
In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.
Id. at 283-84, 106 S.Ct. 1842.
Although, as the Court subsequently explains in addressing the Brennan intervenors' constitutional challenges, the Board's grant of seniority benefits as to layoffs would not survive the Fourteenth Amendment's standards for race-and national-origin-based remedies, it also fails Title VII's unnecessary-trammeling test, which applies with equal force to affirmative-action plans based on race, national origin and gender.
Five circuit courts have passed upon the propriety of affirmative-action plans granting layoff preferences to nonvictims in the face of Title VII challenges. Three have approved, see Tangren v. Wackenhut Servs., Inc., 658 F.2d 705 (9th Cir.1981); Britton v. South Bend Community School Corp., 775 F.2d 794 (7th Cir.1985), rev'd on other grounds, 819 F.2d 766 (7th Cir.1987); Wygant v. Jackson Board of Educ., 746 F.2d 1152, 1157-58 (6th Cir.1984), rev'd on other grounds, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); however, they preceded Johnson, where the Supreme Court gave content to the unnecessarily-trammeling prong.
More significantly, the alteration of seniority rights impacting layoffs in each of those cases was sanctioned by a collective bargaining agreement ("CBA"). See Tangren, 658 F.2d at 707; Britton, 775 F.2d at 805; Wygant, 746 F.2d at 1157. A CBA is the culmination of negotiations between an employer and a union charged with representing the interest of all its members, minority and non-minority alike; as the Ninth Circuit noted in Tangren, "[s]eniority is merely an economic right which the unions may elect to bargain away." 658 F.2d at 707. It would be disingenuous for an employee to argue that an employer's affirmative-action plan had disrupted settled expectations when those expectations had been created by a CBA incorporating the plan.
By contrast, the two cases where the circuit courts disapproved did not entail collective bargaining agreements; moreover, they were decided after Johnson. In Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431 (10th Cir.1990), when a school district needed to lay off all but two of its social workers, the district opted to retain a black social worker because a school policy provided "[i]n the event of a reduction in force, the District shall make reasonable effort to maintain, as a minimum, the percentage of minority teachers employed within the district." The Tenth Circuit held that the plan unnecessarily trammeled the rights of non-minorities because each of the factors present in Johnson was absent, explaining:

In contrast to the plan in Johnson, the position given to [the minority employee] was earmarked for a black person to the exclusion of all other qualified persons. Second, the trial court found that plaintiff was entitled to the position given to [the minority employee] by virtue of her seniority. Third, the District's decision, which by its own terms was made to ensure employment of at least one black administrator, was intended to maintain rather than achieve a particular racial balance.
Id. at 440 (internal citations omitted).
433 The Third Circuit was faced with a similar situation in Taxman v. Board of Educ. *433 of Twp. of Piscataway, 91 F.3d 1547 (3d Cir.1996). There, a school district used race as a factor in selecting which of two equally qualified employees would be laid off. After holding that the layoff plan was not supported by a manifest imbalance in the employment of minorities, the court also held that the plan failed the "unnecessary trammeling" standard, explaining:
[W]e are convinced that the harm imposed upon a nonminority employee by the loss of his or her job is so substantial and the cost so severe that the Board's goal of racial diversity, even if legitimate under Title VII, may not be pursued in this particular fashion. This is especially true where, as here, the nonminority employee is tenured. In Weber and Johnson, when considering whether nonminorities were unduly encumbered by affirmative action, the Court found it significant that they retained their employment. We, therefore, adopt the plurality's pronouncement in Wygant that [w]hile hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives. That burden is too intrusive. Accordingly, we conclude that under the second prong of the Weber test, the. Board's affirmative action policy violates Title VII. In addition to containing an impermissible purpose, the policy unnecessarily trammel[s] the interests of the [nonminority] employees.
Id. at 1564-65 (citations and quotations omitted).
In the same vein as the Tenth Circuit in Cunico and the Third Circuit in Taxman, the Court concludes that, insofar as they affect layoffs, the seniority benefits provided by the Agreement unnecessarily trammel upon the rights of the Brennan intervenors because they impose too heavy a burden. And, unlike transfers and TCAs, which are subject to additional considerations unrelated to race, national origin or gender, such as job performance and availability, layoffs will be based solely on seniority.
The Agreement's effect on layoffs is materially different from the affirmative-action promotion approved in Johnson. First, layoffs entail loss of one's job, salary and eligibility for future advancement. Cf. Johnson, 480 U.S. at 638, 107 S.Ct. 1442 ("[W]hile petitioner . . . was denied a promotion, he retained his employment . . ., at the same salary and with the same seniority, and remained eligible for other promotions."). Second, while permanent employees have no entitlement to any particular transfer or TCA, they do, under New York law, have a legitimate expectation that layoffs will be based on seniority; altering this system to account for race, national origin or gender disrupts that expectation. Cf id. ("[D]enial of the promotion unsettled no legitimate, firmly rooted expectation on the part of petitioner."). Finally, layoffs would have the effect of maintaining, rather than attaining, a balanced workforce. Cf id. at 618, 107 S.Ct. 1442 ("There is ample assurance that the Agency does not seek to use its Plan to `maintain' a permanent racial and sexual balance.").
As noted, there were seven actual victims of the exams, and they are entitled to the layoff protection afforded by the award of permanent-employee status and retroactive seniority. However, there are not uncontroverted facts before the Court to determine if there are others; accordingly, a hearing is required. See, e.g., October 6, 2005 434 Oral Argument Tr. at 32 ("MS. MARTIN: I don't believe there needs to be any showing that each of the *434 beneficiaries were individual victims of discrimination in order for these awards to be approved. However, if your Honor were to disagree with that legal conclusion, we would seek a hearing so that we can put forward evidence of clients' individual victim claims."); id. at 18 ("MS. COTE: If the court rules retroactive seniority can only be given to identifiable victims, then you may have to have an evidentiary hearing on whether particular individual beneficiaries were also victims.").[46]

Fourteenth Amendment
The Court's analysis does not end at Title VII because it still must determine whether the grant of retroactive seniority, which passes muster under Title VII in all respects for all the beneficiaries within the protected class, other than in respect to preferential seniority accorded to non-victims for layoffs, violates the Fourteenth Amendment. "Although the obligations of a public employer under Title VII are similar to its obligations under the Federal Constitution, they are not the same," Edwards v. City of Houston, 37 F.3d 1097, 1110 (5th Cir.1994); therefore, "where the issue is properly raised, public employers must justify the adoption and implementation of a voluntary affirmative action plan under the Equal Protection Clause." Johnson, 480 U.S. at 620 n. 2, 107 S.Ct. 1442. Since, unlike Title VII, the Fourteenth Amendment requires the application of different standards for race and gender classifications, they must separately be considered.[47]
A. Race-Based Classifications
As Wygant makes clear, affirmative-action plans by state actors based on racial considerations are subject to strict-scrutiny analysis under the Fourteenth Amendment, requiring the state actor to establish (1) that there was a compelling interest for adopting the plan, and (2) that the plan was narrowly tailored to meet that interest. See Wygant, 476 U.S. 267 at 274, 106 S.Ct. 1842, 90 L.Ed.2d 260. Nonetheless, "there may be instances in which a public employer, consistent with both the Fourteenth Amendment as interpreted in Wygant and § 703 as interpreted in Weber, could voluntarily agree to take race-conscious measures in pursuance of a legitimate remedial purpose." Local No. 93, 478 U.S. at 518 n. 8, 106 S.Ct. 3063.
1. Compelling Interest For Race-Based Relief
In Barhold v. Rodriguez, 863 F.2d 233 (2d Cir.1988), the Second Circuit embraced the concurring opinion of Justice O'Connor in Wygant as to the showing that a public employer must make, in the face of a Fourteenth Amendment challenge, to support its compelling reason for approving an affirmative-action plan: "[I]t must have a firm basis for believing that remedial action is required." Id. at 236 (citation omitted and emphasis added). Subsequently, in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), the 435 Supreme Court adopted the plurality opinion in Wygant *435 that there must be a "strong basis in evidence for its conclusion that remedial action was necessary[,]" and equated that to evidence "approaching a prima facie case of a constitutional or statutory violation. . . ." Id. at 500, 109 S.Ct. 706 (emphasis added); accord Boston Police Superior Officers Fed'n v. City of Boston, 147 F.3d 13, 20 (1st Cir.1998) ("The `strong basis' may consist of either a contemporaneous or antecedent finding of past discrimination by a court or other competent body, or evidence approaching a prima facie case of a constitutional or statutory violation." (citations and internal quotation marks omitted)).[48]
Wygant and Croson represent a more fundamental divide than the nuanced differences between the evidentiary standards for assessing disparities under Title VII and the Fourteenth Amendment in the context of affirmativeaction plans. Whereas causation is not implicated under Title VII since the employer need not point to its own past discrimination, see Johnson, 480 U.S. at 630, 107 S.Ct. 1442, it is the touchstone of constitutional analysis because "the Equal Protection Clause require[s] `some showing of prior discrimination by the governmental unit involved.'" Croson, 488 U.S. at 492, 109 S.Ct. 706 (quoting Wygant, 476 U.S. at 274, 106 S.Ct. 1842 (plurality opinion)) (emphasis added). Thus, in Croson, although there was a strong basis in evidence establishing gross racial disparities in the municipality's awards of construction contracts, there was no showing of prior governmental discrimination.
In the present case, the government itself created the tests that were proven, by the requisite strong basis in evidence, to be discriminatory; thus, the Board's efforts to remedy its own discrimination passes muster under Constitutional analysis. This is not the case, however, in regard to the recruiting claim. There is no question that the statistical disparities established that a disproportionate number of whites took the exams, but there is absolutely no evidence that these disparities were occasioned by the Board's own discrimination. Apart from concluding that the disparities were not the result of chance, Dr. Ashenfelter offered no opinion as to their cause. Moreover, the only evidence regarding the Board's recruiting practices reflects an extensive effort by the Board to

widely publicize the exams to a variety of diverse sources; the case might be different if there were an evidentiary showing that notification of the exams was calculated to be given to whites. In sum, even though there is a firm basis for concluding that there was a significant disparity between white test-takers and minority test-takers, this alone does not translate to a showing that this disparity resulted from the Board's recruiting practices. To hold otherwise would be to engage in "sheer speculation" and credit "an amorphous claim that there has been past discrimination." Croson, 488 U.S. at 499, 109 S.Ct. 706.
According to the United States' relief chart, seven blacks, four Hispanics and one Asian were awarded benefits based on the recruiting claim. If so, these benefits cannot survive strict scrutiny.
436 *436 In respect to the award of retroactive seniority under the testing claims to the 27 blacks and Hispanics within the protected class for purposes of school transfers and TCAs0907which withstands strict scrutiny (other than in respect to Exam 8206)0907the Brennan intervenors question whether a compelling interest can ever be satisfied by proof of adverse impact; they argue that state actors may take race and national origin into account only to remedy discrimination arising from intentional disparate treatment.
The plan at issue in Barhold was designed to remedy such intentional discrimination. See 863 F.2d at 237 ("These [alleged discriminatory] practices included the placing of Black officers in predominantly Black, high crime offices and the limiting of women officers' caseloads to women parolees."). The Second Circuit remanded because "the statistics presented [were] insufficient to provide a firm basis for believing that the [employer had] engaged in [such] discriminatory practices," id.; the court was not called upon to decide whether a facially raceneutral practice that had a disparate impact could justify a race-conscious remedy.
In other cases, however, the Second Circuit and other circuit courts have assumed that an affirmative-action plan designed to rectify discrimination that springs from proof of a disparate impact passes constitutional muster. See, e.g., Paganucci v. City of New York, 785 F.Supp. 467, 477 (S.D.N.Y.1992) (holding that "the adverse impact" of an examination on minority candidates for promotion justified settlement agreement's race-conscious remedy), aff'd, 993 F.2d 310, 312 (2d Cir.1993) (affirming "for substantially the reasons set forth" in district court's opinion); Edwards, 37 F.3d at 1118 ("Clearly, the district court had ample evidence from which to conclude that the plaintiffs have proven disparate impact and that the City of Houston had justifiably concluded that it would be difficult to defend the job relatedness of the questions on the promotional exams."), reed on other grounds, 78 F.3d 983 (5th Cir.1996) (en banc); Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1566 (11th Cir.1994) (holding that the state-actor defendants had a "`strong basis in evidence' for concluding that race-based relief was needed to correct discrimination in the police and fire departments" because the hiring practices had an "adverse impact" on minorities); Stuart v. Roache, 951 F.2d 446, 449-52 (1st Cir.1991) (holding that statistical evidence demonstrating a "disparate impact" constituted a "`strong' or `firm' basis in evidence of prior discrimination").
The Brennan intervenors challenge this assumption, relying on the holding of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Judge Easterbrook's dicta in Biondo v. City of Chicago, 382 F.3d 680 (7th Cir. 2004).
In Washington, the Supreme Court made clear that a disparate impact for purposes of Title VII liability does not equate to a constitutional violation under the Fourteenth Amendment. See 426 U.S. at 239, 96 S.Ct. 2040 ("We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.") Washington, however, did not consider whether an admittedly compelling interest to rectify the vestiges of past discrimination by public employers could be established by proof of adverse impact, as opposed to proof of intentional discrimination.
In Biondo, however, Judge Easterbrook, noting that "compliance with federal laws cannot automatically be a 437 compelling interest," *437 382 F.3d at 684, questioned whether, in light of Washington, remedying an adverse
impact could ever serve a compelling governmental interest. Biondo involved the Chicago Fire Department's policy of awarding promotions in rank-order sequence based on an applicant's performance on a written examination. After the city concluded (1) that, under the EEOC's "four-fifths" regulation, see 27 C.F.R. § 1607.4 (D), discussed supra, the exam had a disparate impact on minorities, and (2) that there was no legitimate business justification for awarding promotions in rank-order sequence, it created separate lists for minority and non-minority applicants, and awarded positions proportionally from the two lists. Thereafter, non-minority

applicants claimed that this affirmative-action plan violated the Fourteenth Amendment because it was designed to remedy only a disparate impact. In response, the city did not argue that 29 C.F.R. § 1607.4(D) carried out a compelling interest; rather, it argued that it had a compelling interest in complying with the regulation.[49]
The Seventh Circuit upheld a jury finding that there was an insufficient factual basis for implementing the affirmative-action plan, thereby obviating the need to address the broader disparate-impact issue. In dicta, however, Judge Easterbrook observed:
[G]iven the holding of Washington v. Davis . . . that disparate impact in hiring or promotion by a public employer does not violate the equal protection clause, it is hard to see how . . . an argument that [29 C.F.R. 1607.4 carries out any compelling governmental interest] could be constructed. If avoiding disparate impact were a compelling governmental interest, then racial quotas in public employment would be the norm, and as a practical matter Washington v. Davis would be undone.
Id.
Judge Easterbrook's concern, therefore, assumed that remedying discrimination is a sufficiently compelling interest only if the discrimination amounts to a violation of the Fourteenth Amendment's prohibition on intentional discrimination. In the Court's opinion, this assumption is unfounded.
As discussed, the Supreme Court has described a governmental unit's interest in remedying past discrimination as sufficiently compelling to warrant race-based affirmative action only when the governmental unit is responsible for the discrimination. See Wygant, 476 U.S. at 278, 106 S.Ct. 1842 (plurality opinion) ("[A]ny statistical disparities were the result of general societal discrimination, not of prior discrimination by the Board."); id. at 288, 106 S.Ct. 1842 (O'Connor, J., concurring) ("I agree with the plurality that a governmental agency's interest in remedying `societal' discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster under strict scrutiny."). The Court's analysis in Wygant did not distinguish between governmental discrimination due to disparate treatment and governmental discrimination due to facially neutral practices that have a disparate impact. Indeed, there is a powerful conceptual reason not to make such a distinction. A public employer whose hiring practices impose a disparate impact in violation of Title VII is no less liable simply because the violation was not of constitutional magnitude; its interest in remedying the 438 violation is exactly the same. The Supreme *438 Court recognized as much in Croson when, in passing, it described the "strong basis in evidence" standard as evidence "approaching a prima facie case of a constitutional or statutory violation." 488 U.S. at 500, 109 S.Ct. 706 (emphasis added).
To forbid public employers from voluntarily complying with their obligations under Title VII is effectively to require them to challenge those obligations as inconsistent with their duties under the Fourteenth Amendment; such a result is fundamentally inconsistent with the goal of encouraging voluntary compliance and would, as Justice O'Connor noted in another context, "produce the anomalous result that what private employers may voluntarily do to correct apparent violations of Title VII, public employers are constitutionally forbidden to do to correct their statutory and constitutional transgressions." Wygant, 476 U.S. at 291, 106 S.Ct. 1842 (O'Connor, J., concurring) (citation omitted).
2. Narrowly Tailored
Since there was an adequate evidentiary basis for the Board to conclude that the exams had a disparate impact on blacks and, except with respect to Exam No. 8206, on Hispanics as well; and since, in the Court's view, remedying a disparate-impact Title VII violation occasioned by a state actor's own discriminatory conduct is a compelling interest to warrant a race-conscious remedy, the ultimate issue is whether the award of retroactive seniority for purposes of school transfers and TCAS to non-victim blacks and non-victim His-panics on the testing claims was narrowly tailored. Although the Court has held that the grant of retroactive seniority to such beneficiaries for the purpose of layoffs violates Title VII because it unnecessarily trammels the rights of nonminorities, it will also address the issue under Fourteenth Amendment analysis to obviate the need for remand should the circuit court disagree. Cf., e.g., Barhold, 863 F.2d at 238 (limiting scope of remand to the compelling-

interest prong of strict scrutiny by affirming district court's determination that affirmative-action plan was narrowly tailored).
Although the circuit court in Barhold remanded due to insufficient evidence that the affirmative-action plan at issue served a compelling interest, it agreed with the district court that the plan was narrowly tailored; in reaching that conclusion, it applied the criteria set forth in United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987). Under Paradise, "to determine if a plan is narrowly tailored, [a court] must look to the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.'" Barhold, 863 F.2d at 238 (quoting Paradise, 480 U.S. at 171, 107 S.Ct. 1053).
Application of the Paradise factors to non-victims of discrimination does not alter the results arrived at under the Title VII standard.[50]
439 *439 a. Transfers and TCAs
In Barhold, the Second Circuit analyzed whether an affirmative-action plan designed by the New York Division of Parole to remedy a perceived imbalance in the number of females and minorities in parole officer positions outside of New York City was narrowly tailored. See 863 F.2d 233. Prior to the implementation of the plan, the Division awarded transfers based on seniority, which favored males and non-minorities. Under the plan, the Division awarded half of its transfers based on a combination of seniority, race and gender, and the remaining half based solely on seniority. The circuit court held that it was narrowly tailored:
The Division has attempted to integrate it; workforce through hiring and minority recruitment efforts, but this has not increased the numbers of women and minorities in offices outside New York City. The plan itself is designed as a temporary measure; in fact, the Division modified it after only four months because of its effectiveness. The plan as modified is flexible, with affirmative action being only one of several factors that may be taken into consideration in allowing reassignments. Furthermore, affirmative action can be considered in only half of all reassignments: fully one-half of the reassignments must be made on the basis of seniority.
The plan does not set quotas for each region, but only goals used as a "benchmark" for assessing progress. Because the Division draws its employees from a statewide pool, it was proper for it to use statewide statistics to assess its needs. Finally, the impact on third parties has not been excessive and the interests of White males have not been unnecessarily trammeled. The plan was implemented as twenty-nine new positions were created; hence, there was still a considerable number of reassignment possibilities for White males. In fact, under the first year of the plan and its modification, over seventy percent of the reassignments were of White males.
Considering these factors and the plan's lack of effect in job opportunities such as hiring, layoffs or promotions, the district court's conclusion that the plan is sufficiently narrowly tailored to meet the compelling state interest will not be upset.
Id. at 238 (internal citations omitted).
As Barhold demonstrates, the factors used to determine whether an affirmative-action plan is narrowly tailored under the Fourteenth Amendment are closely related to those used to determine whether the plan unnecessarily trammels the rights of third parties under Title VII. Indeed, the two tests are cut from the same conceptual cloth in that they both require consideration of a plan's effect on innocent third parties. See, e.g., Paradise, 480 U.S. at 171, 107 S.Ct. 1053 (listing "the impact of the relief on the rights of third parties" as one factor to be considered under "narrowly tailored" prong of strict scrutiny).
The award of retroactive seniority to remedy the adverse impact of the exams is, for the purposes of transfers and TCAs, carefully circumscribed in its scope and effect, making a one-time adjustment for those entitled to such relief under the testing claims without establishing quotas or creating an absolute bar to the non-minorities' abilities to obtain those perquisites. Just as that feature contributed to the Court's conclusion that the award did

440 not, for purposes of transfers and TCAs, unnecessarily trammel the rights of third *440 parties, it compels the conclusion that the award is narrowly tailored.

b. Layoffs

In Wygant, the Supreme Court invalidated a CBA provision between a board of education and a teachers' union; the CBA provided that "if it became necessary to lay off teachers, those with the most seniority would be retained, except that at no time would there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff." 476 U.S. at 267, 106 S.Ct. 1842. Three justices concluded that "the Board's selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protection Clause." Wygant, 476 U.S. at 284, 106 S.Ct. 1842. A fourth justice, Justice White, concurring in the judgment, more bluntly stated that layoffs on the basis of race could never be tolerated unless necessary to protect a victim of prior discrimination. See id. at 295, 106 S.Ct. 1842 (White, J., concurring) ("Whatever the legitimacy of hiring goals or quotas may be, the discharge of white teachers to make room for blacks, none of whom has been shown to be a victim of any racial discrimination, is quite a different matter. I cannot believe that in order to integrate a work force, it would be permissible to discharge whites and hire blacks until the latter comprised a suitable percentage of the work force. None of our cases suggest that this would be permissible under the Equal Protection Clause."). The fifth justice comprising the majority, Justice O'Connor, concurred on the narrowest grounds, concluding that "[b]ecause the layoff provision . . . acts to maintain levels of minority hiring that have no relation to remedying employment discrimination, it cannot be adjudged `narrowly tailored' to effectuate its asserted remedial purpose." Id. at 294, 106 S.Ct. 1842 (O'Connor, J., concurring). However, she declined "to resolve the troubling questions whether any layoff provision could survive strict scrutiny or whether this particular layoff provision could, when considered without reference to the hiring goal it was intended to further, pass the onerous `narrowly tailored' requirement." Id. at 293-94, 106 S.Ct. 1842 (O'Connor, J., concurring). As a result of Justice O'Connor's reservation on the question of whether individuals may ever be subject to layoffs on account of their race, Wygant lacked a majority for the proposition that a state actor may never use race as a factor in determining layoffs unless necessary to protect victims of discrimination.

In Crumpton v. Bridgeport Education Association, 993 F.2d 1023 (2d Cir.1993), the Second Circuit reviewed under the Fourteenth Amendment the propriety of a consent decree that settled a school-desegregation lawsuit by providing that layoffs would be administered with an absolute preference to the retention of minority teachers. See id. at 1025. The circuit court pointed out that parties "may have more latitude in remedying violations of the Constitution than in remedying violations of Title VII," id. at 1030; nonetheless, the court found that the layoff provision was not narrowly tailored, noting that it "[went] far beyond the proportional plan invalidated in Wygant." Id. at 1031. It explained:

In this case, white teachers may have expected the layoffs to be proportional given their collective

bargaining agreement, which speaks in terms of preserving the gains made. Consequently, if a

proportional layoff scheme had been implemented here, it could have passed muster under

Wygant. Indeed a proportional layoff scheme may be necessary in order to safeguard the

441

progress made in Bridgeport toward desegregation. *441 No court, however, has held that a layoff

procedure giving absolute preference to minorities is narrowly tailored to achieve the goal of

rectifying past injustices of any form.

Id. (internal citations omitted).

Again, the reasons courts reject race-conscious layoffs as not narrowly tailored under the Fourteenth Amendment are closely related to the reasons they reject them under Title VII: such remedies impose a heavy burden on innocent third parties and, more than other potential remedies, upset their settled expectations. See Taxman, 91 F.3d at 1564-65 (citing Wygant for the proposition that the "burden [of layoffs] is too intrusive" to be a proper remedy under Title VII). Those concerns are, as the Court noted in its Title VII analysis, certainly present here. And since there is no suggestion that the Board's challenged employment practices violated the Constitution, Crumpton's suggestion that an employer may have "more latitude" in remedying such violations does not apply. Thus, the Agreement's grant of seniority for purposes of layoffs is not narrowly tailored.

B. Sex-Based Classifications

Prior to Croson, it was clear that gender-based affirmative-action plans were subject to intermediate scrutiny, which required that such plans "serve important governmental objectives and . . . be substantially related to achievement of those objectives." Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977) (quoting Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976)). Subsequent to Croson, the Sixth Circuit began subjecting gender-based affirmative-action plans to strict scrutiny. See Brunet v. City of Columbus, 1 F.3d 390, 404 ("Under the [post-Croson] precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause.") (citing Conlin v. Blanchard, 890 F.2d 811 (6th Cir.1989)); see also Long v. City of Saginaw, 911 F.2d 1192 (6th Cir.1990). The other circuits to have considered the issue have concluded that, notwithstanding Croson, gender-based affirmative-action plans remain subject to intermediate scrutiny. See Ensley Branch, 31 F.3d at 1580 ("Intermediate scrutiny remains the applicable constitutional standard in gender discrimination cases."); Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1001 (3d Cir.1993) ("We agree with the district court's choice of intermediate scrutiny to review the Ordinance's gender preference."); Coral Constr. Co. v. King County, 941 F.2d 910, 932 (9th Cir.1991) ("[W]e shall employ intermediate scrutiny to review King County's [WomenOwned Business Enterprise] program."); cf. Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 422 (7th Cir.1991) (assuming that Croson applied to gender-based affirmative action because state failed to argue that it did not, but noting that "Croson is about favoritism toward racial and ethnic groups, not about favoritism toward women"). The Second Circuit has recognized this circuit split, but has yet to weigh in on it. See Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 62 (2d Cir.1992) ("Croson may not apply to womenowned business enterprise programs, see Milwaukee County Pavers, 922 F.2d at 422, and the appropriate standard of review concerning gender-based set-asides remains unclear.").[51]
442 *442 The difference between strict and intermediate scrutiny has a very real impact in this case. According to the United States' Relief Chart, 19 women received relief under the recruiting claim. If strict scrutiny applies, then that relief is, for the reasons discussed in connection with race-based relief under the recruiting claim, unconstitutional; however, in the Court's opinion, the relief survives the more permissive standard of intermediate scrutiny.
As the Seventh Circuit recognized in Milwaukee County Pavers, the Supreme Court does not consider gender discrimination "to be as invidious0907as harmful and as difficult to justify "0907 as race discrimination. 922 F.2d at 422. The Court agrees with the Eleventh Circuit that "[n]othing in Croson suggests that the Supreme Court intended sub silentio to strike down its own decisions applying intermediate scrutiny to gender classifications," Ensley Branch, 31 F.3d at 1579, and its observation that the Sixth Circuit reached a contrary conclusion "with little or no discussion." Id. The Court concludes, therefore, that intermediate scrutiny continues to apply to gender-based affirmative-action plans.[52]
1. Important Governmental Interest
As with classifications subject to strict scrutiny, remedying past discrimination "is unquestionably a sufficiently `important' [interest] to sustain a gender-conscious affirmative action program[,]" Eng'r Contractors Ass'n of South Fla. Inc. v. Metro. Dade County, 122 F.3d 895, 908-09 (11th Cir.1997); however, "[u]nlike the strict standard of review applied to race-conscious programs, intermediate scrutiny does not require any showing of governmental involvement, active or passive, in the discrimination it seeks to remedy." Coral Constr. Co., 941 F.2d at 932; see also Ensley Branch, 31 F.3d at 1580 ("One of the distinguishing features of intermediate scrutiny is that, unlike strict scrutiny, the government interest prong of the inquiry can be satisfied by a showing of societal discrimination in the relevant economic sector.").
Since there were at least six standard deviations between the actual and expected number of female applicants for each of the challenged exams, see Tables, supra pp. 408-09, there is a strong evidentiary basis that women have, to a significant extent, been shut out of permanent custodial positions. While, as explained, there is insufficient evidence connecting the disparity to any action by the Board, such a connection is not necessary to satisfy the "important governmental interest" prong.
2. Substantially Related

Since the award of retroactive seniority is, for purposes of transfers and TCAs, narrowly tailored to the goal of remedying prior race and ethnic discrimination, it necessarily satisfies the lesser standard of being "substantially related" to the goal of remedying past gender discrimination. The converse, however, is not necessarily true; i.e., 443 that the grant of seniority for *443 purposes of layoffs fails the narrowly-tailored prong of strict scrutiny does not necessarily mean that it would ipso facto fail the substantially-related requirement of intermediate scrutiny.[53]
"The purpose of requiring [a substantial] relationship is to assure that the validity of a [gender-conscious] classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). In the affirmative-action context "a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened," but "only if members of the gender benefited by the classification actually suffer[ed] a disadvantage related to the classification." Id. at 728, 102 S.Ct. 3331.
Research has revealed no case either accepting or rejecting preferential layoff protection as "substantially related" to the goal of remedying gender discrimination. Here, however, that remedy satisfies the standards articulated in Hogan. The statistical evidence demonstrates that women, as a class, were at a disadvantage when it came to learning about the exams that could lead to permanent custodial positions. And increased layoff protection, far from being based on gender stereotyping, helps women as a class move toward the job security they would have enjoyed but for that disadvantage. In the Court's view, therefore, preferential seniority for female beneficiaries for purposes of layoffs, even though they be non-victims, satisfies the substantially-related prong of intermediate scrutiny, although it does not satisfy the more restrictive unnecessarily trammeling standard under Title VII.
Remaining Matters
A. Propriety of Entry of a Consent Judgment
The Court cannot enter those parts of Paragraphs 13-16 that have survived the Brennan intervenors' challenges as a consent judgment. In the first place, the Agreement was executed on February 11, 1999, and under Paragraph 11 was to "remain in force for a period of four years." Also, the Agreement provided in Paragraph 47 that although the Court shall retain jurisdiction to ensure compliance, its jurisdiction "shall automatically terminate at the expiration of [the Agreement] as set forth in paragraph 11." Magistrate Judge Levy, with the consent of all parties, entered all of its provisions save the challenged Paragraphs 13-16 as a consent judgment on February 28, 20020907well within that four year period0907and the Court had jurisdiction to enforce it until February 11, 2003. The same enforcement limitation would have attached to Paragraphs 13-16 if they had also been reduced to judgment prior to the expiration period. See EEOC v. Local 40, Int'l Assn. of Bridge, Structural & Ornamental Iron Workers, 76 F.3d 76, 80 (2d Cir.1996) (holding that court is without power to enforce decree after its underlying expiration date). In short, even if all of the provisions of Paragraphs 13-16 were deemed valid, the Court would nonetheless decline to reduce them to a judgment which it would be powerless to enforce.
444 *444 Regardless, without the Brennan intervenors' consent, the challenged paragraphs could not be entered as a consent decree even in the absence of the Agreement's termination provision since, as the circuit court noted in remanding, "[s]eniority is a contractual right[,]" New York City Bd. of Educ., 260 F.3d at 131 (citation omitted); consequently, the Brennan intervenors' consent would be required as a precondition to the Court lending its imprimatur to an Agreement affecting such a legally protected interest. Compare United States v. City of Miami, 664 F.2d 435 (5th Cir.1981) (en bane) (consent decree that permitted promotions to be made without following the city's civil-service testing procedure could not be entered over the objection of the police officer's union to the extent that the decree altered the city ordinance governing promotion procedures incorporated into the union's collective bargaining agreement with the city), and United States v. City of Hialeah, 140 F.3d 968, 981 (11th Cir.1998) ("[A] proposed consent decree is due to be rejected if it would affect the legal rights of the objecting parties."), with Kirkland v. New York State Dep't of Corr. Servs., 711 F.2d 1117, 1127-28 (2d Cir.1983) (holding that non-minority employees would not be permitted to intervene and block entry of consent decree in Title VII

case since they "d[id] not have a legally protected interest in the mere expectation of appointments which could only be made pursuant to presumptively discriminatory employment practices"), Waisome v. Port Auth. of N.Y. & N.J., 999 F.2d 711, 715 (2d Cir.1993) (rejecting union's objection to consent decree where it would not alter any contractual right held by union), and Local No. 93, 478 U.S. at 530, 106 S.Ct. 3063 (although permitted to intervene, union could not block consent decree where decree did not impose any obligations on union and union "failed to raise any substantive claims").[54]
B. Class Certification
The Brennan intervenors in Action I and the plaintiffs in Action II (collectively, the "Brennan parties") seek class certification with respect to their claims for injunctive and declaratory relief. None of the other parties in either action has submitted responsive papers. In light of the Court's holding that the Brennan parties' are entitled to the restoration of their seniority rights as to layoffs, and the injunctive relief that they will be entitled to once the Court determines which of the beneficiaries are non-victims, the Court must now decide whether to certify a class.
Fed.R.Civ.P. 23(b)(2) authorizes class-action status where the opposing party "has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." The Brennan parties' claims for injunctive and declaratory relief fit squarely within that definition to the extent that their rights have been violated.
To warrant class-action status, however, the proposed class must also meet the prerequisites of Rule 23(a)(1-4), 445 namely numerosity, commonality, typicality, *445 and adequacy of representation.[55] The Court is satisfied that
the Brennan parties have met these requirements insofar as they are entitled to injunctive relief to preserve their seniority rights in respect to layoffs.
The first requirement, numerosity, requires that a finding that the class is so numerous that joinder of all class members is impracticable. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993). Citing a leading treatise, the Second Circuit has noted that "the difficulty in joining as few as 40 class members should raise a presumption that joinder is impracticable." Id. at 936 (citing 1 Herbert B. Newberg, Newberg on Class Actions: A Manual for Group Litigation at Federal and State Levels § 3.05 (2d ed.1985)). There are clearly more than 40 non-minorities whose layoff-protection rights have been impacted: Since the grants of retroactive seniority under the testing claims were based on the median hire date of candidates hired from the eligibility lists resulting from the exams, they necessarily affected the layoff protection of at least half of those on each list; thus, the beneficiaries who received relief under the testing claims displaced at least 77 of the 154 candidates hired from the eligibility list for Exam No. 5040, at least 23 of the 46 candidates hired from the eligibility list for Exam No. 8206, and at least 122 of the 244 candidates hired from the eligibility list for Exam No. 1074. Furthermore, it is safe to assume that a significant number of the 300 individuals who submitted written objections to Magistrate Judge Levy were custodial employees whose layoff-protection rights were adversely affected by the Agreement.
The Brennan parties also satisfy Rule 23(a)(2)'s commonality and Rule 23(a)(3)'s typicality requirements. With respect to the commonality requirement, they are victims of a common wrong 0907that, as a matter of law, their layoff-protection rights have been compromised. See Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997) ("The commonality requirement is met if plaintiffs' grievances share a common question of law or fact."). This applies with equal force with respect to the typicality requirement. See id. at 376 ("[The typicality requirement] is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." (citations and internal quotation marks omitted)).
The Brennan parties have also demonstrated that they will adequately represent the class 0907Rule 23(a)'s final requirement. In order to satisfy this requirement, the Brennan parties' attorney must be "qualified, experienced, and generally able to conduct the proposed litigation," and they must not have interests antagonistic to those of the remainder of the class. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968). The Court is satisfied, given the unchallenged information in the Statement of Michael E. Rosman regarding his past experience, that counsel is sufficiently experienced in class actions and in discrimination law to fairly and adequately represent the 446 proposed class. Furthermore, the Brennan parties do not have interests that are at odds with the *446 putative class; the injunctive relief they seek will be the same relief to which the entire class will be entitled.

Thus, the Court will certify a class comprising all custodial employees whose layoff-protection rights have been adversely affected by the grant of seniority benefits to beneficiaries who are non-victims of discrimination.[56]
Because the Court has certified the class under Rule 23(b)(2), it need not provide notice to the class members or afford them an opportunity to opt out. See Fed. R.Civ.P. 23(c)(2)(A) advisory committee's note ("The court may decide not to direct notice after balancing the risk that notice costs may deter the pursuit of class relief against the benefits of notice."); Larsen v. JBC Legal Group, P.C., 235 F.R.D. 191, 196 (E.D.N.Y.2006) ("Rule 23(b)(2) does not require notice or permit class members the opportunity to opt-out." (citing Fed.R.Civ.P. 23(c)(2)(A))). As a practical matter, notice of the Court's decision will undoubtedly be given to all the Board's custodial employees by their union leaders, who are well-schooled in protecting their rights.
RECAPITULATION
A. Testing Claims
The testing claims affected only blacks and Hispanics. If the United States' Relief Chart is proven to be accurate, 28 were afforded full retroactive seniority. The rights of one, Luis Torres, cannot be determined until the Court resolves the factual dispute as to whether Exam No. 8206 had a disparate impact on Hispanics. As for the remaining 27, seven are actual victims of discrimination and they are therefore entitled to full retroactive seniority for all purposes; as for the other 20, if it is factually established that they were not victims of discrimination, they would be entitled to preferential seniority for school transfers and temporary care assignments, but not for layoffs.
B. Recruiting Claim
According to the United States' Relief Chart, 31 blacks, Hispanics, Asians and women received full, unqualified retroactive seniority. Of that group, 12 were men; 19 were women. One of the men, Dellaporte, is neither black nor Hispanic; hence he is not entitled to any relief under any circumstances. As for the remaining 11 men, none is entitled to any relief, except for those who can factually establish that they were actually victims of discrimination. As for the women, all of them are entitled to preferential seniority for school transfers and temporary care assignments; however, unless they can prove that they were actual victims of discrimination, they would not be entitled to preferential seniority for layoffs,[57]
C. Reflections
The Court has studied innumerable Supreme Court, circuit court and district court decisions relevant to the issues 447 *447 raised in this litigation; none has approached the complexities of this case, representing a veritable tour de
force of virtually every aspect of affirmative-action law in the employment arena. This legal juggernaut emanated from the need to adjudicate multiple disparate-impact claims under both Title VII and the Fourteenth Amendment in respect to the effect preferential seniority had on three different seniority benefits 0907school transfers, temporary care assignments and layoffs0907requiring the application of three different standards: the manifest imbalance/ unnecessary trammeling standard applicable to all the beneficiaries under Title VII analysis, and the two separate standards applicable to race-based and gender-based relief under constitutional analysis; moreover, many of the issues subsumed by these analyses have yet to be passed upon by the Supreme Court or the Second Circuit.
Given the contentious history of this litigation and the importance of the issues raised, the parties undoubtedly will not rest with the district court's decision. Before an appeal can be taken to the Second Circuit, finality will have to be achieved; in light of the wide range of legal issues and the handful of simple factual issues that can readily be resolved, the Court will not be inclined to certify its decision for interlocutory review. The Court exhorts the parties to resolve these factual issues by stipulation since it is in the best interests of all parties, after ten years of litigation, to allow the Court to expeditiously enter a final judgment.
CONCLUSIONS
1. The Board's motion to enter the Agreement as a consent judgment is denied.

2. The Brennan parties' motion for class certification is granted to the extent that the Court certifies a class comprising all custodial employees whose layoff-protection rights have been adversely affected by the grant of seniority benefits to beneficiaries who are non-victims of discrimination.
3. Regarding the intervenors' motions for partial summary judgment, the Court declares as follows:
a. As for the testing claims, all beneficiaries who received relief, except Luis Torres, are entitled to the seniority benefits provided by the Agreement as to transfer rights and temporary care assignments; as for layoffs, however, the grant of seniority benefits to beneficiaries who are not victims of discrimination violates Title VII and the Fourteenth Amendment.
b. As for the recruiting claim, the grant of seniority benefits for any purpose to black, Hispanic and Asian males who were not victims of discrimination violates the Fourteenth Amendment. As for the women, they are entitled to the seniority benefits provided by the Agreement as to transfer rights and temporary care assignments; as for layoffs, however, the grant of seniority benefits to women who are not victims of discrimination violates Title VII.
c. Dellaporte is not a member of a protected class; therefore, he is not entitled to any relief.
4. A hearing is required as to (a) which, if any, of the beneficiaries, in addition to Lloyd Bailey, Joseph Christie, Belfield Lashley, Gilbert Rivera, Peter Robertin, Felix Torres and Mayra Zephrini (Cintron), are actual victims of discrimination and received the relief to which they were entitled; (b) whether the results of Exam 8206 in respect 448 to Luis Torres satisfy the evidentiary standards for establishing discrimination under Title VII and the *448 Fourteenth Amendment; and (c) whether John Mitchell and Eric Schauer were denied transfers in favor of particular individuals who impermissibly received retroactivity seniority.
5. In the absence of a stipulation resolving the factual issues, the parties shall appear before the Court on October 11, 2006, at 5 p.m., to set a hearing date.
SO ORDERED.
[1] Although Custodians and Custodian Engineers perform many of the same duties, Custodian Engineers are required to have qualifications above and beyond what is required of a Custodian, the most significant of which is a stationary engineer's license. See Dec. 23, 2004 Decl. of Emily Martin, Ex. 54 (Apr. 8, 2002 Decl. of James Lonergan) at 10. The positions of Custodian and Custodian Engineer are now referred to as "Custodian Engineer Level 1" and "Custodian Engineer Level 2," respectively. The Court, however, will maintain the old terminology.
[2] Caldero 56.1 Statement of Facts ¶ 4; Dec. 23, 2004 Decl. of Emily Martin, Ex. 3 (Def.'s Response to Plaintiff's First Set of Requests for Admission) at 9; id., Ex. 2 (Ethnic Survey'93).
[3] Section 707 authorizes the United States Attorney General to bring a civil action whenever he or she "has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of th[os]e rights. . . ."
[4] By order dated November 24, 2004, the Court consolidated both actions pursuant to Fed.R.Civ.P. 42(a).
[5] Although the Board is a governmental actor subject to the Fourteenth Amendment, it is not an arm of the state entitled to Eleventh Amendment Immunity. See Fay v. South Colonie Sch. Dist., 802 F.2d 21, 27 (2d Cir.1986) ("State action for purposes of the Fourteenth Amendment is not equal to being the state for purposes of the Eleventh Amendment"), overruled in part on other grounds by Taylor v. Vermont Dept. of Educ., 313 F.3d 768 (2nd Cir.2002).
[6] The named parties in Action II were the four Brennan intervenors 0907John Brennan ("Brennan"), James Ahearn ("Abeam"), Dennis Mortenson ("Mortenson") and Scott Spring ("Spring") and three others (Ernie Tricomi, John Mitchell and Eric Schauer). Mitchell and Schauer are the two seeking monetary damages; Tricomi has withdrawn from the litigation. See Not. of Voluntary Dismissal by Pl. Ernie Tricomi (Jan. 16, 2003).

[7] More specifically, the Caldero and Arroyo intervenors seek a declaratory judgment that the challenged provisions of the Agreement comport with Title VII and the Fourteenth Amendment, see Caldero Intervenors' Mot. for Partial Summ. J. at 2; Arroyo Intervenors' Mot. for Partial Summ. J. at 1-2; conversely, the Brennan intervenors seek a declaratory judgment that the challenged provisions violate Title VII and the Fourteenth Amendment. See Brennan Intervenors' Mot. for Partial Summ. J. at 2.
[8] The United States initially joined in the Board's motion; however, it subsequently, in effect, withdrew its support. See United States's Mem. of Points and Authorities in Response to this Court's Order of July 20, 2004, at 9 ("[T]o the extent that the Brennan Intervenors have standing to challenge certain provisions of the Agreement, those provisions cannot be entered as a consent judgment over their objection."). Although the Caldero and Arroyo intervenors have not formally joined in the motion, they support it.
[9] Since the inception of the litigation, the parties have submitted 42 legal memoranda, 36 declarations and 246 letters from counsel; as to the pending summary judgment motions, the submissions include more than 500 pages of legal memoranda and letter briefs, and a seven-foot mountain of supporting documentation that nearly fills 7 banker's boxes. Notwithstanding the parties' contributions, the Court has expended a tremendous amount of its own judicial resources developing the relevant facts and staking out the correct conceptual analysis.
[10] The Court uses the term "non-victims" to refer to beneficiaries who were not impacted by any of the discriminatory practices, and beneficiaries who, although victims of discrimination, received relief that was not make-whole in nature (i.e., the relief went beyond that necessary to put them in the position that they would have been in but for discrimination). In appropriate circumstances, "the voluntary action available to employers . . . seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who were not the actual victims of discrimination." Local No. 93, Int'l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501, 516, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) (citing United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979)).
[11] There are three other pending motions, which the Court summarily denies: (1) the Board's motion seeking judicial enforcement of Paragraph 9 of the Agreement, which provides that if any party challenged a provision of the Agreement, the United States and the Board "shall take all reasonable steps to defend fully the lawfulness of any such provision"; (2) the United States' motion to strike a declaration submitted by the Board in support of its motion for enforcement of Paragraph 9; and (3) a motion by the Brennan intervenors to strike certain arguments made by the parties in their motion papers. In light of the Court's decision, these three motions are of no substantive significance.
[12] Custodian Engineer Exam No. 8609, which was a promotional exam given to Custodians who wanted to be considered for Custodian Engineer positions, was identical to Custodian Engineer Exam No. 8206, which was given to members of the general public who were seeking Custodian Engineer positions.
[13] The minority applicant pool for Exam No. 8609 was "too small to conduct statistical analysis." Jan. 10, 2005 Decl. of Charles E. Leggott, Ex. 26 (Dr. Bernard R. Siskin & Dr. Leonard A. Cupingood, Adverse Impact on Minorities of Written Examinations for Custodian and Custodian Engineer Positions in New York City (Nov.1997)) at 2.
[14] "The standard deviation for a particular set of data provides a measure of how much the particular results of that data differs from the expected results." United States v. New York City Bd. of Educ., 85 F.Supp.2d 130, 142 n. 17 (E.D.N.Y.2000), vacated, 260 F.3d 123 (2d Cir.2001).
[15] The Z-statistic is a dimensionless quantity that represents the number of standard deviations from which the actual score deviates from the mean score; it is derived by subtracting the mean score from the actual score and dividing the difference by the standard deviation. A Z-statistic greater than or equal to 1.96 means that there is only a 5% probability that the deviations were due to chance alone; statisticians refer to Z-statistics of 1.96 or more as statistically significant. See Decl. of Dr. Ashenfelter (Apr. 1, 1999) ¶ 19.
[16] Appendix A sets forth the race and ethnicity of each of the 54 0907whether white, black, Hispanic or Asian 0907his or her gender, job title and seniority date.

[17] The median dates were January 23, 1989, for Custodian Exam No. 5040; October 8, 1992, for Custodian Engineer Exam No. 8206; February 14, 1992, for Custodian Engineer Exam No. 8609; and October 27, 1997, for Custodian Exam No. 1074. The median date is defined as the midpoint of the hiring period for the associated exam.
[18] Appendix A does not reflect the date that the 11 Offerees that had already become permanent employees by the time the Agreement was executed began accruing seniority.
[19] For each school, the Board assigns a "management fee" that reflects the appropriate cost for custodial services in that particular school, including the salary of the custodial employee. From this management fee, the custodial employee assigned to the building may earn up to the "maximum permissible retainage" for the employee's building. If, however, the custodial employee goes over budget, the employee's salary is reduced.
[20] There are three seniority bands for Custodians (one to five years, five to ten years, and ten or more years); there are four seniority bands for Custodian Engineers (one to five years, five to ten years, ten to fifteen years, and fifteen or more years).
[21] Custodian Engineers who previously served as Custodians and completed a oneyear probationary period under that title do not have to serve a second probationary period; thus, those individuals are placed on the applicable TCA list immediately upon appointment as a permanent Custodian Engineer.
[22] It is unclear where on the TCA list the beneficiaries were placed. According to James Lonergan, formerly the Board's Senior Director of Building Services, the beneficiaries who were awarded permanent-employee status were placed at the bottom of the applicable TCA list only after they completed the one-year probationary period; the beneficiaries who were already permanent employees as of the date that the Agreement was implemented remained on the applicable TCA list according to date that they completed their probationary periods (i.e., their relative positions on the TCA lists were not moved up to reflect any retroactive seniority received under the Agreement). However, according to Salvatore Calderone, the Board's Deputy Director for the Office of Building Services, the beneficiaries who were awarded permanent-employee status were placed on the top of the applicable list when they became eligible, and the beneficiaries who were already permanent employees were placed on the top of the list once the Agreement was implemented.
[23] The award did not affect Ahearn or Brennan, even though they, too, were appointed as permanent Custodian Engineers after the beneficiaries were awarded permanent-employee status. Ahearn and Brennan were appointed as permanent Custodian Engineers on October 18, 2000, and because they had previously completed one-year probationary periods as Custodians, were immediately placed on the applicable TCA list 0907before the beneficiaries completed their one-year probationary periods.
[24] In a Memorandum and Order dated June 23, 2006, the Court afforded the parties the opportunity to submit letter memoranda regarding the interplay between the New York Civil Service Law and the Agreement as it concerned layoffs. Each party responded on July 17, 2006.
[25] A fairness hearing provides interested parties an opportunity to object; if after notice and opportunity to object, a consent judgment is issued, these interested parties cannot collaterally attack the settlement agreement. See 42 U.S.C. § 2000e-2(n) (individuals may not challenge any employment practice implementing a consent judgment provided notice and opportunity to object are given).
[26] While the Appendix listed 54 potential beneficiaries, other custodial employees sought to obtain benefits under the Agreement after it was executed. Seven (Joseph Christie, Jerry Dale Lewis, Anthony Pantelides, Nicholas Pantelides, Percival Punter, Gilbert Rivera and Harry Santana) were added as beneficiaries because, although originally listed as white in the Board's records, each claimed to be either black or Hispanic. The United States and the Board added these seven, together with two others (Kevin LaFaye and Vernon Marshall), bringing the total number of beneficiaries to the final number of 63.
[27] Of the 19 women receiving relief, 16 are identified in the Relief Chart as white, one (Celia Calderon) as Hispanic, one (Marcia Jarrett) as black and one (Kim Tatum) as Asian. These last three are not included in the

number of beneficiaries receiving relief under the recruiting claim based on race or national origin; thus, the 12 receiving relief on those grounds are all men.
[28] As the circuit court also noted, "at least one reason the declarations were unrebutted and unchallenged was that they were served some weeks after objections were due and only days before the fairness hearing. In fact, one declaration was sent to the court via Federal Express only two days before the hearing." Id. at 130 n. 4.
[29] The post-hoc review mirrored the review of the test-passers in all respects except that it did not include an opportunity for applicants to administratively appeal an adverse determination; of the 56 test-passers initially determined to be unqualified, 23 overturned that determination through the appeals process.
[30] According to Dr. Bobko, of 257 qualified white test-takers, 232 passed the exam, resulting in a pass rate of 90.3%; of 31 qualified Hispanics, 25 passed, resulting in a pass rate of 80.6%. See Dr. Philip Bobko, Adverse Impact (If Any) Analysis for Open Competitive Engineer Exam # 8206 (Nov. 12, 1997). Thus, the pass rate for Hispanics was 89.3% of the pass rate for whites.
[31] The following beneficiaries, each of whom failed one of the challenged exams, were found in a post-hoc review to lack the minimum qualifications set forth in the notice publicizing the applicable exam: for the 5040 exam, Laura Daniele, Thomas Fields, Carla Lambert, Angel Pagan, Anthony Pantelides, Kim Tatum and Pedro Arroyo; for the 8206 exam, Luis Torres; and for the 1074 exam, Charmine DiDonato, Elaine Farr, Carla Lambert, James Martinez and Kim Tatum.
[32] The United States also challenges the award, at least in part, as reflected in its Relief Chart. It contends that 15 beneficiaries were entitled to less retroactive seniority than afforded by the Agreement, and that two were entitled to more. It also contends, for various reasons that need not be detailed here, that 25 beneficiaries are not entitled to any retroactive seniority. Finally, it contends that the appropriate remedy for beneficiary Elaine Farr is unknown.
[33] None of the Brennan intervenors has yet suffered any actual adverse consequences since they have not been denied transfers (unlike the two white males in Action II) or TCAs, and have not been laid off; nevertheless, their claims are ripe for adjudication. See Benson v. General Motors Corp., 716 F.2d 862, 864 (11th Cir.1983) (holding that for purposes of statute of limitations, claim accrues from injury, which is the loss of seniority, not when one "became aware of one of the injury's many manifestations"); Anderson v. Legal Aid Society, 1995 WL 322182, at *3 n. 5 (S.D.N.Y. May 26, 1995) ("Although plaintiffs have not been terminated or threatened with future layoffs, they have suffered a legally cognizable injury because they lost bargaining unit seniority. . . ." (citing Benson, 716 F.2d at 864)); see also Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569-72, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984) (striking down court order because "unless set aside [the order] must be complied with in connection with any future layoffs." (emphasis added)).
[34] The Brennan intervenors cite Peightal v. Metropolitan Dade County, 26 F.3d 1545 (11th Cir.1994), for the proposition that "a person's claim of identification with a certain racial or ethnic group should accompany strong visible indication that the person culturally and linguistically identifies with the group he or she claims." Id. at 1559. Peightal is inapposite because, in determining that these contested beneficiaries qualified as Hispanic, the Board relied on proof of their places of origin, not merely their "claims of identification."
[35] The articulation of the "manifest imbalance" and "unnecessary trammeling" standard for adjudicating Title VII challenges to affirmative-actions plans contrasts with the standard governing a court's approval of a settlement agreement in the absence of such litigation0907namely, whether "there is an existing condition that serves as a proper basis" for the plan, and whether the "specific remedies of the compromise agreement are reasonable and lawful." Kirkland, 711 F.2d at 1129. Obviously, neither standard can conflict with Title VII or Constitutional proscriptions, but the manifest imbalance standard, employed when the specific claims of third-party litigants are the subject of litigation, calls for a more focused and heightened assessment of those claims.
[36] As Johnson holds, where an employer has taken any prohibited Title VII factor into account for its employment decision,

the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer's decision, the burden shifts to the plaintiff to prove that the employer's justification is pretextual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, however, as petitioner suggests, that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.
480 U.S. at 626-27, 107 S.Ct. 1442. The unique procedural posture of this case obviates the need for the Court to delve into the application of these shifting burdens; faced with statistical evidence establishing a manifest imbalance, the Brennan intervenors, as the parties challenging the Agreement, had the ultimate burden of proof. See Bass v. Board of County Comm'rs, 256 F.3d 1095, 1114 (11th Cir.2001) (noting that the burden of proof in challenges under Title VII rests with challenger "unless or until the Supreme Court revisits its holding in Johnson ").
[37] The Brennan intervenors also contend that the challenged exams were consistent with business necessity. Although in a non-affirmative-action case, employers may defeat a disparate-impact claim by demonstrating that their challenged practice is consistent with business necessity, see Robinson, 267 F.3d at 161, it is ludicrous to argue that when an employer takes action to rectify past discrimination it is acting contrary to its business needs.
[38] In arguing lack of causation, the Brennan intervenors do not prescind between their Title VII and Fourteenth Amendment challenges. As will be seen, the distinction is a material one.
[39] The Brennan intervenors do not question that retroactive seniority is appropriate for those beneficiaries who were actual victims of discrimination, nor could they in light of the clearly established Supreme Court and Second Circuit cases holding that retroactive seniority can be awarded, be it by court order after trial, consent decree, or by an affirmative-action plan to actual victims of discrimination in order to afford them make-whole relief. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976); Acha v. Beame, 531 F.2d 648 (2d Cir. 1976). The rationale for doing so is that the non-minorities are not being victimized; rather, the victims of discrimination are being put in their rightful place.
[40] Although the city was a public employer, the Fourteenth Amendment was not at issue since the plan was challenged only on the ground that it was not a proper remedy under Title VII. See Stotts, 467 U.S. at 582-83, 104 S.Ct. 2576.
[41] Section 703(h) provides:
[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin. . . .
42 U.S.C. § 2000e-2(h).
[42] Section 706(g) provides that, upon a finding of unlawful discrimination, a court may enjoin the challenged employment practice and "order such affirmative relief as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate[,]" but that
[n]o order of the court shall require the admission or reinstatement of an individual as an employee, or the hiring, reinstatement or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin. . . .

42 U.S.C. § 2000e-5(g).
[43] The affirmative-action plan incorporated in the consent decree in Local No. 93 involved the alteration of a seniority system (requiring the City to forego using seniority points as a factor in making promotions). The Supreme Court did not reach the merits of the plan, holding only that the restrictions of § 706(g) are inapplicable to consent decrees.
[44] Section 703(a) of Title VII makes it unlawful for an employer (1) "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[,]" or (2) "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a). As explained in Griggs, the latter proscription serves as the basis for disparate-impact claims. See 401 U.S. at 431, 91 S.Ct. 849. Section 703(d) provides:
It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
42 U.S.C. § 2000e-2(d).
[45] Although the employer in Johnson was a state actor, the employee only sued under Title VII; "no constitutional issue was either raised or addressed in the litigation." 480 U.S. at 620, 107 S.Ct. 1442.
[46] The Court will not resolve at this time which party bears the burden of proving which beneficiaries were or were not actual victims of discrimination, and will invite the parties to address that issue prior to the hearing.
[47] For purposes of the Fourteenth Amendment, as under Title VII, "[i]t is undisputed . . . that principles of analysis applicable to race-based affirmative action programs are the same as those applicable to national-originbased affirmative action programs." Jana-Rock Const., Inc. v. New York State Dep't of Econ. Development, 438 F.3d 195, 200 n. 1 (2d Cir.2006). Thus, the Court's analysis of the Board's race-based relief applies equally to relief based on national origin.
[48] There is obviously little, if any, conceptual difference between "firm basis" and "strong basis," and, in light of Croson, the Second Circuit now employs the "strong basis" language. See Jana-Rock Constr., 438 F.3d at 213 ("We express no view as to whether [] anecdotal accounts, standing alone, could satisfy Croson's demands for a `strong basis in evidence' that would justify the inclusion of a particular class in an affirmative action program.").
[49] The city also "did not argue that either past discrimination or a quest for diversity" served as a compelling interest to "support its approach." Biondo, 382 F.3d at 683.
[50] No one disputes that, as in Title VII, relief that makes whole actual victims of discrimination is warranted. See Croson, 488 U.S. at 526, 109 S.Ct. 706 (Scalia, J., concurring) ("[O]f course, a State may undo the effects of past discrimination in the sense of giving the identified victim of state discrimination that which it wrongfully denied him0907for example, giving to a previously rejected black applicant the job that, by reason of discrimination, had been awarded to a white applicant, even if this means terminating the latter's employment. That is worlds apart form the system here, in which those to be disadvantaged are identified solely by race.").
[51] The Court recognizes that the plan at issue in Barhold was both race- and gender-conscious and that the Second Circuit neverthe-less subjected the plan to strict scrutiny. Since, however, the court concluded that the plan survived the rigorous "narrowly tailored" standard, See 863 F.2d at 238, it did not have to address the possibility that a lesser standard might apply to affirmative action for women. Cf. Ensley Branch, 31 F.3d at 1580 (distinguishing prior case applying strict scrutiny to gender-based affirmative-action plan because "[w]e did not need to do [consider whether a less-exacting standard applied], given our holding that the plan satisfied even the searching Croson test").

[52] As the Eleventh Circuit has recognized, "[w]hile it may seem odd that it is now easier for uphold affirmative action programs for women than for racial minorities, Supreme Court precedent compels that result." Ensley Branch, 31 F.3d at 1579.
[53] Once again, the Court addresses the Four-teenth Amendment to obviate any need for remand.
[54] Those parties supporting the entry of the full Agreement as a consent decree argue that under 42 U.S.C. § 2000e-2(n)(1) the entry of an expired decree would nonetheless "provide[ significant protection for employers from challenges to the lawfulness of employment actions taken to implement a consent judgment." Arroyo Intervenors' Mem. of Law Supporting Entry of the Challenged Provisions of the Agreement at 20. Since the Agreement has been implemented, and this litigation will determine the lawfulness of its implementation, the final judgment of the Court will realistically provide sufficient protection against any future challenges.
[55] Fed.R.Civ.P. 23(a) provides:
Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
[56] In light of the Court's holding that the Brennan parties are also entitled to the restoration of seniority rights disrupted by the relief granted to blacks, Hispanics and Asians under the recruiting claim, it might also be appropriate to certify a class comprising employees whose seniority rights were adversely affected by such relief; however, the Court declines to certify such a class based on the present record, which does not reflect that the number of those so affected is sufficient to satisfy Rule 23(a)'s numerosity requirement.
[57] The Court declines to rule out the possibility that some beneficiaries were actual victims of recruiting discrimination, but is dubious that it can be proven given the lack of evidence of a causal connection between the number of women and minority test-takers and the Board's recruiting practices.
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 U.S. v. New York City Bd. of Educ., Not Reported in F.Supp.2d (2005)

2005 WL 1949477 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
UNITED STATES of America, Plaintiff, v.
NEW YORK CITY BOARD OF EDUCATION, et al., Defendants, and
John Brennan, et al., Intervenors.
No. 96-CV-0374 (FB)(RML). | Aug. 15, 2005.
Attorneys and Law Firms
Michael E. Rosman, Esq., Center for Individual Rights, Washington, DC, for Intervenor Brennan.
Matthew B. Calangelo, Esq., NAACP Legal Defense Fund & Educational Fund, Inc., New York, NY, for Intervenors Arroyo.
Emily J. Martin, Esq., American Civil Liberties Union, Women’s Rights Project, New York, NY, for Intervenor Caldero.
Lawrence J. Profeta, Esq., The City of New York Law Department, New York, NY, for Defendant New York City Board of Education.
Charles E. Leggot, Esq., United States Department of Justice, Employment Litigation Section, Washington, DC, for Plaintiff United States.
Opinion
MEMORANDUM & ORDER
BLOCK, District Judge.
*1 Pending before the Court is a motion by Defendant New York City Board of Education (“NYC BOE”) for a protective order or injunctive relief barring disclosure under the Freedom of Information Act (“FOIA”) of certain documents, which were created in connection with mediation of this case. See Letter from Lawrence J. Profeta on behalf of NYC BOE (July 14, 2005).
I.

On September 10, 2004, intervenors John Brennan et al. (“Brennan”) filed a request pursuant to FOIA, 5 U.S.C. § 552 et seq., for various documents. Thereafter, NYC BOE sought Magistrate Judge Levy’s assistance in preventing the disclosure of three documents that were created in connection with mediation in this case. See United States v. New York City Bd. of Educ., No. CV-96-0374 (January 21, 2005). On November 1, 2004, Magistrate Judge Levy precluded the United States from releasing these documents. See id. On January 21, 2005, the Court “construe[d] the November 1, 2004 Order as a protective order, pursuant to Federal Rule of Civil Procedure 26(c), barring discovery of the specified documents under Rule 26, but not necessarily under FOIA;” it expressly noted that “[d]isclosure of these documents under FOIA [wa]s a separate matter, which [wa]s not before the Court .” Id.
On February 9, 2005, the United States denied the FOIA request. See Letter from Michael E. Rosman on behalf of Brennan (July 18, 2005) at 2. On March 2, 2005, Brennan submitted a letter to the United States, appealing its decision to deny the request. See id . Brennan’s appeal is currently pending. See id.
II.
Pursuant to Fed. R. Civ. Pro. 26(c), the Court may issue a protective order, as it did here, limiting the scope of discovery or disclosure. A person’s right to disclosure under FOIA, however, is separate from that under Rule 26. See, e.g., Mayock v. Nelson, 938 F.2d 1006, 1008 (9th Cir.1991) (“[A] person’s rights under FOIA are neither diminished nor enhanced by ‘litigation-generated need’ for agency documents.” (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 n. 23 (1978))). Therefore, NYC BOE now requests that this Court take the additional step of barring disclosure under FOIA of the three documents.
NYC BOE’s motion, however, is inappropriate. As set forth below, the Court does not have jurisdiction to enjoin disclosure of documents under FOIA until the United States has made a final determination to disclose the documents. If the United States ultimately decides to disclose the documents, NYC BOE may then file a separate action to contest that decision.
Pursuant to 5 U.S.C. § 552(a)(4)(B), a district court “has jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant” after the requester has exhausted his or her administrative remedies. See Ruotolo v. Department of Justice, 53 F.3d 4, 8 (2d Cir.1995) (“The denial of requested information
1

U.S. v. New York City Bd. of Educ., Not Reported in F.Supp.2d (2005)

must be appealed to the head of an agency.” (citing Oglesby v. United States Dep’t of Army, 920 F.2d 57, 61 (D.C.Cir .1990))). Because NYC BOE is seeking to enjoin disclosure of these documents, § 552(a)(4)(B) is not applicable. Of course, if Brennan is ultimately unsuccessful in his appeal of the United States’ denial of his FOIA request, he may file an action in federal court.
*2 Pursuant to the Administrative Procedures Act (“APA”), however, a third party may challenge an agency’s final decision to disclose a document under FOIA. See Chrysler Corp. v. Brown, 441 U.S. 281, 292, 317-18 (1979) (Although “[§ 552(a)(4)(B) does not give the authority to bar disclosure[,]” ... a decision to disclose may be reviewed under the APA.). Therefore, if the

United States ultimately reverses course and decides to disclose the documents, NYC BOE may file an action in federal court challenging that decision.
CONCLUSION NYC BOE’s motion is denied. SO ORDERED.
	  

2

 
 Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 1 of 65
CLASS, CONSOLIDATED
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:96−cv−00374−FB

United States v. NYC Board of Educati, et al Assigned to: Senior−Judge Frederic Block Demand: $0 Member case: (View Member Case) other Case: 1:08−cv−03032−FB−RML Cause: 28:1345 USA Plaintiff Mediator Esq. Vivien B. Shelanski TERMINATED: 10/04/2004
Movant John Brennan
Movant James G. Ahearn

Date Filed: 01/30/1996 Date Terminated: 08/22/2008 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Vivien B. Shelanski JAMS 45 Broadway 28th Floor New York, NY 10006 (212) 751−2700, Ext. 705 Fax: (212) 751−4099 Email: vshelanski@jamsadr.com TERMINATED: 10/04/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Hajec Center for Individual Rights 1233 20th Street, NW, Suite 300 Washington, DC 20036 202−833−8400ext 109 Email: hajec@cir−usa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
George W.C. McCarter McCarter &Higgins 39 Avenue of the Common Suite 200 Shrewsbury, NJ 07702 (732) 544−5050 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Evan Rosman Center For Individual Rights 1233 20th Street, NW Suite 300 Washington, DC 20036 (202) 833−8400 Fax: 202−833−8410 Email: rosman@cir−usa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Hajec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George W.C. McCarter

Case: 1:96-cv-374
Movant Kurt Brunkhorst TERMINATED: 01/22/2003
Movant Ruben Miranda Plaintiff United States of America

As of: 09/10/2010 09:20 PM EDT 2 of 65
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Evan Rosman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George W.C. McCarter (See above for address) TERMINATED: 01/22/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Evan Rosman (See above for address) TERMINATED: 01/22/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Evan Rosman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Esther Gwen Tamburo U.S. Department of Justice E,ployment Litigation Section 950 Pennsylvania Ave, Nw Washington, DC 20530 202−616−1578 Fax: 202−514−1105 Email: esther.tamburo@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John M Gadzichowski , United States Dept. of Justice Civil Rights Division, Emp. Lit. Section Civil Rights Division/Employment 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4609 Washington, DC 20530
202−514−3834 Fax: LEAD ATTORNEY ATTORNEY TO BE NOTICED
Luis A. Lavin United States Department of Justice Civil Rights Division P.O. Box 65968 Washington, DC 20035−5968 514−0798 TERMINATED: 02/03/2004 LEAD ATTORNEY
Brenda Berlin

Case: 1:96-cv-374

As of: 09/10/2010 09:20 PM EDT 3 of 65
United States Department of Justice Civil Rights Division P.O. Box 65968 Washington, DC 20035−5968 (202) 514−7013 TERMINATED: 02/03/2004
Charles E. Leggott U.S. Department of Justice Civil Division 950 Pennsylvania Avenue, N.W. Employment Litigation Section Patrick Henry Building, Room 4028 Washington,, DC 20530 (202)514−0548 Fax: (202)514−1005 Email: charles.leggott@usdoj.gov TERMINATED: 03/30/2007
Christine M. Roth United States Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Employment Litigation Section Patrick Henry Building , Room 4028 Washington, D. 20530 202−514−0548 TERMINATED: 03/30/2007
Deval L. Patrick United States Department of Justice Assistant Attorney General PO Box 65968 Washington, DC 20035−5968 202−514−0798 TERMINATED: 02/03/2004
Diana Embrey U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Employment Litigation Section Patrick Henry Building, Room 4028 Washington, DC 20530 202−353−2510 Fax: 202−514−1105 Email: diana.embrey@usdoj.gov TERMINATED: 03/30/2007
Dill Lee Office of the Attorney General U.S. Department of Justice P.O. Box 65808 Washington, DC 20035−5808 TERMINATED: 03/30/2007
Jodi B. Danis U.S. Department of Justice Civil Rights Employment Litigation Section 950 Pennsylvania Avenue, N.W. Employment Litigation Section Patrick Henry Building, Room 4028 Washington,, DC 20530 (202)514−5048 TERMINATED: 03/30/2007

Case: 1:96-cv-374

As of: 09/10/2010 09:20 PM EDT 4 of 65
Leslie T. Annexstein United States Department of Justice Civil Rights Division P.O. Box 65968 Washington, DC 20035−5968 (202) 514−7013 TERMINATED: 03/26/1997
Mary Beth Martin United States Department of Justice Civil Rights Division P.O. Box 65968 Washington, DC 20035−5968 (202) 514−7013 TERMINATED: 04/10/2002
Meredith L. Burrell U.S. Department of Justice Civil Rights Div.; Attn. Aaron Schuham 950 Pennsylvania Avenue, N.W. Employment Litigation Section, PHB Room 4036 Washington, DC 20530 Fax: (202) 514−1005 TERMINATED: 04/10/2002
Michael J. Alexis Department of Justice 950 Pennsylvania Avenue NW Phb 4035 Washington, DC 20530 202−305−3056 Fax: 202−514−1005 Email: michael.alexis@usdoj.gov TERMINATED: 04/09/2009 ATTORNEY TO BE NOTICED
Sanford Marc Cohen United States Attorneys Office Civil Division 147 Pierrepont Plaza Brooklyn, NY 11201−4454 (718) 254−6249 Fax: 718−254−6321 TERMINATED: 03/30/2007
Tana Lin U.S. Dept. of Justice/Civil Rights Division Employment Litigatin Section P.O. Box 65968 Washington, DC 20035−5968 (202) 514−7013 TERMINATED: 02/03/2004

V. Intervenor Plaintiff Wilbert McGraw

represented by Matthew B Colangelo NAACP Legal Denfense Fund 99 Hudson Street 16th Floor New York, NY 10021 212−965−2200 Email: mcolangelo@naacpldf.org

Case: 1:96-cv-374

As of: 09/10/2010 09:20 PM EDT 5 of 65
LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant New York City Board of Education
Defendant Department of Citywide Administrative Services
Defendant William J. Diamond Personnel Director, New York City Department of Personnel (in her official capacity)

represented by Drake Anthony Colley The City of New York Law Department Office of Corporation Counsel 100 Church Street New York, NY 10007 (212) 232−2492 TERMINATED: 01/10/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Profeta NYC Corporation Counsel 100 Church Street New York, NY 10007 212−227−3153 Fax: 212−788−0940 Email: lprofeta@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norma Ann Cote The City of New York Law Department 100 Church Street New York, NY 10007 212−788−0954 Fax: 212−788−0940 Email: ncote@law.nyc.gov TERMINATED: 06/16/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Drake Anthony Colley (See above for address) TERMINATED: 01/10/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Profeta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norma Ann Cote (See above for address) TERMINATED: 06/16/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Drake Anthony Colley (See above for address) TERMINATED: 01/10/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:96-cv-374
Defendant 115−13 120th Street
Intervenor Pedro Arroyo Intervenor Jose Casado Intervenor Celestino Fernandez Intervenor Kevin LaFaye Intervenor Steven Lopez Intervenor Anibal Maldonado

As of: 09/10/2010 09:20 PM EDT 6 of 65
Lawrence J Profeta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norma Ann Cote (See above for address) TERMINATED: 06/16/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Drake Anthony Colley (See above for address) TERMINATED: 01/10/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence J Profeta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Norma Ann Cote (See above for address) TERMINATED: 06/16/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:96-cv-374
Intervenor James Martinez
Intervenor Silvia Ortega de Green
Intervenor Nicholas Pantelides
Intervenor Dennis Mortensen
Intervenor Scott Spring
Movant Janet A. Caldero

As of: 09/10/2010 09:20 PM EDT 7 of 65
Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew B Colangelo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Hajec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Evan Rosman (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Hajec (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Evan Rosman (See above for address) ATTORNEY TO BE NOTICED
represented by Araceli Martinez−Olguin American Civil Liberties Union Women's Rights Project 125 Broad Street 18th Floor New York, NY 10004 (212)519−7819 Fax: (212)549−2580 Email: amartinez−olguin@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek J.T. Adler Hughes Hubbard &Reed LLP One Bettery Park Plaza New York, NY 10004 212−837−6086

Case: 1:96-cv-374

As of: 09/10/2010 09:20 PM EDT 8 of 65
TERMINATED: 07/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily J. Martin American Civil Liberties Union Women's Rights Project 125 Broad Street 18th Floor New York, NY 10004−2400 212−549−2615 Fax: 212−549−2580 Email: emartin@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus American Civil Liberies Union Women's Rights Project 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2688 Fax: 212−549−2580 Email: llapidus@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa R. Chernofsky The Dontzin Law Firm 6 East 81st St New York, NY 10028 212−717−2900 Fax: 212−717−8088 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Natalie C. Suhl Hughes Hubbard &Reed, LLP One Battery Park Plaza New York, NY 10004 TERMINATED: 07/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/30/1996 02/21/1996 03/04/1996
03/22/1996

# Docket Text
1 COMPLAINT filed and summons(es) issued for NYC Board of Education, City of New York, Lilliam Barriospaoli, NYC Dept. Personnel (Han, Jason) (Entered: 01/30/1996)
2 ORDER,dated 2/14/96 set status conference for 3:15 6/11/96 before Magistrate Robert M. Levy ( signed by Magistrate Robert M. Levy ) (Dobkin, David) (Entered: 02/21/1996)
3 WAIVER OF SERVICE Returned Executed as to NYC Board of Educati, City of New York, Lilliam Barriospaoli, NYC Dept. Personnel 2/2/96 Answer due on 4/2/96 for NYC Dept. Personnel, for Lilliam Barriospaoli, for City of New York, for NYC Board of Educati (Dobkin, David) (Entered: 03/04/1996)
4 WAIVER OF SERVICE Returned Executed as to NYC Board of Education. Answer due on 5/21/96 for NYC Dept. Personnel. (DiTomasso, Mike) (Entered: 03/22/1996)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 9 of 65

04/04/1996 04/05/1996 07/10/1996
10/30/1996
12/12/1996
12/19/1996 03/11/1997 03/12/1997

5 ANSWER to Complaint by NYC Board of Education, City of New York, Lilliam Barriospaoli, NYC Dept. Personnel. (Johnson, Tanya) (Entered: 04/04/1996)
6 ORDER dated March 30, 1996, endorsed on the letter dated 3/26/96 from Brenda Berlin, Atty., Employment Litigation Sect. with the U.S. Dept. of Justice, granting her application and resetting the initial status conference for 2:15 7/10/96 before Magistrate Robert M. Levy . ( signed by Magistrate Robert M. Levy ) (Vaughn, Terry) (Entered: 04/05/1996)
7 Calendar entry:, Before Magistrate Levy on 7/10/96 for an Initial Conference. Discovery to be completed by Liablity, 1/17/97; Fact 5/30/97; Expert. set status conference for 10:00 12/12/96 before Magistrate Robert M. Levy (Parties may appear by telephone if they wish) (1) Discovery, Re: Recruitment will be deferred until after determination of liability, re: examinations. (2) Pltff may take more than 10 depositions, upon a showing that there is a need for the depositions requested. The parties shall engage informal discovery to ascertain which deposition are necessary. If the parties reach agreement they should forward a letter to chambers to that effect. If there is a disagreement, they should forward a letter to chambers to that effect. If there is a disagreement, the parties shall call chambers and schedule a telephone conference. In preparation for the confernce, the parties may submit letters of up to 3 pages describing their respective positions. On or before 7/19/96, dfts shall provide "adverse impact. statistics. The parties shall attempt to reach a stipulation on these numbers on or before 8/8/96. Discovery of liability and damages shall be bifurcated. (Piper, Francine) (Entered: 07/16/1996)
8 Calendar entry: Before Ma Judge Levy on 10/30/96 case called; counsel for all sides present. Discovery due 2/21/97 . Next status conference set for 10:00 12/12/96 before Judge Frederic Block . Parties have agreed that there was no adverse impact re: the Parctical Test, but are still negotiating re: two remaining test. As to the 2 remaining tests, the parties have agreed to the raw number re: qualified test−takers, passers and persons determined to be non−qualified. Ms. Cote will review Government's analysis of the stitistics and advise Ms. Berlin by 11/29/96 whether deft will stipulate as to the tow remaining test. Accordingly, the discovery deadlines is extended four weeks to avoid possibly needless discovery re: adverse impact. Parties will advise at next conference whether they will stipulatere: adverse impact. (Romano, Dan) (Entered: 11/06/1996)
9 Calendar entry:Before Mag. Levy on 12/12/96 at 10:00a.m. Status of document discovery: deft is searching for documents compiled by Dr. Ramos who has not worked for Dept of Personnel for 2 years; deft recentlly discovered new documents, which were shipped to plaintiff this week. Parties cannot stipulate as to adverse impact statistics compliedby USA Parties agree that because deft is still producing documents and because discovery willbe needed on adverse impact, fact discovery is extended to 4/30/97; expert discovery is extended to 9/30/97. Parties agree that, following initial exchange of expert reports, parties may supplement their expert reports by 6/30/97. set discovery due for 4/30/97 , set status conference for 10:00 5/16/97 before Magistrate Robert M. Levy (Dobkin, David) (Entered: 12/16/1996)
208 LETTER dated 12/19/96 from Norma A. Cote to Judge Levy enclosing a copty of an order in Guinaryd v. the City of NY 89−Cv−1434 (EHN) where defts did not have to produce an expert report unitl after plaintiffs had produced theirs. (Ellern, Lisa) (Entered: 10/11/2000)
10 LETTER dated 2/21/97 from Asst. Corp. Counsel, Norma Cote, to Magistrate Levy, requesting a protective order against portions of plaintiff's Notice of Deposition of NYC Dept. of Personnel and against an item in the request for production of documents. (Asreen, Wendy) (Entered: 03/11/1997)
11 Calendar entry: before Mag Judge Levy on 3/12/97. Discovery is to be completed by 11/30/97 . Status conference set for 10:30 12/16/97 before Magistrate Robert M. Levy by telephone . Deft's motion for a protective order, dated 2/21/97, is resolved as follows: 1) Pltff states, inter alia, that relatively recent information concerning the use of provisional hiring requires discovery concerning possible discrimination in provisional hiring. Accordingly, the motion for a protective order relating to Topics 13,18, and 20 of the Department of Personnel Notice of Depostion ("DOP Notice") and Topics 4,8,12,13, and 14 of the Board of Education Notice of

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 10 of 65

03/18/1997 03/18/1997 03/18/1997 03/26/1997 04/09/1997
04/28/1997 05/12/1997 08/25/1997 09/15/1997 09/15/1997 09/15/1997

Depostion ("BD. of Ed. Notice") is DENIED. 2) Topic 1 of the DOP Notice is narrowed as follows: Pltff may inquire regarding a) policies, practices and procedures relating to the development of civil service exams in general; and b) the development of specific school custodian examinations at issue in this litigation. 3)Deft and pltff will resolve the 2 remaining issues re: Bd. of Ed. Notice as follows: a) the parties will submit a stipulation memorializing the agreement reached today concering Topics 12, and b) deft will attempt to generate a computer print−out providing the information sought under Topics 3, and 4 (dates of hire etc.). 4) Dept. of Personnel Document Request 1: under the supervision of Bd. of Ed. employees, the US will send paralegals and attorneys to pull ( if requested by Bd. of Ed.) up to 450 files, review and copy performance ratings, and provide a copy of defts' counsel. Pltff will provide a copier, if necessary. At this time the order is limited to files contained in the plant manager's office. The parties stipulate that archived files of inactive or retired custodians are exempt form this review. This ruling assumes that defts can produce a list of hire dates of relevant custodians. The discovery schedule is ajusted. Parties to sbumit proposed revised schedule to chambers. (Romano, Dan) (Entered: 03/17/1997)
12 LETTER dated 2/20/97 from Brenda Berlin to Judge Levy requesting a phone conference to address two discovery disputes &to discuss the fact discovery schedule. Filed with attachments. (Greves, Liz) (Entered: 03/18/1997)
13 LETTER dated 3/11/97 from Norma A. Cote to Judge Levy requesting a protective order against portions of ptlff's 3/3/97 Amended Notice of Rule 30(b)(6) Deposition of deft NYC Board of Ed. (Greves, Liz) (Entered: 03/18/1997)
14 LETTER dated 3/10/97 from Luis A. Lavin to Judge Levy requesting that the defts' objections to the Notice of Deposition to the Board also be heard &resolved during the 3/12/97 discovery conference. Filed with attachments. (Greves, Liz) Modified on 03/18/1997 (Entered: 03/18/1997)
15 NOTICE of attorney appearance for United States by Luis A. Lavin. (Romano, Dan) (Entered: 03/26/1997)
16 Calendar entry: Before Mag Judge Levy on 4/9/97. Discovery conference held. Deft objects to request to produce list of all provisional hires for the postion of custodian and custodian engineer, as burdensome and of minimal benefit. Provisional custodians and engineers were hired after the expiration of list 5040 (in effect 1987−1990) and the custodian engineer list (1990−1994). Following a conference, parties agree to stipulate that provisionals listed on 1993 and 1996 ethnic surveys and 1997 payroll printout are a statistically valid sample or pool for purposes of this litigation. Parties to submit a proposed scheduling order and stipulation. (Romano, Dan) (Entered: 04/15/1997)
17 ORDER dated 4/14/97 amending discovery schedule ( signed by Magistrate Robert M. Levy ) (Dobkin, David) (Entered: 04/28/1997)
18 SCHEDULING ORDER, dated 4/29/97 that the deft shall provide certain documentation by 4/18/97. Expert Discovery cutoff 2/20/98 ; ( signed by Magistrate Robert M. Levy ). See document #18 for further amendments. (Romano, Dan) (Entered: 05/12/1997)
19 Stipulation regarding Provisional Hires. w/attachments. (Dobkin, David) (Entered: 08/25/1997)
21 Calendar entry:, before Mag Judge Levy on 9/15/97. Case called; status conference held. Next status conference set for 10:30 12/16/97 before Magistrate Robert M. Levy . Upon consent, parties request for brief extension of fact discovery is granted. Paries to submit confirming letter. (Romano, Dan) (Entered: 09/30/1997)
22 LETTER dated 9/12/97 from Luis Lavin to Clerk of Court, enclsoing an orignal and a copy of pltff's notice of appearance and substitution of counsel. (Romano, Dan) (Entered: 10/02/1997)
23 NOTICE of attorney appearance for United States by Aaron D. Schuham as an additional attorney for the plaintiff. (DiTomasso, Mike) (Entered: 10/06/1997)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 11 of 65

09/24/1997
12/02/1997 12/02/1997
12/05/1997 12/08/1997 12/15/1997
12/16/1997 12/23/1997 01/08/1998 01/12/1998 01/20/1998 01/27/1998 02/02/1998 02/02/1998

20 ORDER, dated 9/17/97 that the time for edeft to respond to pltff's forth request for prodcution of documents and first request for admissions is extended to 9/19/97; also that the discovery schedule in this case should be amended as follows, Fact Discovery shall be extended to 10/3/97; Expert reports shall be exchanged on 11/8/97; Expert reports shall be exchanged on 11/18/97; Supplemental expert reprots shall be filed by 1/27/98. ( signed by Magistrate Robert M. Levy ). (Romano, Dan) (Entered: 09/24/1997)
174 LETTER by USA requesting that expert reports prepared by Bobko and Assessment Alternatives, Inc. be struck and that Philip Bobko be precluded from testifying at tial dated 12/2/97 from AAG Luis A. Lavin to Judge Levy. (Ludwig, Michael) (Entered: 05/15/2000)
175 LETTER reqesting telphone hearing to address the litigation of the liability portion of the US's adverse impact and recruitment claims in 2 separate phases dated 12/2/97 from AAG Aaron Schumann to Judge Levy, including attachment A 7/10/96 calendar and Attachment B − Order Amending Discovery Schedule− (resumbitted by fax to court for docketing, 5/15/00). (Ludwig, Michael) Modified on 05/15/2000 (Entered: 05/15/2000)
204 LETTER dated 12/5/97 from Aaron D. Schuham to Judge Levy responding to dfts' Dec. 5, 1997 application to seek additional time to respond to the United State's 2 letter applications submitted to the court on Dec. 2, 1997. (Ellern, Lisa) (Entered: 10/11/2000)
203 LETTER dated 12/8/97 from Norma A. Cote to Judge Levy responding to the Dec. 5, 1997 letter from Aaron Schumham. (Ellern, Lisa) (Entered: 10/11/2000)
24 ORDER, endorsed on letter dated 12/5/97 from Norma Cote to the Magistrate Levy requesting additional time to put in a written response to the letter applications of the pltff. The application is granted. The Court will set the schedule regarding pltff's application to try the recruitment and adverse impact claims together when it meets with the parties at the 12/16/97 conf. ( signed by Magistrate Robert M. Levy ) (Jean (Entered: 12/15/1997)
25 Calendar entry: before Magistrate Levy a discovery conference was held with all parties present. Oral argument on the motion is scheduled for 3/13/98 @ 3:00pm. (Jean (Entered: 12/18/1997)
26 TRANSCRIPT of Civil Cause for Discovery Conference before Magistrate Levy filed for for dates of 12/16/97 (Jean (Entered: 12/23/1997)
27 LETTER dated 12/31/97 from Norma A. Cote to Mag. Levy, Recapitulating the rulings made at the judicial conference on 12/16/97. (Piper, Francine) (Entered: 01/08/1998)
28 NOTICE of attorney appearance for NYC Board of Educati, City of New York, Lilliam Barriospaoli, NYC Dept. Personnel by Drake Anthony Colley (Jean (Entered: 01/12/1998)
29 LETTER dated 1/16/98 from Drake Colley to Magistrate Levy responding and opposing to pltff's motion to litigate its recruitment claim (Jean (Entered: 01/20/1998)
30 LETTER dated 1/26/98 from Luis Laven to Magistrate Levy requesting that the Govt's motions to compel and for sanctions be granted. (Jean (Entered: 01/27/1998)
31 LETTER dated 1/29/98 from Aaron Schulman to Magistrate Levy regarding pltff's reply memorandum in support of its application to adverse and impact recruitment claims. (Jean (Entered: 02/02/1998)
32 Calendar entry: Before Magistrate Levy−Discovery Conference by telephone held. Defendant shall not direct expert witness Dr. Reily not to answer questions on grounds of relevance, as defendant has not shown prejudice or harassment. Galeano, Sonia (Entered: 02/09/1998)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 12 of 65

03/02/1998 03/04/1998 03/06/1998
03/12/1998 03/13/1998
03/13/1998 03/17/1998
03/17/1998
03/17/1998 03/17/1998 03/19/1998 03/27/1998 04/20/1998 04/29/1998 05/19/1998
05/26/1998

33 LETTER dated 2/27/98 from Drake Colley to Magistrate Levy requesting a modification of the present expert discovery order. (Jean (Entered: 03/02/1998)
34 LETTER dated 3/3/98 from Drake Colley to Magistrate Levy, requesting the modification of the expert discovery schedule. (Jean (Entered: 03/04/1998)
35 ORDER, endorsed on letter dated 2/27/98 from D. Colley to Magistrate Levy, requesting a modification of the discovery order. Exchange of expert report is stayed pending a final determination at the 3/13/98 conference. ( signed by Magistrate Robert M. Levy, dated 3/4/98 ) (Jean (Entered: 03/06/1998)
36 LETTER dated 3/9/98 from Luis Lavin to Magistrate Levy, addressing factual and misrepresentations in the deft's 3/3/98 "reply" letter. (Jean (Entered: 03/12/1998)
40 Calendar entry: Before Magistrate Judge Levy−motions argued orally. Decision reserved on application to consolidate discovery and trial of liability issues relating to adverse impact and recruitment claims, to enable Mr. Colley to respond in writing, by 3/27/98, to plaintiff's reply letter. Plaintiff's motion to compel is granted as set forth on the record. Reply expert affidavits re: adverse impact shall be exchanged simultaneously by 4/17/98; close of expert depositions re: adverse impact 6/19/98. If recruitment claim tried with adverse impact, discovery shall begin 6/22/98 and end 10/30/98. Next conference set for 10:00 on 11/13/98 . (Reddy, Lisa) (Entered: 03/17/1998)
170 Calendar entry: Case called before Magistrate Levy for an Oral Argument (Jean (Entered: 04/25/2000)
37 LETTER dated 2/25/98 from Luis A. Lavin to Magistrate Judge Levy, requesting that the pending motion to compel be heard and resolved immediately after the 3/13/98 oral argument on the recruiting motion. (Reddy, Lisa) (Entered: 03/17/1998)
38 LETTER dated 1/16/98 from Drake A. Colley to Magistrate Judge Levy, in opposition to plaintiff's 12/2/97 motion to litigate its recruitment claim at the same time as its claim of liability for defendant's use of 3 civil service exams to select applicants for hiring. (Reddy, Lisa) (Entered: 03/17/1998)
39 LETTER dated 3/9/98 from Luis A. Lavin to Magistrate Judge Levy, in response to defendants' 3/3/98 reply letter. (Reddy, Lisa) (Entered: 03/17/1998)
41 TRANSCRIPT of Motion before Magistrate Levy filed for dates of 3/13/98. Court Reporter: M. Picozzi. (Jean (Entered: 03/17/1998)
42 LETTER dated 3/17/98 from Aaron Schuham to Magistrate Levy, providing additional legal authority supporting the position of the Court to try the recruitment and adverse impact claims. (Jean (Entered: 03/19/1998)
43 LETTER dated 3/27/98 from Drake Colley to Magistrate Levy, requesting that the Court deny pltff's motion that the adverse impact and recruitment claims be tried simultaneously. (Jean (Entered: 03/27/1998)
44 LETTER dated 3/27/98 from Drake Colley to Magistrate Levy, regarding a enclosed copy of the defts' supplemental experts. (Jean (Entered: 04/20/1998)
45 LETTER dated 4/23/98 from Luis Lavin to Magistrate Levy, confirming that the U.S. supplemental expert report were timely served on defts' counsel. (Jean (Entered: 04/29/1998)
46 ORDER, endorsed on letter dated 5/13/98 from Aaron Schuham to Magistrate Levy, regarding the ptlff's pending motion to try the adverse impact and recruitment claims. set status conference for 2:15 5/21/98 before Magistrate Robert M. Levy ( signed by Magistrate Robert M. Levy ) (Jean (Entered: 05/19/1998)
47 Calendar entry: Before Magistrate Levy on 5/21/98 for a telephone conference. Plaintiff's motion to try the adverse impact and recruitment claims together in this case is granted, for the reasons set forth by the United States at oral argument on 3/13/98 and in its supporting papers. The Court will re−evaluate the continuing appropriateness of this decision during the course of the trial. (Gonzalez, Mary) (Entered: 05/26/1998)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 13 of 65

05/26/1998 06/01/1998 06/06/1998 06/10/1998
06/11/1998 06/15/1998 07/07/1998 08/03/1998 08/04/1998
08/13/1998 08/13/1998 08/14/1998 08/17/1998
08/18/1998

48 LETTER dated 2/27/98 from Norma Cote to Magistrate Levy, opposing deft's motion to modify or extend in any manner the current expert discovery schedule. (Jean (Entered: 05/26/1998)
49 LETTER dated 5/28/98 from Luis Lavin to Magistrate Levy, responding to the defts' motions to extend discovery. (Jean (Entered: 06/01/1998)
52 NOTICE of attorney appearance for United States by Tana Lin, U.S. Dept. Of Justice. (Glenn, Marilyn) (Entered: 06/16/1998)
54 Calendar entry: before Magistrate Judge Levy−Discovery/Telephone Conference held. Defendants' motion for 3 weeks extension of expert discovery on testing claim is granted, with the understanding that discovery on the recruitment claim will not be delayed. Defendants' Rule 26 (A)(1) disclosure on the recruitment claim shall be served no later than 07.03.98. Defendants' motion for reconsideration of this Court's 03.13.98 ruling requiring defendants to produce documents responsive to Paragraph 3 of Plaintiff's First Expert Request for Production of Documents, served 11.26.97, is denied both as untimely and on the merits. Plaintiff's motion for sanctions is denied. Responsive documents shall be produced no later than 06.17.98. Galeano, Sonia (Entered: 07/15/1998)
50 ORDER, endorsed on letter dated 5/27/98 from Drake Colley to Magistrate Levy, requesting the Court to reconsider its ruling as to the production of documents. Matters resolved as set forth during 6/10/98 conference. ( signed by Magistrate Robert M. Levy, dated 6/10/98 ) (Jean (Entered: 06/11/1998)
51 LETTER dated 6/2/98 from Drake Colley, Asst. Corp. Counsel, to Magistrate Levy in opposition to plaintiff's motion for sanctions. (Johnson, Tanya) (Entered: 06/15/1998)
53 Disclosure of interested parties by United States (Jean (Entered: 07/07/1998)
55 LETTER dated 7/29/98 from Aaron Schuham to Magistrate Levy, concerning deft's expert witness Dr. Reilly's time to submit his report. (Jean (Entered: 08/03/1998)
56 ORDER, endorsed on letter dated 7/28/98 from Drake Colley to Magistrate Levy, requesting that the Court allow defts to submit a report responding to pltff's second expert reports. The application is granted. Deft shall file Dr. Reilly's rebuttal expert report by 8/14/98. ( signed by Magistrate Robert M. Levy, dated 7/30/98 ) (Jean (Entered: 08/04/1998)
57 LETTER dated 8/11/98 from Tana Lin to Magistrate Levy, requesting a hearing on the two motions filed. (Jean (Entered: 08/13/1998)
209 LETTER dated 8/13/98 from Drake A. Colley to Judge Levy responding to plaintiff's application to the court on its motion to order the simultaneous exchange of expert reports for the recruitment claim. Letter includes attachments A−C. (Ellern, Lisa) (Entered: 10/11/2000)
58 Calendar entry: Case called before Magistrate Levy for discovery conference. Counsel for all sides present. set status conference for 10:30 8/20/98 before Magistrate Robert M. Levy . (Jean (Entered: 08/17/1998)
206 LETTER dated 8/17/98 from Tana Lin, Attorney from the Employment Litigation Section of the U.S. Dept. of Justice, Civil Rights Division to Judge Levy reviewing the court's order regarding required disclosures, to confirm a scheduled teleconference call for Aug. 19, 1998 and to enclose review copies of the following documents (1) the dfts' response to the USs' first request for production of documents (2) the USs' Second request for production of documents. (Ellern, Lisa) (Entered: 10/11/2000)
210 LETTER dated 8/18/98 from Tana Lin to Judge Levy enclosing a copy of the Dft's response to the United States' Second REquest for Production of Documents for the hearing on objections which will be held on Aug. 19, 1998 at 12:00 PM. Letter includes attachments A−D. (Ellern, Lisa) (Entered: 10/11/2000)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 14 of 65

08/19/1998 09/21/1998 09/21/1998
10/07/1998
10/26/1998 11/04/1998 11/24/1998 01/28/1999
02/12/1999
02/16/1999 03/10/1999 03/15/1999 03/16/1999 03/25/1999 04/06/1999 04/13/1999 04/15/1999

59 Calendar entry: Before Magistrate Judge Levy− conference held. Rulings made re: document requests. Plaintiff's counsel will memorialize. (Reddy, Lisa) (Entered: 08/28/1998)
60 LETTER dated 8/25/98 from Aaron Schuham to Magistrate Levy, objecting to deft's application to file an additional expert report. (Jean (Entered: 09/21/1998)
207 LETTER dated 9/21/98 from Tana Lin to Judge Levyto memorializethe following concerning the United States' First and SEcond Requests for Production of Documents: (1) the requests withdrawn by the US (2) the agreements reached by the parties during their meet and confer sessions on Aug. 19, 1998 (3) the rulings of the court made at the telephonic hearing heald on Aug. 20, 1998 as to the remaining requests. Parties also request the court to resolve conflicting recollections on 2 issues. (Ellern, Lisa) (Entered: 10/11/2000)
61 STIPULATION and ORDER Pltff withdraws with prejudice its Document Request numbers 24 and 45 in Pltff United States' First request for the production of documents signed by Magistrate Robert M. Levy, dated 10/1/98 (Jean (Entered: 10/07/1998)
62 ORDER, endorsed on letter dated 10/13/98 from Luis Lavin to Magistrate Levy, requesting the Court to enter a firm scheduling order. Application granted. ( signed by Magistrate Robert M. Levy ) (Jean (Entered: 10/26/1998)
63 LETTER dated 10/30/98 from Luis Lavin to Magistrate Levy, requesting that the hearing scheduled for 11/13/98 be taken off the Court's calendar. (Jean (Entered: 11/04/1998)
64 ORDER, endorsed on letter dated 10/30/98 from Luis Lavin to Magistrate Levy, requesting that the hearing set for 11/13/98 be taken off the calendar. Application granted. ( signed by Magistrate Robert M. Levy ) (Jean (Entered: 11/24/1998)
65 ORDER, endorsed on letter dated 1/6/99 from Luis Lavin to Magistrate Levy, requesting that the stipulation regarding provisional hires be classified as sealed. Application granted. The Clerk's Office is respectfully requested to seal entry 19. ( signed by Magistrate Robert M. Levy, dated 1/7/99) (Jean (Entered: 01/28/1999)
66 STIPULATION and ORDER The New York City Dept of Citywide Administrative Services should be substituted as a deft in place of New York City Dept of Personnel, and William J. Diamond, Commissioner, should be substituted in place of Lillima Barrios−Paoli. signed by Magistrate Robert M. Levy, dated 2/1/99 (Jean (Entered: 02/12/1999)
67 SETTLEMENT AGREEMENT submitted by both parties. (Jean (Entered: 02/16/1999)
68 STANDARD REFERRAL ORDER the case is referred to Magistrate Levy for the pre−trial purposes.( signed by Judge Frederic Block, dated 3/4/99) (Jean (Entered: 03/10/1999)
69 SETTLEMENT AGREEMENT submitted by both parties (unsigned by Judge) (Jean (Entered: 03/15/1999)
71 LETTER dated 3.12.99 from Andrew Werner advising the COurt that he objects to the settlement agreement in this case. (Hunter, Tara) (Entered: 03/29/1999)
70 LETTER dated 3/19/99 from Harry Santana, School Custodian, to Whom It May Concern, advising the court of his address and phone number. (Murphy, Margaret) (Entered: 03/25/1999)
72 JOINT MOTION TO SCHEDULE A FAIRNESS HEARING TO CONSIDER OBJECTIONS TO SETTLEMENT AGREEMENT (Jean (Entered: 04/06/1999)
73 NOTICE of various letter regarding provisional custodians. (Jean (Entered: 04/13/1999)
74 LETTER dated 4/6/99 from Richard M. Blumberg, Custodian, to Whom It May Concern, advising that the civil service exam is the best and most fair way to hire people for the custodian position. (Murphy, Margaret) (Entered: 04/20/1999)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 15 of 65

04/21/1999 04/26/1999 04/26/1999
04/26/1999 04/26/1999 04/26/1999 04/26/1999 04/26/1999 04/26/1999
04/26/1999 04/26/1999 04/26/1999 04/26/1999 04/26/1999

75 LETTER dated 4/19/99 from Aaron Schuham to Magistrate Levy, requesting a status conference for 5/13/99. (Jean (Entered: 04/21/1999)
76 LETTER dated 4/22/1999 from GIOVANNI A. ALAIMO, SCHOOL CUSTODIAN to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
77 LETTER dated 4/22/1999 from GIOVANNI A. ALAIMO, SCHOOL CUSTODIAN to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the Basis of retroactive seniority. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
78 LETTER dated 3/25/1999 from HUMBERTO FERNANDEZ, to CLERK OF COURT in opposition to the recent settlement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
79 LETTER dated 4/14/1999 from FRANK J. ASTARITA, SCHOOL CUSTODIAN to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
80 LETTER dated 4/14/1999 from EDWARD MC LINDEN, JR. to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
81 LETTER dated 4/14/1999 from ANTHONY ASTARITA to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
82 LETTER dated 4/14/1999 from TRIFON A. RADEF, to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
83 LETTER dated 4/14/1999 from MICHAEL FINNERAN, SCHOOL CUSTODIAN, TO CATE GREEN PARALEGAL SPECIALIST US JUSTICE DEPT, in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
84 LETTER undated from JOHN KELLY to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
85 LETTER dated 4/21/1999 from JAMES G. AMALFITANO to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
86 LETTER dated 4/20/1999 from MICHAEL B. FINNERAN to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
87 LETTER dated 4/14/1999 from WILLIAM C. ZELL to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of qualifications. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
89 LETTER 4/14/1999 from JOSEPH MCLINDEN to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of qualifications. (Forwarded to

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 16 of 65

04/26/1999 04/26/1999 04/26/1999 04/26/1999
04/26/1999
04/26/1999 04/26/1999 04/26/1999 04/26/1999 04/26/1999 04/26/1999 04/26/1999

Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
90 LETTER dated 4/23/1999 from REIDAR J. HERVOLD, SCHOOL CUSTODIAN to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of retroactive seniority. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
91 LETTER dated 4/14/1999 from REIDAR J. HERVOLD, School Custodian to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of qualifications. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
92 LETTER dated 4/21/1999 from LOUIS CELENTANO to CLERK OF COURT stating his opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
93 LETTER dated 4/14/1999 from KAREN CASEY to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of qualifications. [Attached is a ltr. dtd. 4/14/1999 from Kerry Casey to Clerk of Court in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education.] (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
94 LETTER dated 4/14/1999 from VINCENT MCFARLAND to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of qualifications. [Attached is a letter dtd. 4/23/1999 from Vincent McFarland to Clerk of Court in opposition to the recent settlement agreement on the basis of retroactive seniority. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
95 LETTER dated 4/23/1999 from Edward V. Morgan to CLERK OF COURT expressing his objection to the settlement. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
96 LETTER dated 4/23/1999 from MICHAEL FARRELL, SCHOOL CUSTODIAN to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
97 LETTER dated 4/14/1999 from EUGENE J. DUFFY, JR. to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of qualifications. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
98 LETTER dated 4/22/1999 from STEVEN M. MARMO, to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of retroactive seniority. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
99 LETTER dated 4/14/1999 from THOMAS J. KEANEY to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
100 LETTER dated 4/21/1999, from MARCOS PERALTA to CLERK OF COURT requesting the addition of his name to the list to become permanent Custodian Engineer with the NYC Board of Education. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/28/1999)
101 LETTER dated 4/19/1999 from IRENE WOLKIEWICZ to CLERK OF COURT objecting to the Retroactive Seniority date and Provisional Hire date, listed in Appendix A. The ltr. states the Provisional hire date and Retroactive seniority date is listed incorrectly in Appendix A as 11/7/1999. The ltr. requests the Court's approval of the correction of the date to 6/20/1994. (Forwarded to Chambers.) [Attached to the ltr. is a copy of the check statement for payroll date 7/14/1994, and a copy of an appointment ltr. dated 6/9/1994 from the Employment Unit at the

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 17 of 65

04/26/1999 04/26/1999 04/26/1999 04/26/1999
04/26/1999
04/27/1999 04/28/1999 05/13/1999 05/25/1999 05/26/1999 05/27/1999

NYC Board of Education as a Provisional School Custodian.] (Mackey, Donna) (Entered: 04/28/1999)
102 LETTER dated 4/19/1999 from PATRICK PIZZO to CLERK OF COURT stating he should be included on the list of offerees for the settlement of the case. (Forwarded to Chambers.) (entered as per wa) (Mackey, Donna) (Entered: 04/28/1999)
103 LETTER dated 4/23/1999 from Arthur Polosino to Clerk of Court in opposition to the recent settlement agreement between the US Justice Department and the NYC BOARD OF EDUCATION on the basis of retroactive seniority. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/28/1999)
104 LETTER dated 4/15/1999 from ILYA ASHMYAN to CATE GREEN PARALEGAL SPECIALIST, USDOJ requesting the addition of his name to the settlement agreement between the US Justice Department and the NYC Board of Education . (Forwarded to Chambers.) [Attached are 2 copies of this letter.] (Mackey, Donna) (Entered: 04/28/1999)
105 LETTER dated 4/19/1999 from KEVIN J. LaFaye to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of discrimination. [Attached are copies of Mr. LaFaye's father's birth certificate, death certificate, US Coast Guard ID Card, and Mr. LaFaye's application for examination.] (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/28/1999)
106 LETTER dated 4/21/1999 from Dorothy Taylor to Clerk of the Court stating she should be included as an offeree in this settlement. [Attached to the letter is a copy of the candidate's personal record of answers for exam # 5040, ltr. dtd. 10/27/1995 from the NYC Board of Education arranging an interview for the position of Provisional Custodian, ltr. dtd. 11/30/1995 from the NYC Board of Education to Ms. Taylor stating there were other candidates more qualified for the position, ltr. dtd. 10/2/1996 from Ms. Taylor to Mr. Lonergen stating she is qualified to handle the duties of Provisional School Custodian, and a copy of the Notice of Result for exam # 1074 for Ms. Taylor.] (Forwarded to Chambers.) (Mackey, Donna) Modified on 04/28/1999 (Entered: 04/28/1999)
88 LETTER undated from WILLIAM C. ZELL to CLERK OF COURT in opposition to the recent settlement agreement between the US Justice Department and the NYC Board of Education on the basis of retroactive seniority. (Forwarded to Chambers.) (Mackey, Donna) (Entered: 04/27/1999)
107 ORDER, endorsed on letter dated 4/19/99 from Aaron Schuham to Magistrate Levy, requesting a status conference for 5/13/99. Application granted; Conference set for 5/13/99 @ 4:00pm. ( signed by Magistrate−Judge Robert M. Levy ) (Jean (Entered: 04/28/1999)
110 Calendar entry: Case called before Magistrate Levy for an status conference. Tape# 99/56:3357−5765. Counsel for all sides present. (Jean (Entered: 06/02/1999)
108 MEMORANDUM by City of New York in support of entry of settlement agreement and in response to objections (Jean (Entered: 05/25/1999)
109 LETTER dated 5/17/99 from George W.C. McCarter to Judge Block, regarding the briefing schedule as pltff's motion to intervene. (Jean (Entered: 05/26/1999)
119 Calendar entry: Case called before Judge Levy for a Fairness Hearing on 5/27/99. Proceeding reported by Court Reporter Dominick Tursi. Appearances: For plaintiff − Aaron Schuham and Tana Lin of US Dept. of Justice, Civil Rights Division and for defendant − Norma Cote and Drake Colley of NYC Law Dept., Office of Corp Counsel, George McCarter on behalf of Intervenors John Brennar, James Ahearn, and James R. Brunkhors, and Stephen Pascal on behalf of Willaim O'Keefe, and numerous objectors. Objectors in attendance each received a packet entitled "Notice &Instructions" re: procedure for speaking at hearing and objectors filed form for each category they wished to speak on. 9 objectors spoke on categroy one, 4 objectors spoke on category 2, 8 objectors spoke on category 3, 1 objector spoke on category 4, and 18 objectors spoke on category 5 (note: objector 9−14 and

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 18 of 65

05/27/1999
05/27/1999 05/27/1999
06/02/1999 06/02/1999 06/02/1999 06/03/1999
06/04/1999 06/04/1999 06/07/1999 06/08/1999
06/10/1999 06/10/1999 06/11/1999 06/15/1999 06/15/1999 06/18/1999
06/18/1999 06/18/1999

15−17 did not file forms). Four Exhibits made part of the record in addition to packet. (Ludwig, Michael) (Entered: 06/23/1999)
120 Exhibit/Exhibit list: Exhibit 1 − Answer sheet for exam No. 1074; Exhibit 2 − copy of previously submitted objection letter by Barbara A. Michelic; Exhibit 3 − Objection Forms filed day of hearing by speakers; 4 − Packet entitled "Notice &Instructions" given to each objector in attendance at hearing. (Ludwig, Michael) (Entered: 06/23/1999)
121 TRANSCRIPT filed for Fairness Hearing for dates of 5/27/99. (Ludwig, Michael) (Entered: 06/23/1999)
125 359 TOTAL LETTERS post marked before April 27,1999 from Objectors/Interested Persons who may be affected by the terms of the Settlement Agreement in this case to Judge Levy, including previously docket entries 70, 71, 74, and 76−107. (Ludwig, Michael) (Entered: 07/01/1999)
111 CONSENT to trial by Magistrate; If appealed, matter will be referred to Circut Court. (Jean (Entered: 06/02/1999)
CASE reassigned to Magistrate−Judge Robert M. Levy (Jean (Entered: 06/02/1999)
CASE NO LONGER REFERRED TO Magistrate−Judge Robert M. Levy. (Lui, Lin) (Entered: 06/08/1999)
122 LETTER advising parties consent to extend time to serve opposition papers to the pending motion to intervene to 6/9/99 and the reply to 6/21/99, dated 6/3/99 from Norma A. Cote to Judge Levy (Endorsement on document #122: So Ordered. Robert Levy, 6/8/99). (Ludwig, Michael) (Entered: 06/24/1999)
112 DECLARATION OF BERNARD R. SISKIN (Jean (Entered: 06/04/1999)
113 LETTER dated 5/25/99 from Aaron Schuham to Magistrate Levy, with regard to the settlement agreement of the United States. (Jean (Entered: 06/04/1999)
123 LETTER enclosing US' response to the Motion to Intervene of John Brennan, James Ahearn and Kurt Brunkhorst, dated 6/7/99 from Aaron D. Schuham to Judge Levy (Ludwig, Michael) (Entered: 06/24/1999)
124 MEMORANDUM by United States in opposition to the Motion to Intervene of John Brennan, James Ahearn, and Kurt Brunkhorst, submitted by Marybeth Martin, Tana Lin and Aaron D. Schuham, dated 6/7/99. (Ludwig, Michael) (Entered: 06/24/1999)
114 MEMORANDUM by City of New York in opposition to motion to intervene (Jean (Entered: 06/10/1999)
115 DECLARATION OF NORMA COTE Re: opposition to the motion to intervene (Jean (Entered: 06/10/1999)
116 RESPONSE by United States to motion to intervene (Jean (Entered: 06/11/1999)
117 MEMORANDUM by William J. Diamond, City of New York, NYC Board of Educati in opposition to motion to intervene (Jean (Entered: 06/15/1999)
118 DECLARATION OF Norma A. Cote Re: opposition to the motion to intervene (Jean (Entered: 06/15/1999)
126 LETTER enclosing Motion to Intervene, Certification of John Brennan, Brief in Support of Motion to Intervene and Reply brief in support of motion to intervene dated 6/18/99 from George W. C. McCarter to Judge Levy . (Ludwig, Michael) (Entered: 07/01/1999)
127 MOTION TO INTERVENE by John Brennan, James G. Ahearn, and Kurt Brunkhorst submitted by Attorneys George McCarter and Michael Rosman, 6/18/99. Motion hearing (Ludwig, Michael) (Entered: 07/01/1999)
128 CERTIFICATION OF Intervenor JOHN BRENNAN, dated 4/30/99. (Ludwig, Michael) (Entered: 07/01/1999)

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06/18/1999 06/18/1999 06/25/1999
07/02/1999 07/02/1999 07/19/1999 07/21/1999 08/27/1999 09/01/1999 09/01/1999 01/11/2000 01/11/2000 02/09/2000
02/09/2000 02/10/2000

129 MEMORANDUM in support of Motion to Intervene submitted by Attorneys George McCarter and Michael Rosman on behalf of Intervenors John Brennan, James Ahearn, and Kurt Brunkhorst, dated 5/4/99 (filed w/court 6/18/99). (Ludwig, Michael) (Entered: 07/01/1999)
130 REPLY MEMORANDUM OF LAW in further support of Motion to Intervene submitted by Attorneys George McCarter and Michael Rosman on behalf of Intervenors, dated 6/18/99. (Ludwig, Michael) (Entered: 07/01/1999)
131 LETTER enclosing copy of defendants' response letter to objectors Anthony and Nicholas Pantelides, together with supporting documentations and advising that both men would be accepted for inclusion among the Hispanic Offerees of the Settlement Agreement, dated 6/25/99 from Attorney Norma A. Cote to Judge Levy. (Ludwig, Michael) (Entered: 07/01/1999)
132 CORRECTIONS: MEMORANDUM by City of New York in opposition to motion to intervene (Jean (Entered: 07/02/1999)
134 DECLARATION IN FURTHER SUPPORT OF SETTLEMENT AGREEMENT by James Lonergan, Director of Plant Operations for the New york City board of Education, submitted 6/30/99 with Exhibit A. (Ludwig, Michael) (Entered: 07/20/1999)
133 LETTER dated 4.21.99 from Aris Pantelides to Magistrate Levy requesting that the Court "grant (him) permanent status along with the eligibile list, as well as retroactive seniority under the same guidelines which are being used for the offerees". (Hunter, Tara) (Entered: 07/20/1999)
135 LETTER dated 6/30/99 from Norma Cote to Magistrate Levy, enclosing additional declaration and exhibit in support of the proposed settlement agreement. (Jean (Entered: 07/21/1999)
136 ORDER the parties are requested to provide a response to Mr. Ashmyan, Copy to my Chambers. (signed by Magistrate Robert M. Levy , on 08.18.99) See letter dtd 08.03.99 from Ilya V. Ashmyan to M.J. Levy, re: Objection. Galeano, Sonia (Entered: 08/27/1999)
137 LETTER responding to court's 8/18/99 order regarding the objection and 8/3/99 letter of Ashmyan regarding parties' settlement agreement dated 9/1/99 from Aaron D. Schuham to Judge Levy (Ludwig, Michael) (Entered: 10/19/1999)
138 LETTER enclosing and discussing copy of letter from Jorge Trifun's purported objection to proposes settlement dated 9/1/99 from Norma A. Cote to Judge Levy (Ludwig, Michael) (Entered: 10/19/1999)
139 Calendar entry: Case called before Magistrate Levy for status conference. All parties present. Parties agree to settlement. Tape # 00/3(4070−5116) (Jean (Entered: 01/18/2000)
142 NOTICE of Attorney Appearance and Substitution of Counsel by United States: Meredith L. Burell to substitute for attorneys Luis lavin and Tana Lin. (Ludwig, Michael) (Entered: 02/10/2000)
140 MEMORANDUM and ORDER granting the joint motion of the United States and the New York City Board of Education, the City of New York, Commissioner William J. Diamond, and the New York City Department of Citywide Administrative Services for approval of a proposed Settlement Agreement (signed by Magistrate Judge Robert M. Levy, 2/9/00). (Ludwig, Michael) (Entered: 02/09/2000)
141 AMENDED MEMORANDUM and ORDER granting joint motion for approval of the proposed Settlement Agreement ( signed by Magistrate Robert M. Levy , on 2/9/00). (Ludwig, Michael) Modified on 04/11/2000 (Entered: 02/10/2000)
164 LETTER advising court that Defendants' Memorandum in Opposition to Motion to Intervene contained a factual error and attaching highlighted copy of corrections dated 2/10/00 from Norma A. Cote to Judge Levy (court filed amended order remedying this problem on 2/9/00). (Ludwig, Michael) (Entered: 04/11/2000)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 20 of 65

02/18/2000
02/24/2000
03/03/2000 03/06/2000 03/06/2000 03/06/2000
03/07/2000 03/08/2000 03/08/2000 03/09/2000 03/10/2000 03/16/2000 03/17/2000 03/17/2000 03/17/2000

165 MOTION by William J. Diamond, City of New York, NYC Board of Educati Motion hearing Motion file stamped: 2/22/00 and mailed/served: 2/18/00: to consider objections from persons whose interests might be affected by the proposed use of the results of Custodian Engineer (BOE) Exam #7004 in random order, rather than in rank order (attaching Wachter and Cline Declarations and Exs. A−C). (Ludwig, Michael) (Entered: 04/11/2000)
200 ORDER ( signed by Magistrate Robert M. Levy , on 2/24/00) to hold a hearing in order to consider the objections from persons whose interests might have been affected by the use of the results of Custodian Engineer (BOE) Exam # 7004 in random order, rather than in rantk order and by the proposed Random Order list. Hearing to be held on April 26, 2000 at 2:00 PM. (Ellern, Lisa) (Entered: 10/11/2000)
166 LETTER enclosing plaintiff's response to Defendants' Notice of Motion Regarding Custodian Engineer Examination #7004 and the accompanying Declaration of the US's expert Bernard Siskin, Ph.D., dated 3/3/00 from Aaron D. Schuham to Judge Levy. (Ludwig, Michael) (Entered: 04/11/2000)
143 LETTER dated 02.29.00 from Charles D. Harris to Clerk oif the Court, objecting to the Court's approval of the use of the Random Order List. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/07/2000)
148 LETTER dated 03.02.00 from Frank E. Valdez to RML, re: objection to the random list proposition. (Forwarded to RML) Galeano, Sonia (Entered: 03/15/2000)
167 RESPONSE by United States to Defendants' Notice of Motion Re: Custodain Engineer Examination #7004 indicating US does not oppose Defendants' proposed alternative use, but would have preferred either of two alternative solutions advanced by the US that would eliminate the adverse impact of the 7004 Exam rather than reduce it and attaching DECLARATION OF BERNARD R. SISKIN, Ph.D. (Ludwig, Michael) Modified on 04/11/2000 (Entered: 04/11/2000)
147 LETTER undtd from Philip J. Recine to RML: Objecting to Notice of Examination page 3, paragraph 3. (Forwarded to RML) Galeano, Sonia (Entered: 03/15/2000)
144 LETTER dtd. 3/6/2000 from Robert T. Connor to Clerk of Court stating his objection for the use of Random Order list in the Custodian Engineer Examination #7004. [Forwarded to Magistrate Levy on 3/9/2000 by interoffice mail.] (Mackey, Donna) (Entered: 03/09/2000)
145 NOTICE OF APPEAL by Proposed Pltffs' Intevenors John Brennan, James G. Ahearn, Kurt Brunkhorst Fee Paid $ 105.00 Receipt # 229520 [140−1] order, [141−1] order (McGee, Maryann) (Entered: 03/09/2000)
146 "OBJECTION TO 96−cv−374 by Jose Leal in favor of random order list for custodial engineer (BOE) exam #7004." (Document forwarded to M.J. Levy) Galeano, Sonia Modified on 03/14/2000 (Entered: 03/14/2000)
Certified copy of docket sheet sent to USCA. [145−1] appeal (Glenn, Marilyn) (Entered: 03/10/2000)
149 LETTER dated 03.14.00 from Luis Malave to M.J. Levy, in objection to the random list order. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/17/2000)
150 LETTER dated 03.15.00 from Rosemarie Graffeo to Clerk of the Court, objecting to the proposed random order list for Custodian Engineer Examination #7004. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/20/2000)
151 LETTER dated 03.15.00 from Joseph Celentano to Clerk of the Court, objecting to the proposed random order list for Cutodian Engineer Examination #7004. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/20/2000)
152 LETTER dated 03.15.00 from Robert J. Stewart, Custodian to Clerk of the Court, objecting to the use of a random list for exam #7004. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/20/2000)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 21 of 65

03/21/2000 03/22/2000 03/22/2000 03/22/2000 03/24/2000 03/24/2000 03/27/2000 03/28/2000 03/31/2000 03/31/2000 03/31/2000 04/07/2000
04/18/2000 04/18/2000 04/19/2000 04/19/2000

157 LETTER undtd from Gerardo Guiterrez, Jr. to Clerk of the Court, re: Objection to Random Order Listing as to Custodian Engineer Examination #7004. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/27/2000)
153 LETTER (undated) from Louis Antonio Lopez to Sir or Madam writing in "protest against the approval of the proposed alternative use of the Random Order list for Custodian Engineer (BOE) Examination #7004". (Hunter, Tara) (Entered: 03/24/2000)
154 OBJECTION, dtd 02.29.00 submitted by Angelo Lisa, Cutodian Engineer with re: to the U.S. proposal to appoint Cutodian Engineers to positions based on random selection and not rank order. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/24/2000)
156 LETTER dated 03.20.00 from Amin Quanungo to Clerk of the Court, re: Custodian Engineer Examination #7004 and his objection to having been placed in random order list no. 523, instead of rank order list no. 301. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/27/2000)
155 LETTER dated 03.21.00 from Anita Atkinson to M.J. Levy, objecting to the proposed alternate use of Custodian Engineer Exam #7004. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/24/2000)
159 LETTER undtd from Gary O'Neil to M.J. Levy, re: objection to random order. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 03/29/2000)
158 LETTER dated 3/22/00 from Bernard Smiley, (223−06 Francis Lewis Boulevard, Cambria Heights, N.Y. 11411), stating that he was eligible and qualified for custoidal engineer and therefore the proposed alternative Use or the Random Order list should be approved by the Court. (Asreen, Wendy) (Entered: 03/28/2000)
160 LETTER undtd from Arthur Polosino to Clerk of the Court, objecting to the random order of Exam 7004 for Custodian Engineers. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 04/03/2000)
161 LETTER dated 03.24.00 from Joseph P. Meehan to Clerk of the Court, objecting to random selection process to determine the eligible list re: Custodian Engineer Exam #7004. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 04/04/2000)
162 LETTER undtd from Darryl W. Mays to Clerk of the Court, objecting to the use of Proposed Alternative Use or the Random Order List. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 04/04/2000)
163 LETTER dated 03.20.00 from Theodore F. Ziegler to M.J. Levy, objecting to the use of an alternative list for Custodian Engineer (BOE) Examination #7004. (Forwarded to M.J. Levy) Galeano, Sonia (Entered: 04/04/2000)
168 Calendar entry: Status Conference before Judge Levy. Appearances: Meredith Burrell for Plaintiff and Norma A. Cote for Defendants. The following rulings were made: Pre−hearing status conference held. USA submits binder with alphabetical list of objectors, abstracts and copies of objections. Defendant will serve its rebuttal papers by 4/19/00. Hearing set for 4/26/00 at 2:00 PM before Judge Levy. (Ludwig, Michael) (Entered: 04/11/2000)
189 LETTER requesting extension to file defendant's reply dated 4/18/00 from Norma Cote to Judge Levy (Endorsement: Application granted. So ordered. Robert Levy, 4/19/00). (Ludwig, Michael) (Entered: 05/26/2000)
198 MEMORANDUM by United States in response to objections to deft's proposed alternative use of Custodian Engineer Examination #7004 (dated 4/18/00). (Ellern, Lisa) (Entered: 10/10/2000)
177 AFFIDAVIT by NYC Board of Education/DECLARATION OF JAMES LONERGAN re: proposed alternative use of Custodian Engineer Examination #7004, dated 4/19/00. (Ludwig, Michael) (Entered: 05/18/2000)
202 LETTER dated 4/18/00 from Norma A. Cote to Judge Levy requesting leave to file papers on April 21 instead of April 19, 2000. Order from Judge Robert M. Levy granting application and signed on 4/19/00. (Ellern, Lisa) (Entered: 10/11/2000)

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04/20/2000 04/22/2000 04/24/2000 04/24/2000 04/25/2000 04/25/2000 04/25/2000 04/26/2000
04/26/2000
04/26/2000
04/28/2000 04/28/2000 05/01/2000 05/02/2000 05/03/2000 05/16/2000

173 USCA Scheduling Order: [145−1] appeal Appeal record due by 5/5/00 . USCA Number: 00−6077 Appellant's brief due 5/12/00. Appellee's brief due 6/12/00. Argument set for 7/24/00. (McGee, Maryann) (Entered: 04/27/2000)
199 MEMORANDUM by Norma A. Cote, Assistant Corporation Counsel: "Defts' Memorandum of Law in support of the proposed alternative use of exam #7004 and in response to objections." Dated 4/22/00. (Ellern, Lisa) (Entered: 10/10/2000)
Certified and transmitted INDEX on appeal to U.S. Court of Appeals: [145−1] appeal. Revised Index sent to attorney. Acknowledgment requested. (McGee, Maryann) (Entered: 04/26/2000)
178 AFFIDAVIT by City of New York/FURTHER DECLARATION OF CAROL WACHTER Re: Proposed Alternative Use of Custodian Engineer Examination #7004, dated 4/24/00. (Ludwig, Michael) (Entered: 05/18/2000)
169 LETTER dated 5/13/98 from Aaron Schuham to Magistrate Levy regarding the United States' pending motion to try the adverse impact and recruitment claims. (Jean (Entered: 04/25/2000)
171 LETTER dated 9/21/98 from Tana Lin to Magistrate Levy concerning the United States' request for the production of documents. (Jean (Entered: 04/25/2000)
172 LETTER dated 10/1/98 from Norma Cote to Magistrate Levy responding to pltff objection to the expert report of Dr. Richard Reilly. (Jean (Entered: 04/25/2000)
176 137 TOTAL OBJECTION LETTERS and 22 Petitions submitted to the court by objectors to the Proposed Alternative use of Custodian Engineer Examination #7004 for consideration prior to the fairness hearing to be held before Judge Levy on 4/26/00. (Ludwig, Michael) (Entered: 05/18/2000)
179 Calendar entry: Civil Cause for Fairness Hearing held before Judge Levy on 4/26/00 at 2:00 PM. Appearances: Aaron Schumann and Meredith Burrell appeared for plaintiff and Norma A. Cote for defendant. 17 objectors to Exam 7004 Random List spoke at hearing. Court Reporter: Gene Rudolph (transcript to be filed). (Ludwig, Michael) (Entered: 05/18/2000)
180 Exhibit List: 1 − Objectors to Exam 7004 Random List submitted by US; 2 − 4/25/00 Letter from Alfred E. Lori; 3− List Placement of Minorities on Original and Proposed Lists handed up to court by Objector Peter Navetta; 4− submissions by objector Michael Reilly; 5−Application for Examination submitted by objector Steven Terwilliger; 6− additional petition submitted. (Ludwig, Michael) (Entered: 05/18/2000)
188 LETTER requesting a month continuance to obtain counsel and conduct discovery, obtain and expert and submit a report, dated 4/28/00 from Objector Micael Reilly to Judge Levy. (Ludwig, Michael) (Entered: 05/19/2000)
201 LETTER dated 4/28/00 from Michael Reilly to Judge Levy asking for a continuance. (Ellern, Lisa) (Entered: 10/11/2000)
197 LETTER dated 5/1/00 from Timothy A. Thompson to Judge Levy oppsoing statements made by Norma A. Cote during the 4/26/00 fairness hearing. (Ellern, Lisa) (Entered: 10/10/2000)
196 LETTER dated 5/2/00 from Katerine A. Baldwin to Judge Levy in response to Michael Reilly's April 28, 2000 letter and opposing Mr. Reilly's request for a continuance. (Ellern, Lisa) (Entered: 10/10/2000)
195 LETTER dated 5/3/00 from Norma A. Cote to Judge Levy opposing the application of Michael Reilly requesting a continuance and a discovery conference. (Ellern, Lisa) (Entered: 10/10/2000)
181 LETTER enclosing documents that were inadvertently not docketed (United States' Memorandum in support of entry of settlement agreement and in response to objections, dated 5/21/99, Attachment 2 thereto (Declaration of Aaron D. Schuham) including Exhibits A &B, Attachment 3 thereto (Declaration of Orley C. Ashenfelter) dated 5/16/00 from Aaron D. Schuham to the Court. (Ludwig, Michael) (Entered: 05/19/2000)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 23 of 65

05/16/2000 05/16/2000 05/16/2000 05/16/2000 05/16/2000 05/17/2000 05/19/2000 05/24/2000
05/25/2000 06/09/2000 08/30/2000 09/25/2000 10/11/2000

182 MEMORANDUM by United States in support of entry of settlement agreement and in response to objections submitted by Aaron D. Schuham, dated 5/21/99. (Ludwig, Michael) (Entered: 05/19/2000)
183 MEMORANDUM by United States in support of entry of settlement agreement and in response to objections − ATTACHMENT 2, dated 5/14/99. (Ludwig, Michael) (Entered: 05/19/2000)
184 DECLARATION by NYC Board of Education of AARON D. SCHUHAM, Exhibit A, (Plaintiff's 1st set of requests for admission), dated 5/8/98. (Ludwig, Michael) (Entered: 05/19/2000)
185 DECLARATION by United States of Aaron D. Schuham, Exhibit B (Defendants' response to plaintiff's 1st expert set of requests for admissions), dated 6/5/98. (Ludwig, Michael) (Entered: 05/19/2000)
186 MEMORANDUM by NYC Board of Education in support of entry of settlement agreement and in response to objections, ATTACHMENT 3 (Declaration of Orley C. Ashenfelter), dated 4/1/99. (Ludwig, Michael) (Entered: 05/19/2000)
187 ORDER denying Objector Michael Reilly's motion for a continuance to obtain counsel, retain an expert and conduct discovery ( signed by Magistrate Robert M. Levy , on 5/17/00) (Ludwig, Michael) (Entered: 05/19/2000)
192 LETTER dated 5/17/00 from Michael Reilly to Judge Robert Levy informing that he has no legal representation so is unable to intervene in the caes as a "party to the action." (Ellern, Lisa) (Entered: 09/08/2000)
Transmitted first supplemental INDEX on appeal: [145−1] appeal. INDEX consists of documents: 181−188. This supplemental INDEX is being done at the request of Aaram Schuham − U.S. Dept of Justice. Docket sheet forwarded via Federal Express (Tracking #s 809824547732; 809824547743; 809824547754) to Mr. Schuham, Norma Cote (Corporation Counsel) and Michael Rosman (Center for Individual Rights) (McGee, Maryann) Modified on 05/25/2000 (Entered: 05/24/2000)
190 TRANSCRIPT filed for [179−1] miscellaneous for FAIRNESS HEARING held before Judge Levy on 4/26/00. (Ludwig, Michael) (Entered: 05/26/2000)
191 Acknowledgment of 1st supplemental from USCA received re: [145−1] appeal. Acknowledgment signed by R.D. on 6/6/00. USCA# 00−6077. (Vasquez, Liz) (Entered: 06/09/2000)
193 LETTER dated 8/30/00 from Norma A. Cote to Judge Levy expressing the Board of Education's acute need for a ruling on the permissible configuation of the eligible list from Custodian EngineerExamination #7004. (Ellern, Lisa) (Entered: 10/05/2000)
194 MEMORANDUM and ORDER approving the proposal "Proposed Alternative Use" to reduce the adverse impact of Custodian Engineer (BOE) Examination #7004 ( signed by Magistrate Robert M. Levy , on 9/25/00) (Ellern, Lisa) (Entered: 10/10/2000)
205 Exhibit REPORT CONTAINING THE FOLLOWING DOCUMENTS: (1) "Adverse Impact (If Any) Analysis for Open Ceompetitive Engineer Exam # 8206 prepared b Dr. Philip Bobko, Nov. 12, 1997, &resume of both Philip Bobko and Richard Reilly (2) "Adverse Impact (If Any) Analysis for Promotional Engineer Exam #8609" prepared by Dr. Philip Bobko, Nov. 12, 1997 (3) "Adverse Impact (If Any) Analysis for School Custodian Exam #1074" prepared by Dr. Philip Bobko, Nov. 12, 1997 (4)"Adverse Impact (If Any) Analysis for School Custodian Exam #5040" prepared by Dr. Philip Bobko, Nov. 12, 1997 (4) "Criterion−Related Validation of Examination 1074 for School Custodians" Assessment Alternatives Inc. (5) "Criterion−Related Validation of Examination 5040 for School Custodians" Assessment Alternatives, Inc. (6) "Content Validation of Examination 8206, 5040, and 1074" Final Report to The City of NY, Prepared by Assessment Alternatives, Inc. (Ellern, Lisa) (Entered: 10/11/2000)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 24 of 65

08/17/2001 10/02/2001
10/05/2001 10/18/2001 11/09/2001 11/14/2001 11/16/2001 11/16/2001 11/16/2001 11/19/2001 11/19/2001
11/27/2001
11/27/2001
11/27/2001 11/27/2001 11/30/2001 11/30/2001

211 ORDER scheduling a telephone conference for September 11, 2001 at 11:00 AM ( signed by Magistrate Robert M. Levy , on 8/17/01) (Ellern, Lisa) (Entered: 09/06/2001)
212 MANDATE OF USCA (certified copy) Re: [145−1] appeal. On consideration whereof, it is now hereby ordered, adjudged and decreed that the judgment of said district court be and it hereby is vacated and remanded for further proceedings in accordance with the opinion of this court. Issued as Mandate: 9/27/01. Judge Notified. Ackn. mailed. USCA# 00−6077. (Vasquez, Liz) Modified on 10/03/2001 (Entered: 10/03/2001)
213 Calendar entry: Court Reporter/ESR 3088−5119 Tape # 101. Briefing schedule for answers or motions (Ellern, Lisa) (Entered: 10/12/2001)
214 First AMENDED Complaint in Intervention: amending [1−1] complaint. (fe) (Entered: 10/24/2001)
215 Second AMENDED intervenor's COMPLAINT : amending [214−1] intervenor complaint submitted by George McCarter &Michael Rosman, Co−Counsel for Pltffs./Intervenors. (fe) (Entered: 11/14/2001)
216 TRANSCRIPT filed for dates of 10/5/01 for telephone conference before M.J. Levy. Transcribed by Courthouse Transcription Service, Inc. (fe) (Entered: 11/14/2001)
219 LETTER dated 11/15/01 from Meredith Burrell, Counsel for Pltff. to Clerk of Court advising of change of mailing address. (fe) (Entered: 11/20/2001)
220 United States' MOTION to dismiss Intervenors' First Amended Complaint in Intervention . (fe) (Entered: 11/20/2001)
221 MEMORANDUM by United States in support of [220−1] motion to dismiss Intervenors' First Amended Complaint in Intervention (fe) (Entered: 11/20/2001)
217 LETTER dated 11/9/01 from Aaron Schuham and Norma Cote, Counsel for parties to M.J. Levy requesting a pre−motion conference. (fe) (Entered: 11/19/2001)
218 ORDER stating a telephone pre−motion conference is scheduled for 12/14/01 @ 3:30 p.m. Pltff.'s counsel is requested to initiate the conference call and confirm all necessary participants are aware of the conference. Any requests for adjournment must be made at least 48 hours before the scheduled conference. (Signed by M.J. Levy, on 11/16/01). (fe) (Entered: 11/19/2001)
222 Notice of MOTION by 115−13 120th Street, William J. Diamond, City of New York, NYC Board of Education for partial dismissal and/or summary judgment against the First Amended Complaint of the Intervenors . (fe) (Entered: 11/29/2001)
223 Rule 56.1 Statement(formerly Rule 3(g) by 115−13 120th Street, William J. Diamond, City of New York, NYC Board of Educati re: [222−1] motion for partial dismissal and/or summary judgment against the First Amended Complaint of the Intervenors. (fe) (Entered: 11/29/2001)
224 DECLARATION of Michael I. DeVito Re: [223−1] statement, [222−1] motion for partial dismissal and/or summary against the First Amended Complaint of the Intervenors. (fe) (Entered: 11/29/2001)
225 Defendants' MEMORANDUM of Law in Support of their Motion for Partial Dismissal and/or Summaru Judgment Against the First Amended Complaint in Intervention. (fe) (Entered: 11/29/2001)
226 Notice of United States and Municipal Defendants' Joint Motion to Strike [215−1] the second amended complaint in intervention . (fe) (Entered: 12/03/2001)
227 MEMORANDUM in Support of [226−1] United States and Municipal Defendants' Joint Motion to Strike [215−1] the Second Amended Complaint in Intervention. (fe) (Entered: 12/03/2001)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 25 of 65

12/14/2001
12/20/2001
01/02/2002 01/07/2002 01/07/2002 01/07/2002 01/07/2002 01/11/2002 01/15/2002 01/15/2002 01/18/2002
01/28/2002 01/29/2002 01/31/2002 02/06/2002

228 Calendar entry: Before M.J. Levy on 12/14/01 @ 3:30 p.m. Case called for telephone conference. Counsel for all parties present. Pltffs. &Defts. agree, without objection from intervenors, to approval of settlement agreement, with exception of paragraphs 13−16 will submit proposed order. Briefing schedule: 12/21: opposition to motion to dismiss; 1/11: reply; 1/4/02: to amend Complaint in Intervention or to intervene &opposition to motion to strike; 1/31/02: opposition to motion to amend &reply to motion to strike; 2/15/02: reply to motion to amend. Tape # 01/124: 0−3050. (fe) Modified on 12/20/2001 (Entered: 12/20/2001)
229 LETTER dated 12/7/01 from Michael Rosman responding to the letter dated 11/9/01 from Counsel for Pltff. and Defts. seeking a premotion conference; objecting to the promotion provisions in paragraph 13 of the Settlement Agreement; advising of the intention to cross−move to amend the initial complaint and/or intervene on behalf of new clients that were included in the 2nd Amended Complaint and requesting the Court's permission to make such a cross−motion during the conference on 12/14/01. (fe) (Entered: 12/20/2001)
290 ORDER endorsed on letter dated 12/30/02 from Norma Cote to Magistrate Levy. Application granted. Time to respond on objection due 1/31/03. (signed by Magistrate Robert M. Levy, on 1/24/03) (Black, Amanda) (Entered: 01/29/2003)
232 Notice of MOTION by John Brennan, James G. Ahearn, Kurt Brunkhorst to amend complaint in intervention and add Scott Spring, Dennis Mortenson, and E rnie Tricmi as plaintiffs−intervenors (fe) (Entered: 01/17/2002)
233 Notice of MOTION to intervene as additional plaintiffs−intervenors by Scott Spring, Dennis Mortenson, and Ernie Tricomi (fe) (Entered: 01/17/2002)
234 Plaintiffs−Intervenors' MEMORANDUM in Opposition to the [226−1] Joint Motion Strike and in Support of Their Motion to Amend the Complaint and/or Intervene. (fe) (Entered: 01/17/2002)
235 Statement of Michael E. Rosman in opposition to the [226−1] joint motion to strike [215−1] the second amended complaint in intervention. (fe) (Entered: 01/17/2002)
244 United States' Reply to Intervenors' Response to United States' [220−2] Motion to Dismiss Intervenors' First Amended Complaint in Intervention. (fe) (Entered: 03/01/2002)
230 Defendants' REPLY MEMORANDUM OF LAW in further support of their [222−1] motion for partial dismissal and/or summary judgment against the First Amended Complaint in Intervention. (fe) (Entered: 01/16/2002)
231 Supplemental Declaration of Michael I. DeVito in further support of Defts.' motion for partial summary judgment against the First Amended Complaint of the Intervenors (fe) (Entered: 01/16/2002)
236 ORDER endorsed on letter dated 12/19/01 from Meredith Burrell stating any objections to the proposed order submitted by the United States shall be filed by January 31, 2002. Movant's Counsel is directed to serve a copy of this order on all parties upon receipt. (Signed by M.J. Levy, on 1/16/02). (fe) Modified on 01/18/2002 (Entered: 01/18/2002)
237 TRANSCRIPT filed for [228−1] miscellaneous for dates of 12/14/01 for Civil Cause for Conference before M.J. Levy. (fe) (Entered: 01/28/2002)
238 ORDER endorsed on letter dated 1/22/02 from Norma Cote granting the parties' application. Oral argument will be held on all pending motions on 2/28/02 @ 12:30 p.m. (Signed by M.J. Levy, on 1/25/02). (fe) (Entered: 01/29/2002)
239 United States' Reply to MEMORANDUM in Support of United States' and Municipal Defendants Joint Motion to Strike and United States' Response to Intervenors' Motion to Amend First Amended Complaint in Intervention and/or Motion to Intervene. (fe) (Entered: 02/04/2002)
240 Defendants' MEMORANDUM of Law in Response to the Motions of Intervenors Brennan et al. to Amend and/or of Spring et al. to Intervene, and in Further Opposition to the Attempt to Add Intervenors Unilaterally. (fe) (Entered: 02/06/2002)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 26 of 65

02/06/2002 02/15/2002
02/28/2002
02/28/2002
03/04/2002
03/12/2002 03/18/2002 03/20/2002
03/21/2002 03/21/2002 03/28/2002 03/28/2002 04/08/2002 04/10/2002 04/10/2002 04/10/2002 04/15/2002

241 Declaration of Norma Cote on the various motions concerning the addition of 3 new intervenors in this case. (fe) (Entered: 02/06/2002)
242 Plaintiffs−Intervenors' Reply MEMORANDUM by John Brennan, James G. Ahearn in support of their [232−1] motion to amend complaint in intervention and add Scott Spring, Dennis Mortenson, and Ernie Tricmi as plaintiffs−intervenors. (fe) (Entered: 02/22/2002)
243 ORDER endorsed on letter dated 2/21/02 from all Counsel stating the application is granted with leave to seek reconsideration for good cause, no later than 2/28/02; the opposition shall be filed no later than 3/18/02 and the reply by 4/1/02. (Signed by M.J. Levy, on 2/21/02). (fe) (Entered: 02/28/2002)
246 Calendar entry: Before M.J. Levy on 2/28/02 @ 12:30 p.m. Case called for status conference. Counsel for all parties present. Court Reporter: Fred Guerino. Oral argument held; parties to supplement brief according to schedule as explained on record; settlement agreement approved, with exception of paragraphs 13−16. (fe) (Entered: 03/07/2002)
245 ORDER stating with the consent of the parties and intervenors, it is Ordered that with the exception of paragraphs 13, 14, 15 and 16, all provisions of the Settlement Agreement filed with the Court on 2/11/99 are approved. (Signed by M.J. Levy, on 2/28/02). (fe) (Entered: 03/04/2002)
248 Plaintiffs−Intervenors' Objections to Discovery Rulings of M.J. Levy Pursuant to 28 U.S.C. 636 (b) and FRCP 72 (a). (fe) (Entered: 03/20/2002)
247 LETTER dated 2/28/02 from Norma Cote to M.J. Levy enclosing the citation list of cases mentioned during oral argument on 2/28/02. (fe) (Entered: 03/18/2002)
249 ORDER endorsed on letter dated 3/15/02 from Aaron Schuham stating the application for an extension is granted. The United States' and Municipal Defendants' time to file responsive papers to the Motion for Preliminary Injunction is extended 3 weeks, to 4/8/02, in both 96−cv−0374 &02−cv−256. The remaining deadlines are extended to 5/17/02. (Signed by M.J. Levy, on 3/15/02). (fe) (Entered: 03/21/2002)
250 LETTER dated 3/18/02 from Norma Cote to M.J. Levy requesting an additional 2 week extension of time to respond to the preliminay injunction motion and enclosing a proposed Revised Scheduling Order. (fe) (Entered: 03/21/2002)
251 LETTER dated 3/18/02 from Michael Rosman to M.J. Levy responding to Aaron Schuham's letter of 3/15/02 &Norma Cote's letter of 3/18/02. (fe) (Entered: 03/21/2002)
252 United States' RESPONSE in opposition to [248−1] Intervenors' objections to discovery rulings of M.J. Levy pursuant to 28 USC 636(b) &FRCP 72(a). (fe) (Entered: 04/08/2002)
253 Defendants' RESPONSE in opposition to [248−1] Intervenors' objections to M.J. Levy's order staying discovery. (fe) (Entered: 04/08/2002)
254 MEMORANDUM by United States/Federal Defts. in partial opposition to Intervenors'/Pltffs. Motions for preliminary injunction. (fe) Modified on 04/09/2002 (Entered: 04/09/2002)
255 NOTICE of withdrawal of Counsel by United States dated 4/8/02 and stating Marybeth Martin, Aaron Schuham, Meredith Burrell will no longer represent the United Staes. (fe) (Entered: 04/10/2002)
256 NOTICE of Appearances of Counsel for United States by John M. Gadzichowski, Charles Leggott, Jodi Danis. (fe) (Entered: 04/10/2002)
257 CERTIFICATE OF SERVICE of Pltff. United States'/Federal Defendants' Opposition to Intervenors'/Pltffs.' Motion for Preliminary Injunction. (fe) (Entered: 04/16/2002)
258 LETTER dated 4/11/02 from George McCarter to M.J. Levy requesting an adjournment to 4/29/02 of the date for filing reply papers relating to the pending

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 27 of 65

04/23/2002
04/25/2002
05/22/2002 05/22/2002 05/22/2002 06/14/2002 06/17/2002
06/17/2002 06/17/2002 06/26/2002 07/08/2002 07/26/2002 08/13/2002 08/27/2002
09/30/2002

applications for preliminary injunctions in both matters. (fe) (Entered: 04/17/2002)
259 ORDER endorsed on letter dated 4/17/02 from Norma Cote, stating the application requesting the opportunity to submit supplementary papers to the position taken by DOJ on the preliminary injunction is granted. Papers to be served by 4/24/02. (Signed by M.J. Levy, on 4/22/02). (fe) (Entered: 04/23/2002)
260 ORDER endorsed on letter dated 4/19/02 from Michael Rosman, stating the application is granted. Intervenors/Pltffs. time to submit reply papers is extended to a date 14 days after service of opposition papers. (Signed by M.J. Levy, on 4/23/02). (fe) (Entered: 04/25/2002)
261 Dfts' Notice of Motion for approval of paragraph 13 of the settlement agreement . Motion hearing not set . (Latka (Entered: 05/29/2002)
262 Defendants' MEMORANDUM of Law in support of [261−1] motion for approval of paragraph 13 of the settlement agreement. (Latka (Entered: 05/29/2002)
263 LETTER dated 5/21/02 from Norma Cote to Magistrate Levy enclosing defendants' papers on the intervenors' standing. (Black, Amanda) (Entered: 06/12/2002)
265 LETTER dated 6/13/02 from Jodi Danis to Clerk of Court enclosing the United States' response to municipal defendants' motion of the settlement agreement. (Black, Amanda) (Entered: 06/26/2002)
266 INTERVENORS' MEMORANDUM OF LAW IN OPPOSITION TO DFTS' MOTION TO APPROVE PARAGRAPH 13 OF THE AGREEMENT AND REGARDING THEIR INTERESTS AND STANDING by John Brennan, James G. Ahearn, Kurt Brunkhorst, Scott Spring, Ernest Tricomi, and Dennis Mortensen in opposition to [261−1] motion for approval of paragraph 13 of the settlement agreement. (Latka (Entered: 06/26/2002)
267 STATEMENT OF JOHN CARACCIOLA Re: [261−1] motion for approval of paragraph 13 of the settlement agreement. (Latka (Entered: 06/26/2002)
268 STATEMENT OF ALFREDO LORI Re: [261−1] motion for approval of paragraph 13 of the settlement agreement. (Latka (Entered: 06/26/2002)
264 ORDER, Granting an extension to June 28, 2002. See letter dated June 19, 2002 to Hon. Robert M. Levy from Norma A. Cote. (signed by Magistrate Robert M. Levy, on 06/21/02) (Lee, Stephen) (Entered: 06/26/2002)
269 REPLY MEMORANDUM OF LAW by NYC Board of Educati in further [261−1] motion for approval of paragraph 13 of the settlement agreement. (Black, Amanda) (Entered: 07/08/2002)
270 MEMORANDUM and ORDER regarding the motion for a preliminary injuction is denied. (signed by Magistrate Robert M. Levy, on 7/24/02) (Black, Amanda) (Entered: 07/26/2002)
AFFIDAVIT of Eric Schauer in support of plaintiffs' objections to the Report of the Magistrate Judge in this case. Attached exhibits 1−4 (original docketed under 02−cv−256 document # 57). (Dobkin, David) (Entered: 08/13/2002)
271 RESPONSE by the United States to Plaintiffs'/Intervenors' objections to the report &recommendation of Magistrate Judge Levy denying Pltffs'/Intervenors' motion for a preliminary injunction. [w/attached exhibits 1−4]. (Barrett, Charryse) (Entered: 08/27/2002)
272 MEMORANDUM and ORDER: the motion of Scott Spring, Ernest Tricomi, and Dennis Mortensen to intervene is granted. The Court declines to approve paragraph 13 of the Agreement at this time. The motions of the Municipal Defendants and the United States to dismiss or strike are granted: this Court will consider all of the Intervenors' arguments in light of the guiding principles established by the Second Circuit for evaluating settlement agreements. All parties are directed to appear before me for a conference on Wednesday 10/30/02 at 3:00 p.m., at which any outstanding issues will be addressed and a discovery schedule will be established. (signed by Magistrate Robert M. Levy, on 9/30/02) (see Memorandum and Order

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 28 of 65

10/02/2002
10/16/2002 10/30/2002 10/30/2002 11/01/2002 11/01/2002 11/06/2002 11/19/2002 11/20/2002 11/25/2002 12/04/2002 12/10/2002 12/10/2002 12/18/2002 01/03/2003 01/06/2003 01/07/2003 01/28/2003 01/29/2003

for further details). (Black, Amanda) (Entered: 09/30/2002)
274 ORDER endorsed on letter dated 10/23/02 from Emily Martin to Magistrate Levy. Proposed intervenors may participate conditionally in the 10/30/02 conference. (signed by Magistrate Robert M. Levy, on 10/29/02) (Black, Amanda) (Entered: 10/30/2002)
273 Intervenors' objections to rulings of Mag. Levy pursuant to 28 USC 636(b) and Fed. R. Civ. P. 72 of by John Brennan, James G. Ahearn, Kurt Brunkhorst. Attached exhibits A−C. (Dobkin, David) (Entered: 10/17/2002)
275 Plaintiff United States' Response to Intervenors' Objections to Rulings of Mag. Levy. (Dobkin, David) (Entered: 11/04/2002)
283 Calendar entry: Status Conference and oral argument held before Magistrate Levy on 10/30/02. Decision reserved. Ruling made on record. Tape # 76 (3426−end) and # 77 (0−852). (Black, Amanda) (Entered: 12/11/2002)
276 MOTION by United States to intervene by Janet A. Caldero , Motion hearing [276−1] motion (Black, Amanda) (Entered: 11/08/2002)
277 MEMORANDUM OF LAW in Support of Motion to Intervene by Janet A. Caldero in support of [276−1] motion to intervene by Janet A. Caldero, et al. (Black, Amanda) (Entered: 11/08/2002)
286 DEFENDANT'S Response to the Intervenors' Objections to Magistrate Levy's Memorandum and Order Dismissing the Intervenors' Legal Claim for an Injunction. (Black, Amanda) (Entered: 12/20/2002)
281 LETTER dated 11/14/02 from Emily Martin to Magistrate Levy attaching a substitute Proposed Complaint in Intervention. (Proposed Complaint Intervention attached). (Black, Amanda) (Entered: 12/04/2002)
278 LETTER dated 11/15/02 from Michael Rosman to Mag. Levy, stating that the parties have conferred and selelcted three weeks for fact discovery to be taken. (Dobkin, David) (Entered: 11/20/2002)
279 TRANSCRIPT of civil cause for status conference before Magistrate Levy filed for dates of 10/30/02. (Black, Amanda) (Entered: 11/25/2002)
280 LETTER dated 11/14/02 from Emily Martin to Magistrate Levy consenting to this case being referred to Magistrate Levy. (Black, Amanda) (Entered: 12/04/2002)
282 NOTICE of attorney appearance for United States by Keisha Dawn Bell. (see case 02−cv−256 for original) (Dobkin, David) (Entered: 12/10/2002)
284 LETTER dated 12/6/02 from John Gadzichowski to Clerk of Court informing that 7885 is registered as the four digit number that will be used on all documents. (Black, Amanda) (Entered: 12/13/2002)
285 LETTER dated 12/6/02 from Jodi Danis to Clerk of the Court, advising how she would like to register pursuant to Local Rule 11.1(b). (Dobkin, David) (Entered: 12/18/2002)
287 LETTER dated 12/31/02 from Michael E. Rosman to Magistrate Levy responding to Norma Cote's letter. (Black, Amanda) (Entered: 01/08/2003)
289 LETTER dated 1/3/03 from Michael E. Rosman to RML re: dispute between the Brennan Intervenors and defts. (Glenn, Marilyn) (Entered: 01/23/2003)
288 MOTION to Amend Proposed Intervenors' motion to Intervene by Janet A. Caldero to amend [288−1] motion , (Black, Amanda) (Entered: 01/10/2003)
292 MOTION by United States for protective order [292−1] motion (Black, Amanda) (Entered: 01/31/2003)
291 ORDER: Scheduling a conference for 3/6/03 at 2:00 p.m. has been changed to 3:00 p.m. before Magistrate Levy, in courtroom 619. (signed by Magistrate Robert M. Levy, on 1/24/03) (Black, Amanda) (Entered: 01/29/2003)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 29 of 65

02/03/2003 02/03/2003
02/04/2003 02/05/2003 02/05/2003 02/05/2003 02/05/2003 02/05/2003
02/10/2003 02/12/2003 02/12/2003

293 ORDER: This Court will initiate a telephone conference in the above−captioned case on 2/3/03 at 10:00 a.m., before Magistrate Levy. All parties must be available at this time. (signed by Magistrate Robert M. Levy, on 1/31/03) (Black, Amanda) (Entered: 02/03/2003)
294 Calendar entry: Conference by telephone held before Magistrate Levy on 2/3/03. (1) Parties' stipulation to take 65 depositions approved. Discovery schedule modified as follows: 3/3/03 status report; 4/4/03 completion of fact discovery; Brennan Intervenors' expert disclosure and reports; 5/2/03 all other parties' expert disclosure and reports; 6/6/03 rebuttal expert reports; 7/11/03 completion of expert discovery. (2) All conference participants stipulate that the scope of intervention of the proposed Caldero Intervenors will be limited to the recruitment and testing claims alleged in plaintiff's complaint. Parties further agree that intervention is appropriate, but Brennan and Caldero Intervenors disagree whether intervention should be permissive or as of right. All conference participants shall advise the court by 2/7/03: (a) whether they agree to permissive intervention, without prejudice to the Caldero Intervenors' right to renew their motion to intervene as of right; and (b) if not, whether they seek a decision from Judge Block or consent to a decision of this issue by a magistrate judge. (3) All outstanding discovery disputes resolved as follows: (a) modifying a prior order, only affirmative answers to questions about criminal convictions will be sealed; (b) defendants shall respond to the Brennan Intervenors' Interrogatory No. 3, as set forth on th record; (c) the Brennan Intervenors' motion to compel documents responsive to Document Request No. 2 is denied; order to follow. Tape # 03/12: 0−3785. Next conference scheduled for 3/6/03 at 3:00 p.m. by telephone. (Black, Amanda) (Entered: 02/05/2003)
301 JOINT MOTION For Entry of Stipulation Waiving Deposition Limits , Motion hearing [301−1] motion (Black, Amanda) (Entered: 02/12/2003)
295 LETTER dated 12/31/02 from Michael E. Rosman to Magistrate Levy responding to Norma Cote's letter. (Black, Amanda) (Entered: 02/05/2003)
296 LETTER dated 1/23/03 from Michael E. Rosman to Magistrate Levy writing about a discovery dispute between the Brennan Intervenors and defendants. (Black, Amanda) (Entered: 02/05/2003)
297 LETTER dated 1/23/03 from Michael E. Rosman to Magistrate Levy seeking a change in the discovery schedule. (Black, Amanda) (Entered: 02/05/2003)
298 JOINT MOTION for Entry of Stipulation Waiving Deposition Limits Motion hearing (Black, Amanda) (Entered: 02/07/2003)
299 STIPULATION and ORDER: Plaintiff United States, Defendants, and Intervenor−Objectors, through their undersigned counsel, hereby stipulate and agree that the deposition limit of ten depositions per party, pursuant to Fed. R. Civ. P. 30(a)(2), shall not apply in this case. The parties have agreed that the total number of depositions of fact witnesses to be taken by all of the present parties, combined, shall not exceed, unless furhtekr leave of Court to exceed this number is sought for good cause and is obtained. IT IS ORDERED (signed by Magistrate Robert M. Levy) (Black, Amanda) (Entered: 02/07/2003)
303 LETTER dated 2/7/03 from Emily Martin to Mag. Levy re: enclosure proposed joint motion for entry o stipulation and order and Stip and Order.(unsigned by Mag. Levy). w/enclosure. (Dobkin, David) (Entered: 03/03/2003)
300 LETTER dated 1/23/03 from Michael E. Rosman to Magistrate Levy requesting an adjustment in the current discovery deadlines. (Black, Amanda) (Entered: 02/12/2003)
302 STIPULATION and ORDERi: Plaintiff United States, Defendants, and Intervenor−Objectors, through their undersigned counsel, hereby stipulate and agree that the deposition limit of ten depositions per party, pursuant to Fed. R. Civ. P. 30(1)(2), shall not apply in this case. The parties have agreed that the total number of depositions of fact witnesses to be taken by all of the present parties, combined, shall not exceed, unless further leave of Court to exceed this number is sought for good cause and is obtained. (signed by Magistrate Robert M. Levy, on 2/11/03) (Black, Amanda) (Entered: 02/12/2003)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 30 of 65

02/13/2003 03/07/2003 03/07/2003
03/11/2003 03/11/2003 03/13/2003 03/14/2003 03/14/2003 03/19/2003 03/21/2003 03/24/2003 04/01/2003 04/01/2003 04/01/2003 04/01/2003 04/01/2003 04/04/2003 04/16/2003

335 STIPULATION AND ORDER granting motion for permissive intervention in these actions. Signed by Judge Frederic Block on 6/17/2003. (Dobkin, David) (Entered: 06/25/2003)
304 TRANSCRIPT of Civil Cause for Status Conference before Magistrate Levy filed for dates of 2/3/03. (Black, Amanda) (Entered: 03/07/2003)
305 Calendar entry: Conference held before Magistrate Levy on 3/7/03. Fact discovery deadline extended to 6/4/03 because of delays in document production. Expert discovery deadlines unchanged, as only proposed Caldero defendants' expert reports are likely to be affected by document production delays, as they address the recruitment claims. Any further extensions must be supported by a showing of good cause. By 3/14/03, the parties shall submit a joint schedule for the completion of the remaining depositions of offerees and objectors, as discussed at this conference. All 30(b)(6) depositions shall be completed by 5/23/03. Discovery deadline 6/4/03 (Fact); 7/11/03 (Expert). Next conference scheduled for 7/18/03 at 3:00 by telephone. (Black, Amanda) (Entered: 03/14/2003)
308 ORDER: To admit Hans Frank Bader as Counsel Pro Hac Vice for Plaintiffs is Granted. (Signed by Magistrate Robert M. Levy on 2/25/03). (Black, Amanda) (Entered: 03/17/2003)
309 DECLARATION of Hans Frank Bader in support of Motion to Admit him as counsel Pro Hac Vice. (Black, Amanda) (Entered: 03/17/2003)
CASE reassigned to Judge Frederic Block. Parties notified. (Villanueva, William) (Entered: 03/18/2003)
306 LETTER dated 3/3/03 from Michael E. Rosman to Magistrate Levy writing on the status of the case. (Black, Amanda) (Entered: 03/14/2003)
307 LETTER dated 2/7/03 from Emily J. Martin to Magistrate Levy advising that counsel have agreed to submit motion and proposed stipulation and order to Judge Block for his approval. (Black, Amanda) (Entered: 03/14/2003)
310 LETTER dated 3/14/03 from Jodi Danis to Mag. Levy, sending to the Court an intended schedule for the remaining depositions to be taken during the fact discovery phase of this case. (Dobkin, David) (Entered: 03/19/2003)
311 LETTER dated 3/3/03 from Michael E. Rosman to Magistrate Levy writing to provide a status report. (Black, Amanda) (Entered: 03/21/2003)
312 LETTER dated 3/14/03 from Jodi Danis to Mag. Levy, regarding the proposed schedule for depositions in the above case. (Dobkin, David) (Entered: 03/24/2003)
313 MAIL RETURNED notification of case reassignment returned on 3/31/03. Sent to Tana Lin, "return to sender". (Dobkin, David) (Entered: 04/01/2003)
314 MAIL RETURNED notification of case reassignment returned on 3/31/03. Sent to Luis Lavin, "return to sender". (Dobkin, David) (Entered: 04/01/2003)
315 MAIL RETURNED notification of case reassignment returned on 3/31/03. Sent to Brenda Berlin, "return to sender". (Dobkin, David) (Entered: 04/01/2003)
316 MAIL RETURNED notification of case reassignment returned on 3/31/03. Sent to John Gadzichowski, "return to sender". (Dobkin, David) (Entered: 04/01/2003)
317 MAIL RETURNED notification of case reassignment returned on 3/31/03. Sent to Deval Patrick, "return to sender". (Dobkin, David) (Entered: 04/01/2003)
318 ORDER granting application for extension of time to fact discovery. ( signed by Magistrate Robert M. Levy , on 4/12/03) (endorsed on letter dated 4/2/03 from Emily Martin to Mag. Levy). (Dobkin, David) (Entered: 04/15/2003)
319 LETTER dated 4/14/03 from Jodi Danis to Judge Block and Mag. Levyi, written to seek resolution of a discovery dispute that arose during two depositions taken in the above case last week and which is anticipated to continue at additional future depositions. (Dobkin, David) (Entered: 04/16/2003)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 31 of 65

04/24/2003 05/01/2003 05/07/2003
05/07/2003
05/13/2003 05/16/2003 05/16/2003 05/16/2003 05/22/2003 05/27/2003 06/02/2003 06/17/2003 06/18/2003

320 ORDER of referral to Mag. Levy for all pretrial purposes. ( signed by Judge Frederic Block , on 4/23/03) (Dobkin, David) (Entered: 04/24/2003)
321 ORDER granting an extension of time until 5/16/03 to respond to the Intervenor−Objectors' expert reports filed on 4/4/03. ( signed by Magistrate Robert M. Levy , on 4/29/03)(endorsed on letter dated 4/22/03 from Charles Leggott to Judge Block). (Dobkin, David) (Entered: 05/01/2003)
322 Minute Entry for proceedings held before Robert M. Levy : Telephone Conference held on 5/7/2003. Mr. Rosman will produce documents for today's deposition, although 30 days have not expired, without waiving right to assert right to additional time for documents for tomorrow's deposition. Mr. Rosman will review the 25 page personnel file for tomorrow's deposition tonight and discuss it with his client tomorrow prior to the deposition. If he requires additional time to determine whether to produce the file for tomorrow's deposition, or if plaintiff's counsel requires additional time to review the documents before taking the deposition, the parties are directed to contact the court for guidance. (Dobkin, David) (Entered: 05/12/2003)
323 Minute Entry for proceedings held before Robert M. Levy :Telephone Conference held on 5/7/2003. For the reasons explained in detail on the record, and consistent with the principles enunciated by the Second Circuit in In re Grand Jury Subpoenas dated 3/19/02 and 8/2/02, 318 F. 3d 379, 385(2d Cir.2003), the motion of the United States, dated 4/14/03 is granted as follows:1) Absent a showing that a "'a real, rather than speculative, concern' that counsel's thought process 'in relation to pending... litigation' will be exposed" through disclosure of which of a small number of documents, already in the possession of all parties, a witness has reviewed in preparation for his clients not to answer the following question at deposition: "What documents that were not generated by your counsel have you reviewed in preparation for your deposition today?" (Tape #39:2395−4788.) (Dobkin, David) (Entered: 05/12/2003)
324 Letter dated 5/5/03 from Charles Leggott to Mag. Levy, written in response to Mr. Rosman's letter of 4/24/03 concerning the discovery dispute that arose during the depositions of James Ahearn and John Brennan on 4/9 and 4/10, respectively. w/attachments. (Dobkin, David) (Entered: 05/13/2003)
325 NOTICE of motion for a protective order by United States of America. (Dobkin, David) (Entered: 05/22/2003)
326 MOTION for Protective Order by United States of America. (Dobkin, David) (Entered: 05/22/2003)
327 MEMORANDUM of law in Support re 326 MOTION for Protective Order by United States of America. Attached exhibits 1−10 (Dobkin, David) (Entered: 05/22/2003)
374 Letter dated 5/21/2003 from Michael Rosman to Mag. Levy, written in response to the United States's motion for a protective order. w/enclosures. (Dobkin, David) (Entered: 11/25/2003)
328 ORDER dated 5/23/2003, stating that leavee to file the 5/16/2003 motion for protective order and memo in support is hereby granted. A hearing on the motion is scheduled for 6/19/03 at 2:00p.m. Signed by Judge Robert M. Levy on 5/23/2003. (endorsed on letter dated 5/22/2003 from Jodi Janis to Mag. Levy). (Dobkin, David) (Entered: 05/27/2003)
329 ORDER granting application. The human resources expert's report will be submitted one week after deft's production of relevant documents. Signed by Judge Robert M. Levy on 5/29/2003. (endorsed on letter dated 5/27/03 from Emily Martin to Mag. Levy).(Dobkin, David) (Entered: 06/02/2003)
330 TRANSCRIPT of Civil Cause for Status Conference before Magistrate Robert M. Levy on 5/7/03. (Black, Amanda) (Entered: 06/18/2003)
332 MEMORANDUM of law in Opposition to U.S.s' re 326 MOTION for Protective Order by James G. Ahearn, John Brennan. (Dobkin, David) (Entered: 06/23/2003)

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 32 of 65

06/19/2003
06/19/2003 06/20/2003
06/27/2003 06/27/2003 07/25/2003 07/29/2003 07/30/2003 07/31/2003 08/04/2003 08/05/2003 08/07/2003 08/13/2003

331 NOTICE of Appearance by Derek J.T. Adler on behalf of Janet A. Caldero, Celia I. Calderon , Martha Chellemi , Andrew Clement , Kristen D'Alessio , Laura Daniele , Charmaine Didonato , Dawn L. Ellis , Marcia P. Jarrett , Mary Kachadourian , Kathleen Luebkert , Marianne Manousakis , Adele A. McGreal , Sandra D. Morton , Maureen Quinn , Harry Santana , Carl D. Smith , Kim Tatum , Frank Valdez , Irene Wolkiewicz, Proposed Plaintiff−Intervenors. (Black, Amanda). (Entered: 06/23/2003)
333 Letter dated 6/17/2003 from Michael Rosman to Mag. Levy, asking the Court to permit the Brennan Intervenors to submit the enclosed memo of law in response to the United States's motion for a protective order. (Dobkin, David) (Entered: 06/24/2003)
334 Minute Entry for proceedings held before Robert M. Levy : Telephone Conference held on 6/20/2003. Discovery deadline 9/30/03(fact and expert). Next conference 7/18/03 at 3:00p.m. Rulings made on the record. All outstanding motions resolved. Written ruling will follow setting forth decision made concerning plaintiff and deft's assertion of joint defense privilege. Deft will respond to proposed Calvero intervenors' document requests by 6/27/03; proposed Caldero intervenors' expert report shall be served 7/18/03.Brennan intervenors may seek to re−serve 30(b)(6) deposition requests on plaintiff upon a showing of good cause, in the event contention interrogatory responses do not satisfactorily provided the information sought in their previous 30(b)(6) requests, the subject of plaintiff's recent request for a protective order. Contention interrogatories shall be served by 7/1/03. Status report to chambers 9/12/03. (Tape #03/50(0−2388).) (Dobkin, David) (Entered: 06/24/2003)
336 Letter dated 5/22/03 from Charles E. Leggott to USMJ Robert M. Levy re: the request for an extension of the fact discovery deadline to 7/11/03. They request that if an extension is granted it be until 6/27/03. (Noh, Kenneth) (Entered: 06/27/2003)
337 (page 1) Letter dated 5/21/03 from Emily J. Martin to USMJ Robert M. Levy requesting an exteion of the deadline of factual discovery to 7/11/03. (Noh, Kenneth) (Entered: 06/27/2003)
338 MEMORANDUM AND OPINION, Signed by Judge Robert M. Levy on 7/24/03. (Black, Amanda) (Entered: 07/25/2003)
339 Letter dated 7/28/2003 from Michael Rosman to Mag. Levy, stating that the Brennan Intervenors will serve their response to the letter of Norma Cote dated 7/22/03, seeking a protective order for defts, on or before 7/31/03, and will respond in 5 or fewer pages. (Dobkin, David) (Entered: 07/30/2003)
340 TRANSCRIPT of telephone Proceedings held on 6/20/2003 before Judge Levy. Court Reporter: Elizabeth Barron. (Dobkin, David) (Entered: 07/31/2003)
341 Letter from Michael Rosman to Mag. Levy, stating that the Brennan Intervenors will serve their response to the letter of Norma Cote dated 7/22/03, seeking a protective order for defts, on or before 7/31/03, and will respond in five or fewewr pages. (Dobkin, David) (Entered: 08/04/2003)
342 ORDER, GRANTING the application for a Status COnferenc eto be scheduled for 11/13/03 at 12:30 p.m. (see letter dtd 07/30/03 by Jodi Danis) . Signed by Judge Robert M. Levy on 07/30/03. (Sica, Michele) (Entered: 08/04/2003)
343 Letter dated 7/29/2003 from Michael Rosman to Mag. Levy, stating that defts' request for a protective order should be denied. Attached exhibits A and B. (Dobkin, David) (Entered: 08/05/2003)
344 The Brennan Intervenors' Rule 72 Objection to the 7/24/03 order of Mag. Levy by James G. Ahearn, John Brennan re 338 Memorandum &Opinion. Attached exhibits 1−8. (Dobkin, David) (Entered: 08/11/2003)
345 Letter dated 7/22/03 from Norma Cote to Judge Levy, requesting a protective order with respect to the scope of the Objector−Intervenors' intended deposition of the defts under Rule 30(b)(6). (Dobkin, David) (Entered: 08/13/2003)

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08/13/2003 08/21/2003 08/21/2003 08/21/2003 08/26/2003 08/27/2003 09/02/2003 09/03/2003 09/09/2003 09/17/2003
09/18/2003

346 ORDER setting telephone conference for 9/15/2003 at 1:30p.m. before Mag. Levy . Signed by Judge Robert M. Levy on 8/13/2003. (Dobkin, David) (Entered: 08/13/2003)
347 Letter dated 8/20/2003 from AUSA Jodi Danis to Clerk of the Court, re: enclosure of motion opposition papers in the above case. w/enclosures. (Dobkin, David) (Entered: 08/26/2003)
348 MOTION for Leave to File response to intervenor−objectors' rule 72 objections to the July 24,2003 order of Mag. Levy by United States of America. (Dobkin, David) (Entered: 08/26/2003)
349 United States' Response to Intervenor−Objectors' Rule 72 Objections to the 7/24/2003 order of Mag. Levy. Attached exhibits A and B. (Dobkin, David) (Entered: 08/26/2003)
350 Letter dated 8/25/2003 from Norma Cote to Judge Block, requesting a one−day extension of time to 8/256/03 to serve defts' response to the Rule 72 Objections to Mag. Levy's 7/24/2003 memo and order. (Dobkin, David) (Entered: 08/26/2003)
351 ORDER granting application. Conference adjourned to 9/25/2003 before Mag. Levy. Signed by Judge Robert M. Levy on 8/25/2003. (Dobkin, David) (endorsed on letter dated 8/21/2003 from Norma Cote to Mag. Levy). (Entered: 08/27/2003)
353 Deft's Response to the objector−intervenors' objections to the 7/24/2003 discovery ruling of Mag. Levy by Department of Citywide Administrative Services, William J. Diamond, New York City Board of Education (Dobkin, David) (Entered: 09/03/2003)
352 ORDER granting application. Telephone conference will be held on 9/15/2003 at 1:30p.m.. Signed by Judge Robert M. Levy on 9/3/2003. (endorsed on letter dated 8/28/03 from Norma Cote to Mag. Levy)(Dobkin, David) (Entered: 09/03/2003)
355 Letter dated 9/8/2003 from Emily Martin to Mag. Levy, written on behalf of Plaintiff−Intervenors, in response to the United States' letter moving to compel Plaintiff−Intervenors' response to the United States' contention interrogatories, served on 7/1/03. Attached Exhibits 1−3. (Dobkin, David) (Entered: 09/18/2003)
Minute Entry for proceedings held before Robert M. Levy : Charles Leggott, Keisha Bell, for plaintiff; Norma Cote for defendant; Michael Rosman for Brennan intervenors; Emily Martin, Lenore Lapidus for Caldero intervenors. Resolving defendant's motion for a protective order regarding : (1) The scope of 30(b)(6) depositions. To the extent the Brennan intervenors seek to question the defendant's 30(b)(6) witness concerning matters beyond the scope of the areas designated in the 30(b)(6) notice, and the Brennan intervenors shall afford defendant a reasonable amount of time to prepare its witness(es) on those matters. The parties shall contact the court in the event of an irresolvable dispute. (2)Defendant's 1993 and 1996 race and ethnicity surveys. The Brennan intervenors shall identify all individuals whose race or ethnicity they allege was wrongly identified in those surveys. Defendant shall then prepare the 30(b)(6) witness(es) on the specifics of the race and ethnicity data for those individuals. (3) Review of qualifications of offerees. The 30(b)(6) witness shall testify only as to reviews of the qualifications of those offerees who were found not qualified prior to taking the relevant examinations. Resolving plaintiff's motion to compel responses to its contention interrogatories: plaintiff and the Caldero intervenors shall meet and confer to narrow the interrogatories to exclude, to the extent possible, all interrogatories seeking facts or evidence. The Caldero intervenors shall answer all contention interrogatories seeking, inter alia, explanation of claims or legal theories.Discovery Hearing held on 9/17/2003. (Tape #62: 610−2316.) (Levy, Robert) (Entered: 09/17/2003)
354 Letter dated 9/3/2003 from Jodi Danis to Mag. Levy, regarding a discovery dispute between the United States and proposed Caldero Intervenors Proposed Caldero Intervenors have refused to provide responses to any of the contention interrogatories that the United States served upon them on 7/1/2003, after it was authorized to do so by this Court. w/attachments. (Dobkin, David) (Entered: 09/18/2003)

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09/18/2003 09/22/2003 09/23/2003 09/26/2003 10/01/2003
10/21/2003 10/27/2003 10/30/2003
10/30/2003 11/04/2003 11/05/2003 11/10/2003 11/12/2003 11/13/2003

356 Letter dated 9/10/2003 from Jodi Danis to Mag. Levy, written in response to cousnel for the Caldero Intervenor's 9/8/03, letter addressing the United States' motion to compel responses to contention interrogatories.. (Dobkin, David) (Entered: 09/18/2003)
357 TRANSCRIPT of Telephone Proceedings held on 6/20/2003 before Judge Levy. Court Reporter: Elizabeth Barron. Plaintiff counsel: Charles Leggott, Jodi Danis and Keesha Bell. Defense counsel: Norma Cote, Michael Rosman and Emily Martin. (Dobkin, David) (Entered: 09/22/2003)
359 Letter dated 9/11/03 from Charles E. Leggott to Magistrate Robert M. Levy providing the Court with a status report of the litigation. (Black, Amanda) (Entered: 09/29/2003)
358 TRANSCRIPT of conference held on 9/15/2003 before Judge Levy. O/T: Rosalie Lombardi: L.F., Transcription Plus II. (Barrett, Charryse) (Entered: 09/26/2003)
369 Letter dated 9/30/2003 from Melissa Chernofsky to Mag. Levy, requesting that the court enforce the compromise embodied by the 9/17 order, which required the U.S. to narow its contention interrogatories to exclude, to the extent possible, all interrogatories seeking facts and evidence. The Caldero Intervenors will then answer Proposed interrogatories No. 1, 1(b), 2 and 2(b). w/attachments. (Dobkin, David) (Entered: 11/17/2003)
364 Letter dated 10/17/2003 from Michael Rosman to Judge Block, requesting a pre−motion conference in the above case. (Dobkin, David) (Entered: 11/10/2003)
362 Letter dated 10/24/2003 from Keisha Dawn Bell to Judge Block, written in response to Intervenors−Objectors' 10/17/2003 letter to the Court requesting a premotion conference. (Dobkin, David) (Entered: 10/30/2003)
360 Letter dated 8/25/2003 from Norma Cote to Judge Block, requesting an extra 3 days until 10/31/2003 to respond to the 10/17/203 letter of counsel from the Center for Individual Rights, which represents certain intervenors in this case, requesting a pre−motion conference concerning a motion they wish to make. (Dobkin, David) (Entered: 10/30/2003)
361 Letter dated 10/28/2003 from Emily Martin to Judge Block, stating that the request for a premotion conference should be denied and that the Brennan Objector−Intervenors should not be permitted to file the proposed motion. (Dobkin, David) (Entered: 10/30/2003)
370 Letter dated 11/3/2003 from Michael Rosman to Mag. LEvy, written in response to the U.S.'s peculiar request for a ruling on a 5 year old discovery dispute, set forth in a letter from Jodi Danis to the court dated 10/28/2003, a few days before the discovery deadline.. (Dobkin, David) (Entered: 11/17/2003)
365 Letter dated 11/3/2003 from Michael Rosman to mag. Levy, written in response to the United States's peculiar request for a ruling on a 5 year old discovery dispute, set forth in a letter from Jodi Danis to the Court dated 10/28/2003, a few days before the discovery dealine. (Dobkin, David) (Entered: 11/10/2003)
363 ORDER granting application for extension of time to answer applications in the above case to 11/14/2003. Signed by Judge Robert M. Levy on 11/6/2003. (endorsed on letter dated 11/6/2003 from Norma Cote to Mag. Levy)(Dobkin, David) (Entered: 11/10/2003)
372 Letter dated 11/9/2003 from Norma Cote to Mag. Levy, written in response to the 10/28/2003 letter of Jodi Danis, requesting that the Court now rule on an expert evidence matter that arose in 1998 and was tabled when a settlement appeared imminent. w/attachments. (Dobkin, David) (Entered: 11/17/2003)
Minute Entry for proceedings held before Robert M. Levy : Charles Leggott, Jodi Danis, Keisha Bell, for plaintiff; Norma Cote for defendans; Michael Rosman, for Brennan Intervenors; Melissa Chernofsky, for Caldero Intervenors. (1)The Caldero Intervenors shall answer the United States' Proposed Contention Interrogatories 1 and 2, but not 1(a) and 2(a), which call for "all facts and evidence" upon which these intervenors base their contentions. The court finds that the burdens of

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11/17/2003 11/17/2003 11/17/2003 11/17/2003 11/17/2003 11/18/2003 11/25/2003
12/08/2003 12/08/2003

responding outweigh the benefits at this time, that it is uncertain whether and to what extent the United States and the Caldero Intervenors will take adverse positions in this litigation, and that any possible prejudice to plaintiff can be reasonably minimized by adjusting the briefing schedule for anticipated motions. In addition, the Caldero Intervenors are directed to forward any drafts of affidavits or other documents prepared in connection with such motions, which contain the information requested in 1(a) and 2(a), as soon as they have been finalized. (2) The court denies the motion of the United States to strike the Reilly rebuttal expert report as premature as the disputed portions are relevant to the validity of the tests in question and the existence of alternative procedures. The United States has leave to renew if there is a finding that no prima facie case of disparate impact has been made, in which case the court will be asked to address the issue of business necessity and related questions concerning test validity and alternative procedures. Defendants and the Brennan Intervenors are free to oppose the motion on substantive and procedural grounds, including untimeliness. (3) Defendants and the Caldero Intervenors shall meet and confer to narrow their disputes concerning the scope of 30(b)(6) depositions. The court will resolve any lingering disputes at the next conference on November 20, 2003 at 3:00 (by telephone). The parties will also advise at the 11/20 conference whether they agree to mediation. Discovery Hearing held on 11/13/2003. (Levy, Robert) (Entered: 11/13/2003)
366 Letter dated 10/17/2003 from Michael Rosman to Judge Block, requesting a premotion conference be set in the above case. (Dobkin, David) (Entered: 11/17/2003)
367 Letter dated 10/31/2003 from Norma Cote to Judge Block, stating that defts urge the Court not to permit the Objector−Intervenors to make a proposed motion. (Dobkin, David) (Entered: 11/17/2003)
368 NOTICE setting a premotion conference in the above case for 1/9/2003 at 11:00a.m. before Judge Block. Sent to al parties by Michael Innelli, dated 11/13/2003. (Dobkin, David) (Entered: 11/17/2003)
371 Letter dated 11/3/2003 from Michael Rosman to Mag. Levy, written to seek an order compelling defts to respond to certain discovery requests. w/attachments.. (Dobkin, David) (Entered: 11/17/2003)
373 Letter dated 11/10/2003 from Charles Leggott to Mag. Levy, stating that the purpose of this letter is to provide the Court with the parties' assessment of the status of discovery and enumerate the outstanding discovery issues awaiting resolution by the Court. (Dobkin, David) (Entered: 11/17/2003)
378 Letter dated 11/17/2003 from Jodi Danis to Mag. Levy, written to seek clarification of several items regarding the Court's 11/13/2003 minute entry summarizing the rulings the Court made during the discovery hearing held that same day. (Dobkin, David) (Entered: 12/09/2003)
375 CONSOLIDATION ORDER stating that the case 02−cv−256 be consolidated into lead case 96−cv−374; it is orderd that case 02−cv−256 be administratively closed and al further entries be made on the lead case on 96−cv−374. Signed by Judge Frederic Block on 11/25/2003. (Dobkin, David) Additional attachment(s) added on 2/26/2004 (Dobkin, David). . (Entered: 11/25/2003)
376 TRANSCRIPT of telephone Proceedings held on 6/20/2003 before Judge Levy. Court Reporter: Elizabeth Barron. Plaintiff counsel: Charles Leggott, Jodi Danis and Keesha Bell. Defense counsel: Norma Cote, Michael Rosman and Emily Martin. (Dobkin, David) (Entered: 12/08/2003)
Minute Entry for proceedings held before Robert M. Levy : Jodi Danis, Charles Leggott, plaintiff; Norma Cote, defendants; Michael Rosman, Brennan Intervenors; Emily Martin, Melissa Chernofsky, Caldero Intervenors. Rulings made on the record. With regard to the Brennan Intervenors' Contention Interrogatories to the defendants, defendants will respond as follows: (1) at this time defendants intend to remain silent as to Interrogatory #1,and will notify intervenors if their position changes; (2) at this time defendants are not able to take a position as to Interrogatory #2 and will notify intervenors if and when their position changes. With regard to the "Collective Bargaining Agreement witness (Brennan

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12/08/2003 12/09/2003 12/09/2003 12/09/2003 01/14/2004
01/26/2004 02/17/2004 02/27/2004 03/08/2004 03/08/2004 03/09/2004

Intervenors' 30(b)(6) topic #2)," Ms. Cote will explain (1) what was different, if anything, about the rating and transfer plan between Febrary 2000 and March 2002 from what is contained in the 1995−1999 Collective Bargaining Agreement signed in 2002; and (2) where to look for rating and transfer provisions in the Collective Bargaining Agreement that was in effect from 1999 through March 2002. All parties agree to mediation in the cases in which they are involved, however defendants agree to mediation only on condition that both this case and the related and subsequently consolidated Brennan v. Ashcroft, 02 CV 256 (FB)(RML), be mediated. The court's ADR Administrator Gerald Lepp will select an appropriate mediator and advise the parties. Discovery Hearing held on 11/20/2003. (Tape #80:2788−6477.) (Levy, Robert) (Entered: 12/08/2003)
CASE REFERRED to Mediation. (Levy, Robert) (Entered: 12/08/2003)
377 Letter dated 11/17/2003 from Norma Cote to Mag. Levy, written in response to the 11/3/2003 discovery application of the Center for Individual Rights, attys for the Objector−Intervenors or Brennan Intervenors, seeking to compel defts to respond to two contention interrogatories and to produce an agency witness. (Dobkin, David) (Entered: 12/09/2003)
379 Letter dated 11/18/2003 from Norma Cote to Mag. Levy, requesting to be relieved temporarily of the timetable for resolving the outstanding discovery disputes involving the defts, because of the overwhelming conflicting professional demands on my time in recent days and for the next approximately four weeks. (Dobkin, David) (Entered: 12/09/2003)
380 Letter dated 11/18/2003 from Melissa Chernofsky to Mag. Levy, written in response to the letter from U.S. dated 11/17/2003, requesting that the Court clarify the Order from the 11/13/2003, telephonic status conference. (Dobkin, David) (Entered: 12/09/2003)
381 NOTICE of appointment of Vivien Shelanski as Mediator. The Mediator shall schedule the first mediation session after consultation with Counsel. Counsel must file with the Mediator at least 7 days in advance of the first session both all pleadings and a mediation statement outlining the facts and legal issues. Attendance in person is required of the trial counsel, insurance adjustor, and client representative with full settlement authority. The mediation session shall take place in the NEW Courthouse of the Southern District of New York, 500 Pearl Street, New York, NY, unless otherwise provided. The Mediator's contact information is: c/o JAMS, 45 Broadway, 28th floor, NY, NY 10006; Tel: 212−751−2700; fax 212−751−4099; email address vshelanski@jamsadr.com (Lepp, Gerald) (Entered: 01/14/2004)
382 ORDER stating that the Court will stay resolution of the two pending objections until the conclusion of the mediation process. Signed by Judge Frederic Block on 1/14/2004. (Dobkin, David) (Entered: 01/26/2004)
383 Letter dated 2/10/2004 from George McCarter to Judge Block, advising of new address. (Dobkin, David) (Entered: 02/17/2004)
385 Letter dated 2/26/2004 from Emily Martin to Mag. Levy, written on behalf of the Caldero Intervenors to compel defts to designate and produce witnesses,and produce answers to Interogatories. w/attachments. (Dobkin, David) (Entered: 03/10/2004)
384 ORDER granting application for extension of time to respond to the Caldero Intervenors' application to compel discovery from the defts. Signed by Judge Robert M. Levy on 3/4/2004. (endorsed on letter dated 3/3/2004 from Norma Cote to Mag. Levy).(Dobkin, David) (Entered: 03/08/2004)
396 Letter dated 3/3/2004 from Michael Rosman to Mag. Levy, written to seek an order compelling defts to produce witnessses to testify on certain matters. w/attachments. (Dobkin, David) (Entered: 05/17/2004)
386 Letter dated 3/8/2004 from Norma Cote to Mag. Levy, constituting deft Board of Education's response to the 2/26/2004 letter application of the Caldero intervenors to compel discovery from defts and for sanctions. w/attachments. (Dobkin, David)

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03/09/2004 03/24/2004 03/24/2004 04/01/2004 04/06/2004 04/14/2004
04/19/2004 04/21/2004 04/22/2004 05/14/2004

(Entered: 03/10/2004)
387 Letter dated 3/3/2004 from Michael Rosman to Mag. Levy, written to seek an order compelling defts to produce witnesses to testify on certain matters. w/attachments. (Dobkin, David) (Entered: 03/10/2004)
388 ORDER granting brief extension of time to respond to the Brennan Intervenors' 3/3/2004 letter application to compel discovery from the defts until 3/16/2004.Signed by Mag. Levy. (endorsed on letter dated 3/10/2004 from Norma Cote to Mag. Levy). (Dobkin, David) (Entered: 03/24/2004)
389 Letter dated 3/17/2004 from Michael Rosman to Charles Leggott, Emily Martin, Norma Cote, and Melissa Chernofsky, re: enclosure of Brennan Intervenors' motion for dismisal. w/o enclosures. (Dobkin, David) (Entered: 03/24/2004)
390 Letter dated 3/24/2004 from Emily Martin to Judge Block, written in response to the Brennan Intervenor's motion for dismissal on ground of mootness or partial summary judgment. (Dobkin, David) (Entered: 04/01/2004)
391 Letter dated 3/19/2004 from Michael Rosman to Mag. Levy, written briefly to respond to several of Ms. Cote's contentions in her letter dated 3/16/2004, which was itself a response to his 3/3/2004, letter to the court. (Dobkin, David) (Entered: 04/06/2004)
392 SCHEDULING ORDER:A telephone conference has been scheduled for May 13, 2004 at 10:00 a.m., at(718) 260−2340. All parties must be available. Plaintiffs' counsel is requested to initiate conference call and confirm with defendants' counsel that all necessary participants are aware of this conference. SEE ORDER Signed by Judge Robert M. Levy on 4/14/04. (Marino, Janine) (Entered: 04/14/2004)
394 NOTICE of withdrawal of counsel and notice of appearance for Christine M. Roth. (Dobkin, David) (Entered: 04/22/2004)
393 Letter dated 4/19/2004 from Emily Martin to Judge Block, requesting that litigation be stayed pending mediation. (Dobkin, David) (Entered: 04/21/2004)
395 Letter dated 4/14/2004 from Michael Rosman to Judge Block, written in brief response to the letters from attys from the Caldero Intervenors dated 3/24/2004 and joined in by the attys for the U.S. and defts. (Dobkin, David) (Entered: 04/22/2004)
Minute Entry for proceedings held before Robert M. Levy : Charles Leggott, plaintiff; Norma Cote, defendant; Michael Rosman, Brennan Intervenors; Emily Martin, Melissa Chernofsky, Lenore Lapidus, Caldero Intervenors. All outstanding discovery issues resolved as set forth on the record. The court notes that discovery delays have resulted from the defendant's failure to staff this complex and multi−issue case adequately. In the event no settlement is reached following the mediation scheduled for early June, the court strongly urges the defendant to add additional staff or to obtain pro bono assistance. In a common interest in avoiding further delays, all parties have consented to have the court use its efforts to help locate pro bono counsel for defendant, in the event defendant is unable to obtain adequate staffing on its own. Rulings made on the record include but are not limited to the following: (1) By 5/24/04 defendant shall; (a) identify for Mr. Rosman all previous depositions and exhibits relating to practical test 5040; (b) provide the last known address of Lou Capoli, in the event Ms. Martin cannot locate him through her clients; and (c) provide the information described at the last conference relating to the collective bargaining agreement. (2) By 6/7/04 defendant shall (a) serve its objections to the Caldero intervenors' 30(b)(6) notices; (b) provide Ms. Martin with a list of prior depositions dealing with the recruitment issues; and (c) furnish an affidavit concerning individuals who initially were found unqualified but subsequently were found qualified. (3) By 6/7/04 the Caldero intervenors shall (a) notice any additional depositions they intend to take; and (b) advise whether they intend to supplement their expert report. (3) By 6/15/04 defendant shall (a) designate a supplemental 30(b)(6) witness to fill gaps in Mr. Lonergan's 30(b)(6) deposition, and specifically, with regard to the interview processes for each of the examinations in suit by which the Board of Education interviewed prospective candidates prior to hiring them, the witness shall be

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05/17/2004 05/17/2004 05/17/2004 05/17/2004 05/17/2004 05/17/2004 05/19/2004 05/20/2004
06/04/2004 06/04/2004 06/04/2004 06/06/2004 06/09/2004 06/09/2004

prepared to state which specific skills were examined in the interview and why. (4) By 6/21/04 defendant shall respond to the Caldero Intervenors' outstanding interrogatories. Discovery deadline extended to 9/14/04. Next conference 9/15/04 at 11:30.Discovery Hearing held on 5/13/2004. (Tape #31: 680−end; 32: 0−656.) (Levy, Robert) (Entered: 05/14/2004)
397 Letter dated 3/15/2004 from Emily Martin to Mag. Levy, written in reply to defts' 3/8/2004, response to the Caldero Intervenors' motion to compel and for sanctions. (Dobkin, David) (Entered: 05/17/2004)
398 Letter dated 3/16/2004 from Norma Cote to Mag Levy, stating that this letter and its attachments constitutes defts' response to the 3/3/2004 application by the Brennan Intervenors to compel discovery from defts. w/attachments. (Dobkin, David) (Entered: 05/17/2004)
399 Letter dated 3/17/2004 from Michael Rosman to All counsel, re: enclosure of Brennan Intervenors' motion for dismissal on grounds of mootness or partial summary judgment. w/o enclosure. (Dobkin, David) (Entered: 05/17/2004)
400 Letter dated 3/19/2004 from Michael Rosman to Mag. Levy, written to respond to several of Ms. Cote's contentions in her letter dated 3/16/2004. (Dobkin, David) (Entered: 05/17/2004)
401 Letter dated 5/10/2004 from Emily Martin to Mag. LEvy, written to update recent discovery developments in preperation for the 5/13 conference. (Dobkin, David) (Entered: 05/17/2004)
402 Letter dated 5/7/2004 from Michael Rosman to All counsel. re: enclosure of Brennan Intervenor's motion for class caertification in the action 96−cv−374. (Dobkin, David) (Entered: 05/17/2004)
403 Letter dated 5/11/2004 from Matthew Colangelo to All counsel, re: enclosure of intervenor and supporting papers. w/o enclosure. (Dobkin, David) (Entered: 05/19/2004)
404 Letter dated 5/18/2004 from Emily Martin to Judge Block, written on behalf of Caldero Plaintiff−Intervenors in response to the Brennan Objector−Intervenors' 5/7/2004, letter to the Court seeking a pre−motion conference for a motion to amend their complaint in intervention under Rule 15(a), as required by the Court's Individual Motion Practice Rules. (Dobkin, David) (Entered: 05/20/2004)
405 Letter dated 5/7/2004 from Brennan−Intervenors' counsel Michael Rosman to Judge Block, requesting a pre−motion conference and notifying the Court and parties that they intend to move to amend their complaint in intervention. (Latka−Mucha, Wieslawa) (Entered: 06/04/2004)
406 Letter dated 5/19/2004 from Charles E. Leggott to Judge Block, in response to Brennan−Intervenors' 5/7/2004 letter seeking a pre−motion conference and notifying the Court and parties that they intend to move to amend their complaint in intervention. (Latka−Mucha, Wieslawa) (Entered: 06/04/2004)
407 NOTICE: A pre−motion conference in the captioned case is scheduled for June 25, 2004 at 11:00 a.m. in the chambers of Judge Frederic Block. (Signed on 6/1/2004 by Michael J. Innelli, Case Manager) C/M by Chambers. (Latka−Mucha, Wieslawa) (Entered: 06/04/2004)
474 TRANSCRIPT of Civil Cause for Conference held on 9/15/04 before Judge Robert M. Levy. Court Reporter: Elizabeth Barron. (Drayton, Lorraine) (Entered: 01/14/2005)
408 Letter dated 6/7/04 from Michael E. Rosman, Esq. to USDJ Block requesting a pre−motion conference and to set forth the basis of their anticipated motion. They hope to discuss the motion at the already−scheduled pre−motion conference on 6/25/04. (Nieves, Adrian) (Entered: 06/09/2004)
415 Letter dated 6/7/04 from Michael E. Rosman, Esq. to USDJ Block, requesting a pre−motion conference. (Nieves, Adrian) (Entered: 07/06/2004)

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06/15/2004 06/17/2004 06/17/2004 06/22/2004
06/28/2004 06/28/2004
07/06/2004 07/06/2004 07/06/2004
07/06/2004
07/06/2004 07/06/2004 07/06/2004 07/06/2004 07/06/2004 07/06/2004 07/06/2004 07/06/2004 07/06/2004

409 Letter dated 6/7/04 from Michael E. Rosman, Esq. to USDJ Block requesting a pre−motion conference and to set forth the basis of their anticipated motion. (Nieves, Adrian) (Entered: 06/15/2004)
410 TRANSCRIPT of conference before USMJ Levy dated 9/15/03. Court Transcriber: Aria Transcriptions. (Nieves, Adrian) (Entered: 06/18/2004)
411 TRANSCRIPT of conference before USMJ Levy dated 9/20/03. Court Transcriber: Aria Transcriptions. (Nieves, Adrian) (Entered: 06/18/2004)
412 Letter dated 6/16/2004 from Melissa Chenofsky to Judge Block, in response to the Brennan Objector−Intervenors' 6/7/2004, letter to the Court seeking a pre−motion conference to discuss a proposed partial summary judgment motion. (Dobkin, David) (Entered: 06/22/2004)
413 Letter dated 6/23/2004 from Norma Cote to Judge Block, written in response to the motion of nine individuals Pedro Arroyo et al., to intervene as plaintiffs. (Dobkin, David) (Entered: 06/28/2004)
414 Letter dated 6/22/2004 from Melissa Chernofsky to Judge Block, requesting that if intervention as of right is granted, that the Court also grant the Caldero−Intervenors, currently permissive intervenors, intervention as of right. (Dobkin, David) (Entered: 06/28/2004)
416 TRANSCRIPT of Civil Cause Proceedings held on 5/13/2004 before Judge Levy. Court Reporter: Aria Transcriptions c/o Elizabeth Barron. Plaintiff cpunsel: charles Leggott. Defense counsel: Norma Coter. (Dobkin, David) (Entered: 07/06/2004)
421 MOTION to Intervene by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides. (Dobkin, David) (Entered: 07/08/2004)
422 MEMORANDUM of law in Support re 421 MOTION to Intervene by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides. (Dobkin, David) (Entered: 07/08/2004)
423 Complaint in Intervention by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides re 421 MOTION to Intervene (Dobkin, David) (Entered: 07/08/2004)
424 AFFIDAVIT of Nicholas Pantelides in Support re 421 MOTION to Intervene by Nicholas Pantelides. (Dobkin, David) (Entered: 07/08/2004)
425 AFFIDAVIT of Silvia Ortega DeGreen in Support re 421 MOTION to Intervene by Silvia Ortega de Green. (Dobkin, David) (Entered: 07/08/2004)
426 AFFIDAVIT of James Martinez in Support re 421 MOTION to Intervene by James Martinez. (Dobkin, David) (Entered: 07/08/2004)
427 AFFIDAVIT of Anibal Maldonado in Support re 421 MOTION to Intervene by Anibal Maldonado. (Dobkin, David) (Entered: 07/08/2004)
428 AFFIDAVIT of Steven Lopez in Support re 421 MOTION to Intervene by Steven Lopez. (Dobkin, David) (Entered: 07/08/2004)
429 AFFIDAVIT of Jose Casado in Support re 421 MOTION to Intervene by Jose Casado. (Dobkin, David) (Entered: 07/08/2004)
430 AFFIDAVIT of Celestino Fernandez in Support re 421 MOTION to Intervene by Celestino Fernandez. (Dobkin, David) (Entered: 07/08/2004)
431 AFFIDAVIT of Pedro Arroyo in Support re 421 MOTION to Intervene by Pedro Arroyo. (Dobkin, David) (Entered: 07/08/2004)
433 RESPONSE to Motion re 421 MOTION to Intervene filed by United States of America. w/attachments. (Dobkin, David) (Entered: 07/08/2004)

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07/06/2004 07/06/2004 07/06/2004 07/07/2004 07/07/2004 07/07/2004 07/08/2004 07/08/2004 07/08/2004 07/09/2004 07/15/2004
07/15/2004 08/03/2004
08/04/2004 08/30/2004 09/09/2004

434 MEMORANDUM in Opposition re 421 MOTION to Intervene by James G. Ahearn, John Brennan. (Dobkin, David) (Entered: 07/08/2004)
435 Statement of Michael Rosman in Opposition re 421 MOTION to Intervene . (Dobkin, David) (Entered: 07/08/2004)
436 REPLY to Response of parties opposition to Motion re 421 MOTION to Intervene filed by Pedro Arroyo. (Dobkin, David) (Entered: 07/08/2004)
417 Letter dated 7/2/2004 from Charles Leggott to Judge Block, re: attachment of an order issued by District Judge Collyer in Center for Individuak Rights v. U.S. Dept of Justice, 03−cv−1706, an action pending in the U.S. District Court for the Distict of Columbia. w/o attachment. (Dobkin, David) (Entered: 07/07/2004)
418 Letter dated 6/30/2004 from Charles Leggott to Judge Bock, stating that the U.S. hereby responds to the Brennan−Intervenors' letter of 6/7/2004 seeking a pre−motion conference and setting forth the bases for their anticipated motion for partial summary judgment. (Dobkin, David) (Entered: 07/07/2004)
437 NOTICE of Appearance by Diana Embry on behalf of United States of America (Dobkin, David) (Entered: 07/08/2004)
419 Letter dated 7/6/2004 from Matthew Colangelo to Judge Block, re: enclosure of motion and supporting papers. w/enclosures. (Dobkin, David) (Entered: 07/08/2004)
420 NOTICE of motion to intervene by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides. (Dobkin, David) (Entered: 07/08/2004)
432 Letter dated 6/22/2004 from Melissa Chernofsky to Judge Block, written on behalf of the Caldero Plaintiff−Intervenors in response to the motion to intervene. (Dobkin, David) (Entered: 07/08/2004)
440 Minute Entry for proceedings held before Frederic Block : Pre Motion Conference held on 7/9/2004. Case called. All cousnel present; Conference held; Intervenor NAACP's motion is granted; rulings made see order. (Dobkin, David) (Entered: 08/03/2004)
438 ORDER stating that the application for sanctions is denied at this time. Deft's request for additional time is granted. The interrogatory responses shall be served by 8/13/2004. Final. Signed by Judge Robert M. Levy on 7/14/2004. (endorsed on letter dated 7/9/2004 from Norma Cote to Mag. Levy).(Dobkin, David) (Entered: 07/15/2004)
439 Letter dated 6/30/2004 from Melissa Chernofsky to Mag. Levy, requesting the COurt order appropriate sanctions against defts for failure to comply with discovery orders. (Dobkin, David) (Entered: 07/15/2004)
441 ORDER granting 421 Motion to Intervene; briefing schedule: movant, the Brennan Intervenors will file their motion on 9/20/2004, the other parties will reply on 10/20/2004, and the Brennan Intervenors will in turn file their rely on 11/10/2004. Signed by JudgeFrederic Block on 7/20/2004. (Dobkin, David) (Entered: 08/03/2004)
442 STIPULATION and Order Adding Proposed Plaintiff−Intervenor and Allowing Amendment of Proposed Complaint in Intervention by Pedro Arroyo. (Attachments: # 1 Cover Letter to Judge Block# 2 Declaration of Wilbert McGraw)(Colangelo, Matthew) (Entered: 08/04/2004)
443 ORDER stating that Wilbert McGraw be added as a proposed plaintiff−intervenor in the above case. Signed by Judge Frederic Block on 8/25/2004. (Dobkin, David) (Entered: 08/30/2004)
444 ORDER Endorsed on letter dated 8/31/04 from Norma Cote,Esq. to USMJ Levy. : Application granted a two day extention of time from Wednesday, Sept. 1 to Fri, Sept. 3 to answer the 8/26/04 letter applciation of counsel for the Calderno Intervenors. Signed by Judge Robert M. Levy on 9/7/04. (Williams−Jackson,

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 41 of 65

09/15/2004
09/17/2004 09/21/2004 09/22/2004 09/22/2004 09/23/2004 09/29/2004 09/29/2004 09/30/2004 10/04/2004 10/14/2004

Sandy) (Entered: 09/09/2004)
Minute Entry for proceedings held before Robert M. Levy : Charles Leggett, USA; Norma Cote, Bd of Ed; Michael Rosman, Brennan Intervenors; Emily Martin, Caldero Intervenors; Matthew Colangelo, Arroyo Intervenors. Rulings made on the record. A strict discovery deadline is imposed, which shall not be altered without express written leave of the court and upon a showing of good cause. Court ordered deposition dates for defendant's 30(b)(6) witness(es)as to topics not objected to by defendant: 9/30, 10/1, 10/5, or 10/6. The parties may change the dates upon mutual consent, but in no event shall the depositions be completed later than 10/6/04. Defendant's counsel shall advise counsel for the Caldero Intervenors forthwith whether any topic is overly broad and specifically state which topics have already been covered by which documents and/or deposition testimony. These parties shall then meet and confer to resolve any differences by 9/22/04 and, if unable to do so, shall advise the court in writting of any material unresolved issues by 9/25/04. Defendant shall schedule Mr. Soluga's 30(b)(6) deposition by 10/6/04. Subject to Judge Block's approval, the briefing schedule may be extended either (a) 30 days or (b) to a date 5 days after the close of discovery. The court will advise the parties of the final ruling. Discovery Hearing held on 9/15/2004. (Tape #73: 3452−6959; 74: 0−220.) (Levy, Robert) (Entered: 09/15/2004)
453 Letter dated 9/14/2004 from Michael E. Rosman to USMJ Levy, setting forth the positions of the Brennan Intervenors with respect to discovery. (Barrett, C.) (Entered: 10/22/2004)
Minute Entry for proceedings held before Robert M. Levy : The briefing schedule is extended 30 days, as discussed at the 9/15/04 conference. SO ORDERED. 9/21/2004. (Levy, Robert) (Entered: 09/21/2004)
445 Letter dated 9/8/04 from AUSA: Charles Leggott to USMJ Levy, requesting a teleconference with the Court and counsel for the parties to discuss the status of the pending discovery. (Williams−Jackson, Sandy) (Entered: 09/22/2004)
446 Letter dated 9/14/04 from Michael Rosman,Esq. to USMJ Levy, regarding the positions of the Brennan Intervenors with respect to discovery, and to request a short adjournment of the current dates for briefing set by Judge Block.(Williams−Jackson, Sandy) (Entered: 09/22/2004)
447 Letter to Judge Levy regarding unresolved topics in the Arroyo Intervenors' Notice of 30(b)(6) Deposition. (Colangelo, Matthew) (Entered: 09/23/2004)
448 Letter dated 8/26/2004 from Emily J. Martin, Esq. to Judge Levy Regarding request to compel deposition, exhibits attached. (Lee, Tiffeny) (Entered: 09/29/2004)
465 Letter dtd. 9/27/04 from Norma A Cote, Senior Counsel to Judge Levy, informing the Court re: issues that still divide the defts and the Caldero Intervenors concerning their demands for agency witnesses under Fed.R.Civ.P. 30(b)(6) and why defts cannot and should not have to accede to their demands. (w/Letters dtd. 9/18 and 9/22). (Layne, Monique) (Entered: 11/15/2004)
449 MOTION to Amend/Correct Complaint In Intervention by Dennis Mortensen, Scott Spring, James G. Ahearn, John Brennan. (Attachments: # 1 Exhibit Propose Pleading# 2 US Memo In Opposition# 3 Caldero Intevenors Memo In Opposition# 4 Arroyo Intervenors Memo In Opposition# 5 Reply Memorandum In Support of Motion &Rosman Statement# 6 Exhibit Exhibits To Rosman Statement In Reply)(Rosman, Michael) (Entered: 09/30/2004)
REPORT of Mediation. This case has not settled and is returned to the assigned judges. The mediation included meetings with Counsel in Washington and New York as well innumerable telephone conferences. No further mediation sessions are contemplated. Attorney Questionnaires due by 10/18/2004.(Lepp, Gerald) (Entered: 10/04/2004)
450 MOTION to Compel NYC to produce a 30(b)(6)witness for deposition by Janet A. Caldero. (Williams−Jackson, Sandy) (Entered: 10/14/2004)

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10/14/2004 10/14/2004 10/15/2004 10/21/2004
10/22/2004 10/22/2004 10/25/2004 10/26/2004
11/02/2004 11/03/2004 11/05/2004 11/05/2004

455 Notice of MOTION and Motion for Limited Admission to admit pro hac vice by James G. Ahearn, John Brennan, Dennis Mortensen, Scott Spring. (Williams−Jackson, Sandy) (Entered: 10/25/2004)
CASE FILING FEE: $ 25, receipt number 300645. (Williams−Jackson, Sandy) (Entered: 10/25/2004)
451 NOTICE by United States of America of Withdrawal of Appearance of Counsel (Embry, Diana) (Entered: 10/15/2004)
before Robert M. Levy: Charles Leggott, USA; Norma Cote, Dept of Ed; Michael Rosman, Brennan Intervenors; Emily Martin, Caldero Intervenors; Matthew Colangelo, Arroyo Intervenors. Rulings made on the record resolving disputes regarding, inter alia, scope of defendant's 30(b)(6) depositions. The parties have resolved the dispute over the Arroyo's 30(b)(6) depositon notice. The parties shall submit a proposed revised discovery schedule by the close of business Friday, October 22, 2004. In drafting their proposed order, the parties shall keep in mind the need to expedite this litigation and shall limit the extension to the minimum period necessary to provide achieve compliance with the court's rulings today.Discovery Hearing held on 10/18/2004. (Tape #86: 0−end; 87: 0−3753.) (Levy, Robert) (Entered: 10/21/2004)
452 Mail Returned as Undeliverable. Notice of e−filing receipt for report of mediation filed by Gerald Lepp sent to George W.C. McCarter. (Barrett, C.) (Entered: 10/22/2004)
454 Letter dated 10/13/04 from Matthew Colangelo,Esq. to USMJ Levy, requesting a status conference to discuss how discovery can be completed in an expeditious manner. (Williams−Jackson, Sandy) (Entered: 10/22/2004)
456 ORDER granting 455 Motion for Limited Admission. Signed by JudgeRobert M. Levy on 10/19/04. (Williams−Jackson, Sandy) (Entered: 10/25/2004)
ORDER TO SHOW CAUSE: WHEREAS, the Alternative Dispute Resolution Department of this Court advises that counsel for defendant New York City Board of Education seeks the Court's assistance in preventing the disclosure by plaintiff, the United States, of confidential settlement documents generated solely as part of the mediation of this action, and WHEREAS such disclosure, purportedly through a response to a Freedom of Information Act request, would appear to violate Local Rule 83.11(d)(1)(A), which provides that "[A]ll written and oral communications made by the parties... in connection with or during any mediation session are confidential and may not be disclosed or used for ANY purpose unrelated to the mediation," (emphasis added), the United States is hereby ORDERED TO SHOW CAUSE why an order shall not issue barring the disclosure of such confidential mediation documents. It is FURTHER ORDERED that pending full briefing and a decision of this matter, the United States shall not release any documents received from the defendant in connection with the mediation held in this district. The United States shall submit a letter brief in support of its position on this matter no later than November 5, 2004; opposition papers shall be served by November 12, 2004; and reply papers by November 17, 2004. SO ORDERED. Robert M. Levy, USMJ. Dated October 26, 2004. (Levy, Robert) (Entered: 10/26/2004)
461 ORDER: the extension is granted (see attached) as the discovery remaining after the 10/18/204 conference requires it. No extensions will be granted in the future w/o a showing of good cause, e.g. failure to comply with discovery orders. Signed by Judge Robert M. Levy, on 10/21/2004. (Barrett, C.) (Entered: 11/05/2004)
457 TRANSCRIPT of Conference for date of 10/18/04 before Judge Robert M. Levy. Court Transcriber: Aria Transcriptions. (Williams−Jackson, Sandy) (Entered: 11/04/2004)
458 Letter dated 10/21/2004 from Melissa R. Chernofsky to USMJ Levy, asking that any ruling limiting extension of the discovery schedule allow for an extension for good cause, particularly the failure of defts to comply with their discovery obligations. (Barrett, C.) (Entered: 11/05/2004)
459 Letter dated 9/23/2004 from Matthew B. Colangelo to USMJ Levy, advising as to the status of the Arroyo Intervenors' 30 (b) (6) deposition request. w/attached

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11/05/2004 11/05/2004 11/10/2004 11/12/2004 11/16/2004
11/22/2004 11/24/2004 12/01/2004 12/07/2004 12/09/2004 12/09/2004 12/10/2004 12/23/2004

exhibits 1−5. (Barrett, C.) (Entered: 11/05/2004)
460 Letter dated 10/12/2004 from Melissa R. Chernofsky to USMJ Levy, advising the Court that the parties completed the RULE 30(b)(6) depositions on those topics which defts had no objections. (Barrett, C.) (Entered: 11/05/2004)
462 ORDER: the U.S. shall not release the three documents described as they were written in connection with the mediation in US v. NYC Board of Education. The order to show cause issued by this Court on 10/26/2004 and the accompanying briefing schedule are hereby vacated. Signed by Judge Robert M. Levy, on 11/1/2004. (Barrett, C.) (Entered: 11/08/2004)
463 Letter dated 11/5/04 from Norma Cote,Esq. to USDJ Block, seeking permission to simultaneously file a related motion to enforce paragraph 9 of the settlement against the plaintiff United States.(Williams−Jackson, Sandy) (Entered: 11/10/2004)
464 Letter from Michael Rosman to Judge Frederic Block Regarding Norma Cote's Letter of November 5. (Rosman, Michael) (Entered: 11/12/2004)
466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. Responses due by 12/17/2004 (Attachments: # 1 Affidavit Statement of John Brennan# 2 Affidavit Statement of Dennis Mortensen# 3 Affidavit Statement of William J. Carrington# 4 Exhibit Exhibits to Carrington Statement# 5 Affidavit Statement of James C. Sharf# 6 Exhibit Exhibit to Statement of James Sharf# 7 Affidavit Statement of Michael E. Rosman# 8 Exhibit Exhibits 1−6 to Rosman Statement# 9 Exhibit Exhibits 7−14 to Rosman Statement# 10 Exhibit Exhibits 15−21 to Rosman Statement# 11 Exhibit Exhibit 22−Part 1 to Rosman Statement# 12 Exhibit Exhibit 22−Part 2 to Rosman Statement# 13 Exhibit Exhibits 23−30 to Rosman Statement# 14 Exhibit Exhibits 31−38 to Rosman Statement# 15 Exhibit Exhibits 39−47 to Rosman Statement# 16 Exhibit Exhibits 48−53 to Rosman Statement# 17 Exhibit Exhibits 54−57 to Rosman Statement# 18 Exhibit Deposition Exhibits to Rosman Statement (Cadero−Lonergan 1997)# 19 Exhibit Deposition Exhibits to Rosman Statement (Lonergan 2004−N. Pantelides)# 20 Exhibit Deposition Exhibits to Rosman Statement (Paul−Wilson)# 21 Notice# 22 Memo)(Rosman, Michael) (Entered: 11/16/2004)
467 NOTICE by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn re 462 Order, Rule 72 Objections (Attachments: # 1 Exhibit Exhibit A to Rule 72 Objections)(Rosman, Michael) (Entered: 11/22/2004)
480 Letter dated 11/22/4 from Matthew B. Colangelo, Esq. to Judge Block in support of Norma Cote's letter of 11/5/2004, document #463. (Lee, Tiffeny) (Entered: 03/16/2005)
468 Letter dated 11/23/2004 from Melissa R. Chernofsky to USDJ Block, on behalf of Caldero Plaintiff−Intervenors, joining in the Arroyo Intervenors in supporting Defts' request to file a motion to enforce paragraph 9 of the settlement agreement. (Barrett, C.) (Entered: 12/01/2004)
469 Letter dated 9/27/2004 from Emily J. Martin et al. to USMJ Levy, informing of the status of this case pursuant to the 9/15/2004 letter. (Barrett, C.) (Entered: 12/07/2004)
470 MOTION to Enforce Judgment by all defendants. (Cote, Norma) (Entered: 12/09/2004)
471 Notice of MOTION to Enforce Judgment by all defendants. (Attachments: # 1 Affidavit # 2 Exhibit # 3 Exhibit)(Cote, Norma) (Entered: 12/09/2004)
472 ORDER: the application to file a motion with regard to paragraph 9 of the settlement agreement is granted. Signed by Judge Frederic Block, on 12/9/2004. (Endorsed on letter dated 11/23/2004 from Norma A. Cote to USDJ Block) Copies mailed by Chambers. (Barrett, C.) (Entered: 12/10/2004)
473 Letter dated 12/16/2004 from Norma A. Cote to USDJ Block, requesting a short extension of the briefing schedule for responding to the Brennan Interenors'

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01/10/2005 01/14/2005 01/14/2005 01/24/2005 03/15/2005 03/22/2005 04/05/2005 04/29/2005
04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005

objections to the Settlement Agreement and defts' companion motion to enforce paragraph 9 of that agreement. (Barrett, C.) (Entered: 12/23/2004)
478 Letter dated 1/7/2005 from ACC Colley to Clerk of Court Regarding representation of City of New York. (Lee, Tiffeny) (Entered: 01/25/2005)
475 Letter dated 1/7/05 from Melissa Chernofsky,Esq. to USDJ Block, seeking leave to file motions for partial summary judgment. (Williams−Jackson, Sandy) (Entered: 01/14/2005)
476 Letter dated 1/7/05 from Melissa Chernofsky,Esq. to USDJ Block, submitting a proposed briefing schedule. (Williams−Jackson, Sandy) (Entered: 01/14/2005)
477 MEMORANDUM AND ORDER: The order, as construed by the Court, is not clearly erroneous or contrary to law. c/m by chambers. Signed by Judge Frederic Block on 1/21/05. (Williams−Jackson, Sandy) (Entered: 01/24/2005)
479 Letter from Michael Rosman dated 11/12/04 to Judge Block opposing Norma Cote's 11/5/04 letter. (Hunter, Tara) (Entered: 03/15/2005)
481 Letter from Charles Leggott dated 10/28/04 to Magistrate Levy regarding the possible disclosure by the U.S. of confidential settlement documents. (Hunter−Hicks, Tara) (Entered: 03/22/2005)
482 Letter from Michael E. Rosman dated 4/1/04 to Charles Leggott, Emily J. Martin, Norma Cote, Melissa Chernofsky and Matthew B. Colangelo enclosing a copy of Brennan Intervenors' motion to support with supporting documents. (Hunter−Hicks, Tara) (Entered: 04/05/2005)
483 REPLY to Response to Motion re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order And In Opposition To Separate Motions For Summary Judgment by the Caldero and Arroyo Intervenors filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Affidavit Reply Statement of Michael Rosman# 2 Exhibit Exhibits to Rosman Reply Statement# 3 Affidavit Karen Wuench Statement# 4 Affidavit Wilfredo Ramos Statement# 5 Affidavit James Ahearn Statement)(Rosman, Michael) (Entered: 04/29/2005)
484 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Statement of Facts filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
485 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Memorandum of Point and Auth. in Opp to MSJ filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
486 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Leggott Declaration filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
487 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf1exh 1beg filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
488 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 2 exh 1cont filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
489 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf3 exh1 end and exh 2−4 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
490 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 4 exh 5−7 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
491 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 05 exh 8−13 filed by

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04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005
04/29/2005

United States of America. (Embrey, Diana) (Entered: 04/29/2005)
492 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 06 exh 14−18 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
493 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 07 exh 19 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
494 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 08 exh 20 beg filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
495 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 09 exh 20 end 21−24 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
496 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 10 exh 25−28 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
497 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 11 exh 29−31 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
498 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 12 exh 32−34 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
499 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 13.1 exh 35 depo trans filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
500 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 13.2 depo trans filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
501 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 14 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
502 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 15 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
503 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 16 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
504 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 17 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
505 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 18 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
506 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 19 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
507 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 20 benef files end McMahon begin filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
508 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 20.1 benef files filed

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04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005

by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
509 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 20.1 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
510 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 21 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
511 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 22 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
512 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 23 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
513 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 24 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
514 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 25 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
515 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 26 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
516 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order pdf 27 benef files filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
517 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order U.S. Mem in Supp of Mot to Strike filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
518 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Mot to Strike filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
519 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Opposition to Motion to Enforce para 9 filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
520 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Memorandum in Oppostion to Cross Motions of Caldero and Arroyo filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
521 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Response to Arroyo Statement of Undisputed Facts filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
522 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Response to Caldero Statement of Undisputed Facts filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
523 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Leggott Declaration In Opposition to Cross Motions filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
524 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Leggott Letter and

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04/29/2005
04/29/2005

attachments filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
525 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Exhibits to Memorandum in Opposition to Cross Motions of Caldero and Arroyo filed by United States of America. (Attachments: # 1 # 2 # 3 # 4 # 5)(Embrey, Diana) (Entered: 04/29/2005)
526 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Opposition to Brennan Motion to Strike filed by United States of America. (Embrey, Diana) (Entered: 04/29/2005)
527 MOTION for Partial Summary Judgment by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 04/29/2005)
528 MOTION for Partial Summary Judgment Memorandum of Law in Opposition to Objector−Intervenors Motion for Partial Summary Judgment and in Support of Caldero Intervenors' Motion for Partial Summary Judgment by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 04/29/2005)
529 MOTION for Partial Summary Judgment Rule 56.1 Statement of Undisputed Facts by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 04/29/2005)
530 MOTION for Partial Summary Judgment Declaration of Joyce Jacobsen by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 04/29/2005)
531 MOTION for Partial Summary Judgment Declaration of Jean Phillips by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 04/29/2005)
532 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Statement in Response to Objector−Intervenors' Rule 56.1 Statment of Undisputed Fact filed by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 04/29/2005)
533 MOTION for Partial Summary Judgment , in Opposition to the Brennan Intervenors' Motion for Partial Summary Judgment, and in Response to this Court's Order of July 20, 2004 by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw. Responses due by 4/29/2005 (Attachments: # 1 Memorandum of Law# 2 Rule 56.1 Statement of Facts# 3 Response to Brennan Intervenors' Statement of Facts)(Colangelo, Matthew) (Entered: 04/29/2005)
534 REPLY to Response to Motion re 533 MOTION for Partial Summary Judgment , in Opposition to the Brennan Intervenors' Motion for Partial Summary Judgment, and in Response to this Court's Order of July 20, 2004 filed by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw. (Attachments: # 1 Colangelo Declaration of April 29, 2005# 2 Exhibits 105−120 to the Colangelo Declaration of April 29, 2005# 3 Exhibits 121−130 to the Colangelo Declaration of April 29, 2005# 4 Exhibits 131−137 to the Colangelo Declaration of April 29, 2005)(Colangelo, Matthew) (Entered: 04/29/2005)
535 REPLY to Response to Motion re 527 MOTION for Partial Summary Judgment filed by Janet A. Caldero. (Attachments: # 1 Affidavit Reply Declaration of Melissa R. Chernofsky in Opposition to Objector−Intervenors' Motion for Partial Summary Judgment and in Support of Caldero Intervenors' Motion for Partial Summary Judgment# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P# 18 Exhibit Q# 19 Exhibit R# 20 Exhibit S# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X# 26 Exhibit Y)(Chernofsky, Melissa) (Entered: 04/29/2005)
536 AFFIDAVIT re 535 Reply to Response to Motion,, Certificate of Service by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 04/29/2005)

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04/29/2005
04/29/2005 04/29/2005
05/03/2005 05/04/2005 05/04/2005 05/04/2005 05/06/2005 05/11/2005 05/11/2005 05/11/2005

537 AFFIDAVIT Colangelo Declaration of Jan. 10, 2005 (supporting Arroyo Intervenors' Motion for Partial Summary Judgment, Doc. No. 533) by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw. (Attachments: # 1 Exhibits 1−7 to Colangelo Declaration of 1/10/05# 2 Exhibits 9−13 to Colangelo Declaration of 1/10/05# 3 Exhibits 15−27 to Colangelo Declaration of 1/10/05# 4 Exhibits 28−35 to Colangelo Declaration of 1/10/05# 5 Exhibits 36−42 to Colangelo Declaration of 1/10/05# 6 Exhibits 43−48 to Colangelo Declaration of 1/10/05# 7 Exhibit 49 to Colangelo Declaration of 1/10/05# 8 Exhibits 50−56 to Colangelo Declaration of 1/10/05# 9 Exhibits 57−65 to Colangelo Declaration of 1/10/05# 10 Exhibit 66 to Colangelo Declaration of 1/10/05# 11 Exhibit 67 to Colangelo Declaration of 1/10/05# 12 Exhibits 68−72 to Colangelo Declaration of 1/10/05# 13 Exhibits 73−76 to Colangelo Declaration of 1/10/05# 14 Exhibits 78, 80, &83−87 to Colangelo Declaration of 1/10/05# 15 Exhibits 89−96 to Colangelo Declaration of 1/10/05# 16 Exhibits 97−104 to Colangelo Declaration of 1/10/05)(Colangelo, Matthew) (Entered: 04/29/2005)
538 NOTICE by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw Notice Regarding the Filing of Exhibits in Paper Form (Colangelo, Matthew) (Entered: 04/29/2005)
539 RESPONSE to Motion re 470 MOTION to Enforce Judgment filed by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw. (Attachments: # 1 Colangelo Declaration of 2−16−05# 2 Exhibits 1−4 to the Colangelo Declaration of 2−16−05# 3 Exhibit 5 to the Colangelo Declaration of 2−16−05# 4 Exhibits 6−18 to the Colangelo Declaration of 2−16−05# 5 Exhibits 19−27 to the Colangelo Declaration of 2−16−05)(Colangelo, Matthew) (Entered: 04/29/2005)
540 AFFIDAVIT of Service by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 05/03/2005)
541 Letter dtd 4/29/05 from Matthew Colangelo,Esq. to Clerk of the Court, regarding the filings of exhibits in paper form along with exhibits. (Williams−Jackson, Sandy) (Entered: 05/04/2005)
542 RESPONSE to Motion re 527 MOTION for Partial Summary Judgment, 529 MOTION for Partial Summary Judgment Rule 56.1 Statement of Undisputed Facts filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Certificate of Service)(Rosman, Michael) (Entered: 05/04/2005)
543 RESPONSE to Motion re 533 MOTION for Partial Summary Judgment , in Opposition to the Brennan Intervenors' Motion for Partial Summary Judgment, and in Response to this Court's Order of July 20, 2004 : Rule 56.1 Response To Arroyo Intervenors' Statement of Facts filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Certificate of Service)(Rosman, Michael) (Entered: 05/04/2005)
544 MOTION to Strike by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Memorandum of Law# 2 Affidavit Statement of Michael Rosman# 3 Certificate of Service# 4 United States's Opposition# 5 Reply Memorandum)(Rosman, Michael) (Entered: 05/06/2005)
545 DECLARATION of Emily J. Martin in opposition to the Objector−Intervenors' Objections to Approval of the Settlement Agreement and in of the Caldero Intervenors' 527 MOTION for Partial Summary Judgment. (Barrett, C.) (Entered: 05/11/2005)
546 EXHIBITS 1−73 to the Declaration of Emily Martin, dated 12/23/2004. Related document: 545 Declaration in Support filed by Janet A. Caldero.(Barrett, C.) (Entered: 05/11/2005)
547 Letter dated 5/3/2005 from Melissa R. Chernofsky to Mr. Michael Ianelli, enclosing originals for docketing of the Martin Declaration with exhibits on behalf of the Caldero Intervenors. (w/o encl.) (Barrett, C.) (Entered: 05/12/2005)

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05/16/2005 05/24/2005 05/24/2005 05/24/2005
05/24/2005
05/26/2005 05/27/2005 05/27/2005 05/31/2005 06/09/2005 06/16/2005 06/24/2005

548 MOTION to Strike Declaration of Norma Cote by United States of America. (Leggott, Charles) (Entered: 05/16/2005)
549 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order filed by all defendants. (Attachments: # 1 # 2 # 3 # 4)(Cote, Norma) (Entered: 05/24/2005)
550 RESPONSE in Opposition re 466 MOTION for Partial Summary Judgment And Papers In Response To The Court's July 20, 2004 Order Defendants' Declarations and Exhibits filed by all defendants. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Cote, Norma) (Entered: 05/24/2005)
551 REPLY to Response to Motion re 527 MOTION for Partial Summary Judgment, 528 MOTION for Partial Summary Judgment Memorandum of Law in Opposition to Objector−Intervenors Motion for Partial Summary Judgment and in Support of Caldero Intervenors' Motion for Partial Summary Judgment, 529 MOTION for Partial Summary Judgment Rule 56.1 Statement of Undisputed Facts, 531 MOTION for Partial Summary Judgment Declaration of Jean Phillips, 530 MOTION for Partial Summary Judgment Declaration of Joyce Jacobsen, 533 MOTION for Partial Summary Judgment , in Opposition to the Brennan Intervenors' Motion for Partial Summary Judgment, and in Response to this Court's Order of July 20, 2004 and Reply to Response of United States to Brennan Intervenors' Objections filed by all defendants. (Attachments: # 1 declaration of service)(Cote, Norma) (Entered: 05/24/2005)
552 REPLY to Response to Motion re 527 MOTION for Partial Summary Judgment, 528 MOTION for Partial Summary Judgment Memorandum of Law in Opposition to Objector−Intervenors Motion for Partial Summary Judgment and in Support of Caldero Intervenors' Motion for Partial Summary Judgment, 529 MOTION for Partial Summary Judgment Rule 56.1 Statement of Undisputed Facts, 531 MOTION for Partial Summary Judgment Declaration of Jean Phillips, 530 MOTION for Partial Summary Judgment Declaration of Joyce Jacobsen, 533 MOTION for Partial Summary Judgment , in Opposition to the Brennan Intervenors' Motion for Partial Summary Judgment, and in Response to this Court's Order of July 20, 2004 and Reply to Response of United States to Brennan Intervenors' Objections filed by all defendants. (Attachments: # 1 Declaration of Service)(Cote, Norma) (Entered: 05/24/2005)
553 REPLY to Response to Motion re 470 MOTION to Enforce Judgment, 471 Notice of MOTION to Enforce Judgment filed by all defendants. (Attachments: # 1)(Cote, Norma) (Entered: 05/26/2005)
554 RESPONSE in Opposition re 470 MOTION to Enforce Judgment, 471 Notice of MOTION to Enforce Judgment −− cover letter and opposing papers −− filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Memorandum of Law# 2 Affidavit Rosman Statement# 3 Exhibit Exhibits To Rosman Statement)(Rosman, Michael) (Entered: 05/27/2005)
555 RESPONSE in Support re 470 MOTION to Enforce Judgment and Paragraph 9 of Settlement Agreement filed by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 05/27/2005)
556 AFFIDAVIT in Support re 470 MOTION to Enforce Judgment and Paragraph 9 of Settlement Agreement filed by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 05/31/2005)
557 RESPONSE in Opposition re 548 MOTION to Strike Declaration of Norma Cote filed by all defendants. (Attachments: # 1 Affidavit Declaration of Service)(Cote, Norma) (Entered: 06/09/2005)
558 Letter dated June 14, 2005 from Norma A. Cote, Esq. to Clerk of Court Regarding withdrawal from civil actions 96−374 and 02−256 and replacement by Lawrence J. Profeta, Esq. (Lee, Tiffeny) (Entered: 06/16/2005)
559 RESPONSE in Opposition re 544 MOTION to Strike : Letter In Opposition To Defendants' Request To File Opposition Papers Six Weeks Late filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Rosman, Michael) (Entered: 06/24/2005)

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07/18/2005 07/21/2005 07/22/2005 07/25/2005 08/16/2005 08/16/2005 08/16/2005 08/24/2005 09/02/2005 09/02/2005 09/12/2005
09/14/2005 09/19/2005 09/20/2005 09/20/2005

560 Letter from Michael Rosman to The Honorable Frederic Block Regarding Defendants' Request To Move For A Protective Order and/or Preliminary Injunction. (Rosman, Michael) (Entered: 07/18/2005)
561 Letter from Lawrence J. Profeta to Honorable Frederic Block Regarding response to Intervenors' July 18, 2005 letter (all re defendant's request for pre−motion conference). (Profeta, Lawrence) (Entered: 07/21/2005)
562 Letter from Charles Leggott to Honorable Frederic Block Regarding U.S. Response to NYBOE 7/14/05 letter requesting pre−motion conference. (Leggott, Charles) (Entered: 07/22/2005)
563 Letter from Arroyo Intervenors and Caldero Intervenors Regarding Defendants' Request for a Pre−Motion Conference. (Colangelo, Matthew) (Entered: 07/25/2005)
564 Letter dated 7/14/05 from Lawrence Profeta,Esq. to Judge Block, requesting that the Court schedule a pre−motion conference. (Williams−Jackson, Sandy) (Entered: 08/16/2005)
565 NOTICE by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw Notice of Recent Authority (Attachments: # 1 Exhibit)(Colangelo, Matthew) (Entered: 08/16/2005)
566 MEMORANDUM AND ORDER: New York City Board of Education's motion for a protective order or injunctive relief is denied, see order. Ordered by Judge Frederic Block on August 15, 2005. c/m−chambers(Lee, Tiffeny) (Entered: 08/16/2005)
567 Letter from Michael Shumsky to Judge Frederic Block Regarding additional authority. (Attachments: # 1 # 2 # 3 # 4 # 5)(Rosman, Michael) (Entered: 08/24/2005)
568 Letter from American Civil Liberties Union to Honorable Frederic Block Regarding the Caldero Intervenors' request that the Court disregard the Brennan Intervenors Letter (Doc. No. 567) and its attachments as untimely. (Chernofsky, Melissa) (Entered: 09/02/2005)
569 Letter dtd 8/30/05 from Matthew Colangelo,Esq. to Judge Block, requesting that this Court disregard the Brennan Intervenors' letter and all attachments. (Williams−Jackson, Sandy) (Entered: 09/02/2005)
ELECTRONIC NOTICE of ORAL ARGUMENT: The Court is scheduling oral argument on all the pending motions in this case for Thursday, September 22, 2005 at 2:00 PM. There will not be a formal notice mailed to counsel due to the short notice.Upon receipt of this email counsel shall confirm with each other the date and time of this oral argument. Counsel should notify the Court no less then 48 hours in advance of the oral argument if it presents any conflicts. (Innelli, Michael) (Entered: 09/12/2005)
570 Letter from Lawrence J. Profeta to Judge Frederic Block Regarding response to August 24, 2005 letter from new counsel for Brennan Intervenors. (Profeta, Lawrence) (Entered: 09/14/2005)
571 Letter from Emily J. Martin, ACLU Women's Rights Project to Judge Frederic Block Regarding ACLU's conflict with oral argument date set for Sept. 22, 2005. (Chernofsky, Melissa) (Entered: 09/19/2005)
572 Letter from ACLU Women's Rights Project and Hughes Hubbard &Reed LLP dated Sept. 20, 2005 to Judge Frederic Block Regarding the consent of all Parties that oral argument of the outstanding motions be rescheduled for October 6 or October 7, 2005.. (Chernofsky, Melissa) (Entered: 09/20/2005)
ELECTRONIC NOTICE of oral argument: The Court is re−scheduling oral argument in this case to Thursday, October 7, 2005 at 2:00 P.M. based on the letter from the ACLU Women's Rights Project noting that all the parties are available. Upon receipt of this email counsel shall confirm with each other the date and time of this oral argument. Counsel should notify the Court no less then 48 hours in

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09/21/2005
09/21/2005 09/21/2005 09/21/2005 09/21/2005 09/26/2005 10/04/2005 10/05/2005 10/06/2005 10/13/2005 10/18/2005 10/21/2005 02/22/2006 06/27/2006
07/17/2006 07/17/2006 07/17/2006

advance of the oral argument if it presents any conflicts.(Innelli, Michael) (Entered: 09/20/2005)
CORRECTED ELECTRONIC NOTICE of oral argument: The Court is re−scheduling oral argument in this case to Thursday, October 6, 2005 at 2:00 P.M. based on the letter from the ACLU Women's Rights Project noting that all the parties are available. Upon receipt of this email counsel shall confirm with each other the date and time of this oral argument. Counsel should notify the Court no less then 48 hours in advance of the oral argument if it presents any conflicts.(Innelli, Michael) (Entered: 09/21/2005)
573 Letter dated 8/24/05 from Michael D. Shumsky to Mr. Heinemann Regarding attached to letter Notice to Appear as Counsel for Pro Hac Vice. (Drayton, Lorraine) (Entered: 09/21/2005)
574 ORDER Granting the Motion of Michael David Shumsky to Appear as Counsel Pro Hac Vioce. Ordered by Judge Frederic Block on 9/12/05. (Drayton, Lorraine) (Entered: 09/21/2005)
575 Delcaration of Michael David Shumsky in Support of Motion to Admit him as Counsel Pro Hac Vice. (Drayton, Lorraine) (Entered: 09/21/2005)
576 NOTICE of Motion to Admit Michael David Shumsky as Counsel Pro Hac Vice. (Drayton, Lorraine) (Entered: 09/21/2005)
577 ORDER granting the 449 Motion to Amend.Ordered by JudgeFrederic Block, on 9/21/2005. Copies mailed by Chambers. (Barrett, C.) (Entered: 09/26/2005)
578 MOTION for Leave to Appear Pro Hac Vice for an Order Permitting Natalie C. Suhl to Practice Pro Hac Vice by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 10/04/2005)
579 NOTICE of Appearance by Norma Ann Cote on behalf of New York City Board of Education (Cote, Norma) (Entered: 10/05/2005)
580 Minute Entry for proceedings held before Frederic Block : Oral Argument held on 10/6/2005. Oral argument as to pending motions. Decision reserved. (Williams−Jackson, Sandy) (Entered: 10/12/2005)
581 TRANSCRIPT of Oral Argument held on 10/6/2005 before Judge Block. Court Reporter: Sheldon Silverman. (Barrett, C.) (Entered: 10/13/2005)
582 Letter from United States to Honorable Frederic Block Regarding Cases regarding selection devices. (Leggott, Charles) (Entered: 10/18/2005)
583 ORDER granting 578 Motion for Leave to Appear Pro Hac Vice, Natalie C. Suhl for Janet A. Caldero. Ordered by JudgeFrederic Block on 10/05/2005. (Lee, Tiffeny) (Entered: 10/21/2005)
584 AMENDED COMPLAINT In Intervention (Third) against all parties, filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1)(Rosman, Michael) (Entered: 02/22/2006)
585 ORDER INVITING FURTHER SUBMISSIONS: parties' letter briefs shall not exceed five (5) pages in length and shall be submitted to the Court by 7/17/2006. Ordered by Judge Frederic Block, on 6/23/2006. Copies mailed by Chambers.(Barrett, C.) (Entered: 06/27/2006)
586 Letter 7/17/2006 Letter from the United States regarding Settlement Negotiations by United States of America. (Leggott, Charles) (Entered: 07/17/2006)
587 Letter In Response to 6/23/06 Order Inviting Further Submissions by Janet A. Caldero. (Martin, Emily) (Entered: 07/17/2006)
588 Letter In Response To Court's June 23, 2006 Order by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Exhibit)(Rosman, Michael) (Entered: 07/17/2006)

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07/17/2006 07/18/2006 07/31/2006 09/12/2006
09/15/2006 09/15/2006
09/19/2006 09/21/2006 09/22/2006
10/04/2006 10/06/2006 10/17/2006
10/18/2006 10/20/2006

589 Letter in Response to the Court's June 23, 2006, Order Inviting Further Submissions by Pedro Arroyo. (Colangelo, Matthew) (Entered: 07/17/2006)
590 Letter Objecting to the Brennan Intervenors' Use of Inadmissible Evidence by Pedro Arroyo. (Colangelo, Matthew) (Entered: 07/18/2006)
591 Letter Responding To Arroyo Intervenors' Letter by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Rosman, Michael) (Entered: 07/31/2006)
592 MEMORANDUM AND ORDER: the board's motion to enter the Agreement as a consent judgment is denied. The Brennan parties' motion for class certification is granted to the extent that the court certifies a class comprising all custodial employees whose layoff−protection rights have been adversely affected by the grant of seniority benefits to the beneficiaries who are non−victims of discrimination. See attached document for discussion on the intervenors' motions for partial summary judgment. The parties shall appear before the Court on 10/11/2006 @ 5:00 p.m., to set a hearing date. Ordered by Judge Frederic Block, on 9/11/2006. Copies mailed by Chambers. (CNB, ) (Entered: 09/12/2006)
593 Letter Requesting Rescheduling of 10/11/2006 Court Conference by Janet A. Caldero. (Martin, Emily) (Entered: 09/15/2006)
ELECTRONIC NOTICE: Emily Martin of the ACLU's letter application dated 9/15/06, without the consent of all the other parties, requesting that the October 11, 2006 status conference be adjourned is DENIED at this time. Counsel can re−submit the application after obtaining the consent from all the parties in this case. The Court will then consider the application. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other this notice.(Innelli, Michael) (Entered: 09/15/2006)
594 ERRATUM re 592 Order on Motion for Partial Summary Judgment, correcting sentence on page seven (7). Ordered by Judge Frederic Block on 9/12/2006. (Lee, Tiffeny) (Entered: 09/19/2006)
595 Letter Consent Letter Regarding Scheduling Of Court Conference by Janet A. Caldero. (Martin, Emily) (Entered: 09/21/2006)
ELECTRONIC NOTICE: Defendant ACLU's letter application dated 9/20/06, with the consent of all the parties is GRANTED, and the status conference scheduled for October 11, 2006 is adjourned to October 24, 2006 at 11:30 A.M. If counsel can agree as to the stipulate facts the Court still wishes to have the conference, however if the parties stipulate to the facts out of town counsel may participate by telephone. A stipulation as to the facts if agreed, shall be filed and served by October 23, 2006. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the new date and time of this conference.(Innelli, Michael) (Entered: 09/22/2006)
596 Letter dated 9/28/06 from Emily Martin to Counsel of record the enclosed 7 page Memo of Law in Support(not enclosed). (Gonzalez, Mary) (Entered: 10/04/2006)
597 NOTICE by United States of America of Substitution of Counsel (Embrey, Diana) (Entered: 10/06/2006)
598 MOTION for Reconsideration re 592 Order on Motion for Partial Summary Judgment,,, Order on Motion to Enforce Judgment,, by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Supporting Memo of Law# 2 Opposition Memo of Law# 3 Opposition Memo Of Law# 4 Opposition Memo of Law# 5 Reply Memo)(Rosman, Michael) (Entered: 10/17/2006)
599 RESPONSE in Opposition re 598 MOTION for Reconsideration re 592 Order on Motion for Partial Summary Judgment,,, Order on Motion to Enforce Judgment,, Supplemental Opposition filed by Pedro Arroyo. (Colangelo, Matthew) (Entered: 10/18/2006)
600 MOTION for Reconsideration re 592 Order on Motion for Partial Summary Judgment,,, Order on Motion to Enforce Judgment,, by Janet A. Caldero. (Martin, Emily) (Entered: 10/20/2006)

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10/20/2006 10/20/2006
10/24/2006 10/24/2006 10/31/2006 10/31/2006 11/06/2006
11/08/2006 11/09/2006 11/14/2006 11/21/2006 11/27/2006 11/29/2006

601 MEMORANDUM in Support re 600 MOTION for Reconsideration re 592 Order on Motion for Partial Summary Judgment,,, Order on Motion to Enforce Judgment,, by Janet A. Caldero. (Martin, Emily) (Entered: 10/20/2006)
602 MOTION for Reconsideration re 592 Order on Motion for Partial Summary Judgment,,, Order on Motion to Enforce Judgment,, by Janet A. Caldero. (Attachments: # 1 The Caldero Intervenors' Memorandum Of Law In Support of Their Motion For Reconsideration and Clarification# 2 The United States' Memorandum In Response To The Caldero Intervenors' Motion For Reconsideration And Clarification# 3 The Brennan Intervenors' Memorandum Of Law In Opposition To The Caldero Intervenors' Motion To Reconsider And For Clarification# 4 Arroyo Intervenors' Reply Memorandum Of Law Regarding The Caldero Intervenors' Motion For Reconsideration# 5 Memorandum In Reply To The United States' And Brennan Intervenors' Responses To The Caldero Intervenors' Motion For Reconsideration and Clarification)(Martin, Emily) (Entered: 10/20/2006)
603 ORDER granting pro hac vice admission to Attorney Araceli Martinez−Olguin appearing for Janet A. Caldero. Ordered by Judge Robert M. Levy on 10/23/2006. (Lee, Tiffeny) (Entered: 10/30/2006)
609 Minute Entry for proceedings held before Frederic Block: Status Conference held on 10/24/2006. Motions for reconsideration of the Court's most recent decision discussed, decision reserved. See document for further detail. (not reported) (Lee, Tiffeny) (Entered: 11/16/2006)
604 NOTICE of Appearance by Araceli Martinez−Olguin on behalf of Janet A. Caldero (Martinez−Olguin, Araceli) (Entered: 10/31/2006)
605 Letter Summarizing Procedures For Resolution Of Matter Reached During 10/24/2006 Court Conference by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Rosman, Michael) (Entered: 10/31/2006)
ELECTRONIC NOTICE The Court is scheduling a hearing with the consent of all counsel for November 21, 2006 at 11:00 A.M. to address the concerns raised at the conference held on October 24, 2006. Should counsel determine that a hearing will not be needed, they should notify the Court promptly. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the date and time of this hearing.(Innelli, Michael) (Entered: 11/06/2006)
606 ORDER granting application for an extension of time to file brief to 11/11/10/2006. Ordered by Judge Frederic Block on 11/6/2006. (Lee, Tiffeny) (Entered: 11/08/2006)
607 MEMORANDUM in Support Caldero Intervenors' Submission Addressing Individual Recruitment Discrimination Hearings by Janet A. Caldero. (Martin, Emily) (Entered: 11/09/2006)
608 NOTICE by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn Re Submissions On Categorization of Beneficiaries From All Parties (Attachments: # 1 U.S. Response# 2 Arroyo Response# 3 Caldero Response# 4 Brennan Reply)(Rosman, Michael) (Entered: 11/14/2006)
614 Minute Entry for proceedings held before Frederic Block: Hearing held on 11/21/2006. Witnesses sworn/testify. Exhibits entered into evidence. Decision reserved. Counsel to submit further letter submissions within two (2) weeks. (Court Reporter Anthony Mancuso) (Lee, Tiffeny) (Entered: 12/07/2006)
610 NOTICE by Janet A. Caldero re 608 Notice(Other), Notice(Other) Caldero Intervenors' Reply To United States' Response On The Categorization Of Beneficiaries (Attachments: # 1 The United States' Response To The Caldero Intervenors' Submission On The Categorization Of Beneficiaries)(Martin, Emily) (Entered: 11/27/2006)
ELECTRONIC ORDER: The Caldero Intervenors faxed letter application dated 11/22/06 is GRANTED. They may serve and file a reply to the Brennan Intervenors opposition to their 11/9/06 submission. There will be no formal order

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12/05/2006 12/05/2006
12/05/2006 12/11/2006 12/14/2006 12/20/2006 12/28/2006 01/03/2007 01/25/2007 03/12/2007 03/29/2007
04/25/2007

mailed to counsel. Upon receipt of this email counsel shall confirm with each other of this order. Ordered by Judge Frederic Block on 11/29/07. (Innelli, Michael) (Entered: 11/29/2006)
611 Letter Arroyo Intervenors' Post−Hearing Submission Regarding Disparate Impact of Exam 8206 on Hispanics by Pedro Arroyo. (Colangelo, Matthew) (Entered: 12/05/2006)
612 Letter Memorandum (1) Addressing Issues Related To November 21, 2006 Evidentiary Hearing On Disparate Impact of Exam 8206 and (2) Responding To Caldero Intervenors' Submission Regarding The Need For Additional Evidentiary Hearings To Show That They Were Victims Of Recruitment Discrimination by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Exhibit US Reqs To Admit# 2 Exhibit Dfs' Resp. To US Reqs To Admit)(Rosman, Michael) (Entered: 12/05/2006)
613 Letter Submission Post−Hearing re Disparate Impact of Exam 8206 by United States of America. (Attachments: # 1 Exhibit Uniform Guidelines On Employee Selection Procedures)(Tamburo, Esther) (Entered: 12/05/2006)
615 Letter dated 11/22/06 from Araceli Martinez−Olguin to Judge Block re: requesting leave to submit a brief reply to the Brennan Intervenors' response. (Drayton, Lorraine) (Entered: 12/11/2006)
616 Letter Response to Brennan Intervenor Letter Submission re Exam 8206 by United States of America. (Attachments: # 1 Affidavit Declaration of Bernard Siskin, Ph D.)(Tamburo, Esther) (Entered: 12/14/2006)
617 REPLY in Support re 607 Memorandum in Support of Individual Recruitment Hearings by Janet A. Caldero. (Martin, Emily) (Entered: 12/20/2006)
618 MOTION to Consolidate Cases by Ruben Miranda. (Attachments: # 1 Moving Memorandum# 2 Arroyo Intervenors' Opposition Memo# 3 Caldero Intervenors' Opposition Memo# 4 Reply Memorandum)(Rosman, Michael) (Entered: 12/28/2006)
619 NOTICE by United States of America of Withdrawal of Appearance of Counsel (Tamburo, Esther) (Entered: 01/03/2007)
620 MOTION to Strike by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Supporting Memorandum# 2 Opposing Memorandum of United States# 3 Reply Memorandum) (Rosman, Michael) (Entered: 01/25/2007)
621 Letter Letter to update the Court regarding stipulation among the parties by Pedro Arroyo (Colangelo, Matthew) (Entered: 03/12/2007)
Motions terminated: SEE ENTRY 598. 602 MOTION for Reconsideration re 592 Order on Motion for Partial Summary Judgment,,, Order on Motion to Enforce Judgment,, filed by Janet A. Caldero, 600 MOTION for Reconsideration re 592 Order on Motion for Partial Summary Judgment,,, Order on Motion to Enforce Judgment,, filed by Janet A. Caldero. (Innelli, Michael) (Entered: 03/29/2007)
622 MEMORANDUM &ORDER: The Court finds that the United States established a strong basis in evidence that the 8206 Exam had a disparate impact on Hispanics; therefore, to the extent the Agreement made awards based on the exam, except for purposes of layoffs, it comports with the Fourteenth Amendment and, a fortiori, Title VII. The Court clarifies that the holdings of the September 11th MOapply to both retroactive seniority and seniority based on permanent appointment. For purposes of injunctive and declaratory relief, the Court certifies a class comprising all custodial employees whose seniority for purposes of transfers, TCAs and layoff protection has been adversely affected by the grant seniority benefits to the Offerees. An evidentiary hearing is required to determine (a) whether the Board and the United States intended to categorize Offerees as testing−claim and recruiting−claim beneficiaries and, if so, (b) which Offerees fall into each category. Ordered by JudgeFrederic Block on 4/20/2007. (c/m−chambers) (Lee, Tiffeny) (Entered: 04/25/2007)

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04/25/2007
05/15/2007 05/18/2007 06/05/2007
06/21/2007
07/03/2007 07/12/2007 07/16/2007 07/16/2007 07/17/2007
07/18/2007 07/18/2007 07/18/2007 07/23/2007

ELECTRONIC NOTICE: A hearing is schedule for August 22, 2007 @ 11AM to address the issues in the Court's Memorandum &Order dated April 20, 2007 622 . There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the date and time of this hearing. (Innelli, Michael) (Entered: 04/25/2007)
623 Letter to the Court by Pedro Arroyo (Colangelo, Matthew) (Entered: 05/15/2007)
624 NOTICE by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn re 344 Notice (Other) : Request For Ruling On Previously−Filed Rule 72 Objections (Rosman, Michael) (Entered: 05/18/2007)
ELECTRONIC NOTICE: The civil hearing scheduled for August 22, 2007 is being advanced by the Court to August 20, 2007 @ 11AM due to a scheduled criminal trial. There will not be a formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the new date and time of this hearing. If this date presents a conflict counsel shall first obtain the consent from all the parties to adjourn this hearing, and then notify the Court. (Innelli, Michael) (Entered: 06/05/2007)
625 NOTICE by Janet A. Caldero Submission Addressing The Court−Ordered Evidentiary Hearing And Necessary Discovery (Attachments: # 1 Exhibit A: May 2, 2003, Notice of Deposition# 2 Exhibit B: September 2, 2003, Defendants' Response To Objector−Intervenors' Contention Interrogatories To Defendants# 3 Exhibit C: February 3, 2003, Transcript of Civil Cause For Status Conference# 4 Exhibit D: May 27, 1999, Transcript of Hearing# 5 Exhibit E: September 2, 2003, United States' Response To Intervenor−Objectors' Contention Interrogatories To The United States) (Martin, Emily) (Entered: 06/21/2007)
626 NOTICE by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn re 625 Notice(Other), Notice(Other), Notice(Other) : Response To Caldero Intervenors' Submission Re Upcoming Evidentiary Hearing (Rosman, Michael) (Entered: 07/03/2007)
627 NOTICE by Janet A. Caldero re 626 Notice(Other) Reply To The Brennan Intervenors' Response Addressing The Evidentiary Hearing (Martin, Emily) (Entered: 07/12/2007)
628 NOTICE of Appearance by Esther Gwen Tamburo on behalf of United States of America (notification declined) (Tamburo, Esther) (Entered: 07/16/2007)
629 NOTICE by United States of America of Appearance of Michael J. Alexis (Tamburo, Esther) (Entered: 07/16/2007)
Incorrect Document/Entry Information regarding 629 Notice. A notice of appearance must be filed using appearing counsel's log in and password issued by the Eastern District of New York for CM/ECF. Failure to use appearing counsel's log in information along with the event Notice of Appearance results in counsel not appearing on the docket as well as counsel not receiving email notifications. (Lee, Tiffeny) (Entered: 07/17/2007)
630 NOTICE of Appearance by Michael J. Alexis on behalf of United States of America (aty to be noticed) (Alexis, Michael) (Entered: 07/18/2007)
631 NOTICE by United States of America of Renewed Request for Evidentiary Hearing on Actual Victim Status and Position Regarding an Evidentiary Hearing as to the Intent of the Parties with Respect to the Categorization of Beneficiaries of the 1999 Agreement (Tamburo, Esther) (Entered: 07/18/2007)
632 NOTICE by United States of America re 631 Notice(Other), Notice(Other) Filing of Correction Page (Attachments: # 1 Exhibit Corrected Page 5) (Tamburo, Esther) (Entered: 07/18/2007)
ELECTROIC ORDER: The parties are ordered to engage in discovery limited to the focused issue of whether, in developing the list of Offerees, the United States and the Board intended to categorize Offerees based on whether each Offeree had taken a challenged exam. Because this litigation has already been protracted over more than 10 years, there will be no adjournment of the August 20, 2007 hearing.

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07/27/2007 07/30/2007 08/06/2007
08/06/2007
08/07/2007
08/07/2007 08/07/2007 08/07/2007
08/08/2007
08/08/2007 08/10/2007 08/15/2007 08/20/2007 08/30/2007

The parties are expected to engage in discovery expeditiously and in good faith. See Fed. R. Civ. P. 37. Ordered by Judge Frederic Block on 7/23/07. (Innelli, Michael) (Entered: 07/23/2007)
633 Letter by Janet A. Caldero (Martin, Emily) (Entered: 07/27/2007)
634 NOTICE by Janet A. Caldero Substitution of Counsel (Chernofsky, Melissa) (Entered: 07/30/2007)
ELECTRONIC NOTICE: Pursuant to Caldero Intervenors letter application dated 7/27/07 the Court is scheduling a telephone conference for August 7, 2007 @ 5pm. The Caldero Intervenors are required to contact all counsel by telephone and then contact the Court for this telephone conference. There will be no formal notice mailed to counsel. (Innelli, Michael) (Entered: 08/06/2007)
635 Letter Informing Court of Discovery Dispute Prior to Status Conference by Janet A. Caldero (Attachments: # 1 Caldero Intervenors' Interrogatories to United States# 2 Caldero Intervenors' Document Request to the United States# 3 United States' Objections to Interrogatories# 4 United States' Objections to Document Requests) (Chernofsky, Melissa) (Entered: 08/06/2007)
AMENDED ELECTRONIC NOTICE: Pursuant to Caldero Intervenors letter application dated 7/27/07 the Court is scheduling a telephone conference for August 8, 2007 @ 5pm,, instead of today, August 7, 2007. The Caldero Intervenors are required to contact all counsel by telephone and then contact the Court for this telephone conference. There will be no formal notice mailed to counsel. (Innelli, Michael) (Entered: 08/07/2007)
636 NOTICE of Change of attached email addresses by Michael Evan Rosman (Rosman, Michael) (Entered: 08/07/2007)
ELECTRONIC NOTICE: The telephone conference schedule for August 8, 2007 will take place at 3:00pm instead of 5:00pm. (Innelli, Michael) (Entered: 08/07/2007)
ELECTRONIC NOTICE: The Caldero Intervenor's phone call application on 8/7/07, with the consent of all the parties is GRANTED. The telephone conference scheduled for August 8, 2007 is adjourned to August 9, 2007 at 3:00 P.M. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the new date and time of this telephone conference. (Innelli, Michael) (Entered: 08/07/2007)
ELECTRONIC NOTICE: The Caldero Intervenor's phone call application on 8/8/07, with the consent of all the parties is GRANTED. The telephone conference scheduled for August 9, 2007 is adjourned to August 10, 2007 at 3:30 P.M. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the new date and time of this telephone conference. (Innelli, Michael) (Entered: 08/08/2007)
637 Letter Responding to Caldero Intervenor Letter Informing Court of Discovery Dispute by United States of America (Tamburo, Esther) (Entered: 08/08/2007)
638 Minute Entry for proceedings held before Hon. Frederic Block: Status Conference held on 8/10/2007. Case called. All counsel present by telephone. Rulings and clarifications as to the Court's Discovery Order. (Not Reported) (Abdallah, Fida) (Entered: 08/14/2007)
639 Letter to the Court re Testimony of Jodi Danis by United States of America (Tamburo, Esther) (Entered: 08/15/2007)
640 Minute Entry for proceedings held before Frederic Block: Evidentiary Hearing held on 8/20/2007. Witnesses sworn. Exhibits offered and entered into evidence. Decision reserved. Further briefs due 9/14/2007. (Court Reporter Victoria Torres−Butler) (Lee, Tiffeny) (Entered: 08/22/2007)
641 MEMORANDUM &ORDER: Plaintiff's 618 Motion to Consolidate Cases is granted. Ordered by Judge Frederic Block on 8/24/2007. (c/m−chambers) (Lee, Tiffeny) (Entered: 08/30/2007)

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08/30/2007 08/30/2007
08/31/2007 09/14/2007 09/14/2007 09/14/2007 09/14/2007 09/14/2007 09/17/2007 12/18/2007
01/04/2008 01/11/2008 01/11/2008 01/11/2008

Case Consolidated. (Lee, Tiffeny) (Entered: 08/30/2007)
642 CONSOLIDATION ORDER: It is ordered that case number CV−06−2921 be consolidated into lead case number CV−96−374 as related actions. It is ordered that case number CV−2921 be administratively closed and all further entries be made on the lead case, docket number CV−96−374. Ordered by Judge Frederic Block on August 29, 2007. (c/m−chambers) Associated Cases: 1:96−cv−00374−FB, 1:06−cv−02921−FB−RML (Lee, Tiffeny) (Entered: 08/30/2007)
643 Letter Regarding Undisputed Facts To Determine "Actual Victim" Status by United States of America (Attachments: # 1 Exhibit Tentative Draft Proposed Order) (Tamburo, Esther) (Entered: 08/31/2007)
644 Letter w/Defendant's Memo of Law in Opposition to the Objections of the Brennan Intervenors to Para. 13−16 of the Settlement agreement by New York City Board of Education (Profeta, Lawrence) (Entered: 09/14/2007)
645 Letter Post−Hearing Submission by United States of America (Tamburo, Esther) (Entered: 09/14/2007)
646 Letter Post−Trial Letter to Court by Dennis Mortensen, Scott Spring, Ruben Miranda, John Brennan, James G. Ahearn (Rosman, Michael) (Entered: 09/14/2007)
647 Letter Post−Trial Letter Brief by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw (Colangelo, Matthew) (Entered: 09/14/2007)
648 Letter Post−Hearing Submission by Janet A. Caldero (Attachments: # 1 Exhibit Excerpts from Transcript of August 20, 2007 Hearing) (Chernofsky, Melissa) (Entered: 09/14/2007)
649 Letter Exhibit B to Post−Hearing Submission, Redacted Excerpt of Eligibility List by Janet A. Caldero (Chernofsky, Melissa) (Entered: 09/17/2007)
ELECTRONIC ORDER: Due to the volume of the record, counsel for the Brennan Intervenors shall, on or before January 4, 2008, file a letter memorandum setting forth the specific facts (accompanied by record citations) supporting their contention that the following individuals are not actual victims of testing discrimination or otherwise received more than make whole relief under the Settlement Agreement: Cordero, RicardoFields, ThomasJohnson, RonaldLambert, CarlaMarshall, VernonPagan, AngelPantelides, AnthonyRivera, SeanTorres, LuisThe other parties may file responses to the Brennan Intervenors submission on or before January 11, 2008. Ordered by Senior Judge Frederic Block on 12/18/07. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Innelli, Michael) (Entered: 12/18/2007)
650 Letter Responding To Court's December 18, 2007 Order by Dennis Mortensen, Scott Spring, Ruben Miranda, John Brennan, James G. Ahearn (Rosman, Michael) (Entered: 01/04/2008)
651 Letter Responding to the Brennan Intervenors' Submission of Jan. 4, 2008 by Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Silvia Ortega de Green, Nicholas Pantelides, Wilbert McGraw (Colangelo, Matthew) (Entered: 01/11/2008)
652 Letter Responding to Brennan Intervenors' Submission on Jan 4, 2008 by Janet A. Caldero, Janet A. Caldero Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Martinez−Olguin, Araceli) (Entered: 01/11/2008)
653 Letter Responding to Brennan Intervenors' Letter In Response to Court's 12/18/2007 Order by United States of America Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Tamburo, Esther) (Entered: 01/11/2008)

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05/08/2008 05/13/2008
05/15/2008 05/23/2008 05/28/2008
05/30/2008 05/30/2008 06/13/2008 07/03/2008
07/09/2008 07/25/2008
07/29/2008

654 Letter Requesting Pre−Motion Conference by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn (Rosman, Michael) (Entered: 05/08/2008)
655 MEMORANDUM AND ORDER: The Court approves the proposed notice and sets 5/23/2008 as the date by which objections must be postmarked. On or before 5/16/2008, the Board shall service the notice on class members by e−mail, and shall immediately thereafter file a certificate attesting that such service has been completed. In addition, the Court will post the notice and the proposed order on its website. After the deadline for objections passes, the Court will review any objections received and determine whether to hold a hearing. Ordered by Senior Judge Frederic Block on May 12, 2008. (c/m) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML (Lee, Tiffeny) (Entered: 05/13/2008)
656 CERTIFICATE OF SERVICE by New York City Board of Education, Department of Citywide Administrative Services, William J. Diamond re 655 Memorandum &Opinion,, regarding email service of Notice to Class (Profeta, Lawrence) (Entered: 05/15/2008)
657 NOTICE of Change of email addresses to which notice should be sent by Michael Evan Rosman Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Rosman, Michael) (Entered: 05/23/2008)
ELECTRONIC NOTICE: Since the Court has recieved no objections from any class members as to counsels stipulation adjusting retroactive seniority dates the fairness hearing scheduled for May 23, 2008 @ 4PM is canceled. Upon receipt of this email counsel shall confirm with each other that the fairness hearing is canceled. There will be no formal notice mailed to counsel. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Innelli, Michael) (Entered: 05/28/2008)
658 ORDER regarding determining the order of layoffs. Ordered by Senior Judge Frederic Block on 5/28/2008. (Lagana, Michael) (Entered: 05/30/2008)
659 MEMORANDUM AND ORDER. Ordered by Senior Judge Frederic Block on 5/28/2008. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML (Lagana, Michael) (Entered: 05/30/2008)
660 MOTION for Reconsideration re 659 Memorandum &Opinion Request for Clarification by Janet A. Caldero. (Chernofsky, Melissa) (Entered: 06/13/2008)
661 RESPONSE to Motion re (660 in 1:96−cv−00374−FB) MOTION for Reconsideration re (659) Memorandum &Opinion Request for Clarification filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn, Ruben Miranda, John Mitchell, Eric Schauer. (Attachments: # 1 cover letter) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Rosman, Michael) (Entered: 07/03/2008)
662 REPLY to Response to Motion re (660 in 1:96−cv−00374−FB) MOTION for Reconsideration re (659) Memorandum &Opinion Request for Clarification filed by Janet A. Caldero, Janet A. Caldero. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Martinez−Olguin, Araceli) (Entered: 07/09/2008)
663 SCHEDULING ORDER: The Court is scheduling oral argument on July 29, 2008 at 3:00 P.M. as to the Caldero plaintiff−intervenors motion 660 for reconsideration and clarification. There will be no formal notice mailed to counsel. Upon receipt of this email counsel shall confirm with each other the date and time of this oral argument. Counsel should notify the Court no less then 48 hours in advance of the oral argument if it presents any conflicts. Ordered by Senior Judge Frederic Block on 7/25/08. (Innelli, Michael) (Entered: 07/25/2008)
Minute Entry for proceedings held before Senior Judge Frederic Block: Michael Rosman, Esq. for the plaintiffs; Michael Alexis, Esq. &Esta Tamboro, Esq. for the Department of Justice; Lawrence Profeta, Esq. for New York City; Emily Martin, Esq. &Melissa Chernofsky, Esq. for Caldero Plaintiff Intervenor's; Matthew Colangelo, Esq. for Arroyo Plaintiff Intervenor's. All counsel present by telephone. Motion Hearing held on 7/29/2008 as to Plaintiff−Caldero Intervenor's motion 660

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 59 of 65

08/19/2008
08/22/2008
09/05/2008 09/26/2008 10/03/2008 10/20/2008 10/21/2008 10/21/2008

for reconsideration/ clarification of the Court's M0dated May 28, 2008 argued. The Court will issue a written decision. Counsel will submit a stipulation extending their time to file a motion for counsel fees until after the appeal is decided. The Court will direct the clerk to enter judgment as to this action and the two related actions ( CV−02−256(FB) &CV−06−2921(FB) so counsel can then file an appeal. (Court Reporter Marie Foley−(718) 613−2596) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Innelli, Michael) Modified on 7/29/2008 (Innelli, Michael). (Entered: 07/29/2008)
664 MEMORANDUM AND ORDER, Accordingly, the court clarifies that the schedules appended to its May 28 MOrefer only to retroactive seniority, and that all individuals on those schedules are regardless of whether they are entitled to retain any retroactive seniority for layoff−protection purposes − entitled to retain for all purposes the seniority flowing from their permanent appointments. (Ordered by Senior Judge Frederic Block on 8/18/08) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML (Piper, Francine) (Entered: 08/19/2008)
665 CLERK'S JUDGMENT that the Court makes the following declarations in Case No. 96−CV−374 regarding paragraphs 13−16 of the Settlement Agreement between the United States and the New York City Board of Education − See document for declarations. All parties have agreed that the foregoing declarations are to apply in Case Nos. 02−CV−256 and 06−CV−2921. Ordered by Robert C. Heinemann, Clerk of Court by Michael Innelli, Deputy Clerk on 8/18/2008. (Attachments: # 1 Schedules A−B) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Lee, Tiffeny) (Entered: 08/26/2008)
666 NOTICE of Change of Firm by Melissa R. Chernofsky Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 09/05/2008)
667 Letter to all counsel re motion to correct record by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn (Rosman, Michael) (Entered: 09/26/2008)
668 MOTION to Amend/Correct/Supplement The Record Pursuant To Fed. R. Civ. P. 60(a) by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Attachments: # 1 Exhibit Exhibit to Motion, # 2 Memorandum in Support) (Rosman, Michael) (Entered: 10/03/2008)
669 NOTICE OF APPEAL as to (665 in 1:96−cv−00374−FB) Clerk's Judgment,, by Dennis Mortensen, Scott Spring, John Brennan, James Ahearn. Filing fee $ 455, receipt number 02070000000003196526. (Rosman, Michael) (Entered: 10/20/2008)
670 NOTICE OF APPEAL as to 665 Clerk's Judgment,, by United States of America. Appeal Record due by 11/10/2008. (Tamburo, Esther) (Entered: 10/21/2008)
Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 601 Memorandum in Support, 660 Motion for Reconsideration, 540 Affidavit, 654 Letter, 611 Letter, 625 Notice(Other), Notice(Other), Notice(Other), 451 Notice (Other), 570 Letter, 483 Reply to Response to Motion,, 566 Memorandum &Opinion, 494 Response in Opposition to Motion, 565 Notice (Other), Notice (Other), 534 Reply to Response to Motion,, 507 Response in Opposition to Motion, 578 Motion for Leave to Appear Pro Hac Vice, 548 Motion to Strike, 634 Notice(Other), 558 Letter, 655 Memorandum &Opinion,, 609 Status Conference, 450 Motion to Compel, 539 Response to Motion,, 498 Response in Opposition to Motion, 464 Letter, 633 Letter, 663 Scheduling Order,, 513 Response in Opposition to Motion, 533 Motion for Partial Summary Judgment,, 392 Scheduling Order, 469 Letter, 562 Letter, 499 Response in Opposition to Motion, 583 Order on Motion for Leave to Appear, 636 NOTICE of Change of Address/Firm/Email, 551 Reply to Response to Motion,,, 661 Response to Motion, 515 Response in Opposition to Motion, 466 Motion for Partial Summary Judgment,,,,, 642 Order, 461 Order, 629 Notice(Other), 524 Response in Opposition to Motion, 502 Response in Opposition to Motion, 606 Order, 519 Response in Opposition to Motion, 484 Response in Opposition to

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 60 of 65

10/22/2008

Motion, 577 Order on Motion to Amend/Correct/Supplement, 441 Order on Motion to Intervene, 587 Letter, 545 Affidavit in Support, 627 Notice(Other), 597 Notice(Other), 588 Letter, 598 Motion for Reconsideration, 612 Letter, 491 Response in Opposition to Motion, 613 Letter, 485 Response in Opposition to Motion, 670 Notice of Appeal, 615 Letter, 529 Motion for Partial Summary Judgment, 580 Status Conference, 632 Notice(Other), 610 Notice(Other), Notice(Other), 512 Response in Opposition to Motion, 471 Motion to Enforce Judgment, 639 Letter, 447 Letter, 572 Letter, 514 Response in Opposition to Motion, 649 Letter, 520 Response in Opposition to Motion, 582 Letter, 536 Affidavit, 490 Response in Opposition to Motion, 550 Response in Opposition to Motion, 440 Pre Motion Conference, 381 Notice (Other), Notice (Other), Notice (Other), Notice (Other), 656 Certificate of Service, 523 Response in Opposition to Motion, 531 Motion for Partial Summary Judgment, 530 Motion for Partial Summary Judgment, 593 Letter, 626 Notice(Other), 667 Letter, 557 Response in Opposition to Motion, 477 Memorandum &Opinion, 621 Letter, 659 Memorandum &Opinion, 478 Letter, 664 Order on Motion for Reconsideration,, 442 Stipulation, 599 Response in Opposition to Motion, 619 Notice(Other), 495 Response in Opposition to Motion, 652 Letter, 555 Response in Support of Motion, 607 Memorandum in Support, 624 Notice(Other), 638 Status Conference, 614 Docket Call, 504 Response in Opposition to Motion, 563 Letter, 506 Response in Opposition to Motion, 630 Notice of Appearance, 443 Order, 662 Reply to Response to Motion, 561 Letter, 526 Response in Opposition to Motion, 622 Order on Motion for Reconsideration, Order on Motion to Strike,,,,,,,, 669 Notice of Appeal, 651 Letter, 538 Notice (Other), Notice (Other), 455 Motion for Limited Admission, 564 Letter, 517 Response in Opposition to Motion, 605 Letter, 552 Reply to Response to Motion,,, 544 Motion to Strike, 487 Response in Opposition to Motion, 338 Memorandum &Opinion, 658 Order, 618 Motion to Consolidate Cases, 584 Amended Complaint, 559 Response in Opposition to Motion, 553 Reply to Response to Motion, 620 Motion to Strike, 568 Letter, 535 Reply to Response to Motion,, 657 NOTICE of Change of Address/Firm/Email, 470 Motion to Enforce Judgment, 496 Response in Opposition to Motion, 602 Motion for Reconsideration,,, 503 Response in Opposition to Motion, 650 Letter, 542 Response to Motion, 488 Response in Opposition to Motion, 590 Letter, 508 Response in Opposition to Motion, 518 Response in Opposition to Motion, 648 Letter, 653 Letter, 407 Notice (Other), 509 Response in Opposition to Motion, 640 Evidentiary Hearing, 489 Response in Opposition to Motion, 571 Letter, 521 Response in Opposition to Motion, 510 Response in Opposition to Motion, 537 Affidavit,,,,, 473 Letter, 666 NOTICE of Change of Address/Firm/Email, 600 Motion for Reconsideration, 527 Motion for Partial Summary Judgment, 623 Letter, 549 Response in Opposition to Motion, 511 Response in Opposition to Motion, 637 Letter, 547 Letter, 617 Reply in Support, 505 Response in Opposition to Motion, 595 Letter, 628 Notice of Appearance, 567 Letter, 501 Response in Opposition to Motion, 335 Stipulation and Order, 516 Response in Opposition to Motion, 646 Letter, 604 Notice of Appearance, 644 Letter, 554 Response in Opposition to Motion, 594 Order, 592 Order on Motion for Partial Summary Judgment, Order on Motion to Enforce Judgment,,,, 631 Notice(Other), Notice(Other), 500 Response in Opposition to Motion, 641 Order on Motion to Consolidate Cases, 449 Motion to Amend/Correct/Supplement, 467 Notice (Other), 616 Letter, 586 Letter, 492 Response in Opposition to Motion, 462 Order, 525 Response in Opposition to Motion, 635 Letter, 560 Letter, 532 Response in Opposition to Motion, 486 Response in Opposition to Motion, 585 Order, 522 Response in Opposition to Motion, 643 Letter, 665 Clerk's Judgment,, 645 Letter, 608 Notice(Other), Notice(Other), 603 Order, Add and Terminate Attorneys, 596 Letter, 543 Response to Motion, 493 Response in Opposition to Motion, 579 Notice of Appearance, 647 Letter, 497 Response in Opposition to Motion, 528 Motion for Partial Summary Judgment, 668 Motion to Amend/Correct/Supplement, 556 Affidavit in Support of Motion, 472 Order, (McGee, Mary Ann) (Entered: 10/21/2008)
671 NOTICE OF CROSS APPEAL New York City Board of Education, Department of Citywide Administrative Services, New York City Department of Education, New York City Board of Education, City of New York, New York City Department of Citywide Administrative Services, William J. Diamond. Filing fee $ 455. as to (120 in 1:02−cv−00256−FB−RML, 16 in 1:06−cv−02921−FB−RML) Clerk's Judgment,, (103 in 1:02−cv−00256−FB−RML) Memorandum &Opinion,, (114 in

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 61 of 65

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1:02−cv−00256−FB−RML) Order, (109 in 1:02−cv−00256−FB−RML) Memorandum &Opinion,,,, (119 in 1:02−cv−00256−FB−RML) Order on Motion for Reconsideration,, (115 in 1:02−cv−00256−FB−RML) Memorandum &Opinion. PLEASE NOTE: THIS NOA WILL ALSO BE SENT TO THE USCA IN HARD COPY because it is voluminous. NOA served ECF. Fee Paid Receipt # 358861. (Gonzalez, Mary) (Entered: 10/22/2008)
Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (601 in 1:96−cv−00374−FB) Memorandum in Support, (540 in 1:96−cv−00374−FB) Affidavit, (654 in 1:96−cv−00374−FB) Letter, (451 in 1:96−cv−00374−FB) Notice (Other), (102 in 1:02−cv−00256−FB−RML) Order on Motion for Leave to Appear, (483 in 1:96−cv−00374−FB) Reply to Response to Motion,, (120 in 1:02−cv−00256−FB−RML, 665 in 1:96−cv−00374−FB) Clerk's Judgment,, (566 in 1:96−cv−00374−FB) Memorandum &Opinion, (494 in 1:96−cv−00374−FB) Response in Opposition to Motion, (565 in 1:96−cv−00374−FB) Notice (Other), Notice (Other), (534 in 1:96−cv−00374−FB) Reply to Response to Motion,, (634 in 1:96−cv−00374−FB) Notice(Other), (558 in 1:96−cv−00374−FB) Letter, (450 in 1:96−cv−00374−FB) Motion to Compel, (498 in 1:96−cv−00374−FB) Response in Opposition to Motion, (513 in 1:96−cv−00374−FB) Response in Opposition to Motion, (533 in 1:96−cv−00374−FB) Motion for Partial Summary Judgment,, (562 in 1:96−cv−00374−FB) Letter, (499 in 1:96−cv−00374−FB) Response in Opposition to Motion, (583 in 1:96−cv−00374−FB) Order on Motion for Leave to Appear, (551 in 1:96−cv−00374−FB) Reply to Response to Motion,,, (661 in 1:96−cv−00374−FB, 116 in 1:02−cv−00256−FB−RML) Response to Motion, (466 in 1:96−cv−00374−FB) Motion for Partial Summary Judgment,,,,, (113 in 1:02−cv−00256−FB−RML) NOTICE of Change of Address/Firm/Email, (524 in 1:96−cv−00374−FB) Response in Opposition to Motion, (123 in 1:02−cv−00256−FB−RML) Notice of Appeal, (606 in 1:96−cv−00374−FB) Order, (484 in 1:96−cv−00374−FB) Response in Opposition to Motion, (577 in 1:96−cv−00374−FB) Order on Motion to Amend/Correct/Supplement, (441 in 1:96−cv−00374−FB) Order on Motion to Intervene, (587 in 1:96−cv−00374−FB) Letter, (545 in 1:96−cv−00374−FB) Affidavit in Support, (103 in 1:02−cv−00256−FB−RML) Memorandum &Opinion,, (597 in 1:96−cv−00374−FB) Notice(Other), (588 in 1:96−cv−00374−FB) Letter, (598 in 1:96−cv−00374−FB) Motion for Reconsideration, (612 in 1:96−cv−00374−FB) Letter, (375 in 1:96−cv−00374−FB) Order, (613 in 1:96−cv−00374−FB) Letter, (485 in 1:96−cv−00374−FB) Response in Opposition to Motion, (670 in 1:96−cv−00374−FB) Notice of Appeal, (632 in 1:96−cv−00374−FB) Notice(Other), (610 in 1:96−cv−00374−FB) Notice(Other), Notice(Other), (104 in 1:02−cv−00256−FB−RML) Order, (512 in 1:96−cv−00374−FB) Response in Opposition to Motion, (89 in 1:02−cv−00256−FB−RML) Notice (Other), (639 in 1:96−cv−00374−FB) Letter, (447 in 1:96−cv−00374−FB) Letter, (572 in 1:96−cv−00374−FB) Letter, (514 in 1:96−cv−00374−FB) Response in Opposition to Motion, (649 in 1:96−cv−00374−FB) Letter, (550 in 1:96−cv−00374−FB) Response in Opposition to Motion, (440 in 1:96−cv−00374−FB) Pre Motion Conference, (109 in 1:02−cv−00256−FB−RML) Memorandum &Opinion,,,, (381 in 1:96−cv−00374−FB) Notice (Other), Notice (Other), Notice (Other), Notice (Other), (656 in 1:96−cv−00374−FB) Certificate of Service, (557 in 1:96−cv−00374−FB) Response in Opposition to Motion, (115 in 1:02−cv−00256−FB−RML, 659 in 1:96−cv−00374−FB) Memorandum &Opinion, (65 in 1:02−cv−00256−FB−RML) Memorandum &Opinion, (90 in 1:02−cv−00256−FB−RML) Pre Motion Conference, (478 in 1:96−cv−00374−FB) Letter, (442 in 1:96−cv−00374−FB) Stipulation, (105 in 1:02−cv−00256−FB−RML) Letter, (555 in 1:96−cv−00374−FB) Response in Support of Motion, (638 in 1:96−cv−00374−FB) Status Conference, (2 in 1:02−cv−00256−FB−RML) Affidavit of Service, (563 in 1:96−cv−00374−FB) Letter, (506 in 1:96−cv−00374−FB) Response in Opposition to Motion, (561 in 1:96−cv−00374−FB) Letter, (651 in 1:96−cv−00374−FB) Letter, (455 in 1:96−cv−00374−FB) Motion for Limited Admission, (552 in 1:96−cv−00374−FB) Reply to Response to Motion,,, (544 in 1:96−cv−00374−FB) Motion to Strike, (487 in 1:96−cv−00374−FB) Response in Opposition to Motion, (107 in 1:02−cv−00256−FB−RML) Status Conference, (559 in 1:96−cv−00374−FB) Response in Opposition to Motion, (620 in 1:96−cv−00374−FB) Motion to Strike,

Case: 1:96-cv-374 As of: 09/10/2010 09:20 PM EDT 62 of 65
(568 in 1:96−cv−00374−FB) Letter, (117 in 1:02−cv−00256−FB−RML, 662 in 1:96−cv−00374−FB) Reply to Response to Motion, (470 in 1:96−cv−00374−FB) Motion to Enforce Judgment, (496 in 1:96−cv−00374−FB) Response in Opposition to Motion, (503 in 1:96−cv−00374−FB) Response in Opposition to Motion, (650 in 1:96−cv−00374−FB) Letter, (542 in 1:96−cv−00374−FB) Response to Motion, (72 in 1:02−cv−00256−FB−RML) Notice of Voluntary Dismissal, (508 in 1:96−cv−00374−FB) Response in Opposition to Motion, (518 in 1:96−cv−00374−FB) Response in Opposition to Motion, (653 in 1:96−cv−00374−FB, 111 in 1:02−cv−00256−FB−RML) Letter, (509 in 1:96−cv−00374−FB) Response in Opposition to Motion, (489 in 1:96−cv−00374−FB) Response in Opposition to Motion, (571 in 1:96−cv−00374−FB) Letter, (537 in 1:96−cv−00374−FB) Affidavit,,,,, (510 in 1:96−cv−00374−FB) Response in Opposition to Motion, (473 in 1:96−cv−00374−FB) Letter, (666 in 1:96−cv−00374−FB, 121 in 1:02−cv−00256−FB−RML) NOTICE of Change of Address/Firm/Email, (101 in 1:02−cv−00256−FB−RML) Order, (623 in 1:96−cv−00374−FB) Letter, (637 in 1:96−cv−00374−FB) Letter, (547 in 1:96−cv−00374−FB) Letter, (617 in 1:96−cv−00374−FB) Reply in Support, (501 in 1:96−cv−00374−FB) Response in Opposition to Motion, (335 in 1:96−cv−00374−FB) Stipulation and Order, (646 in 1:96−cv−00374−FB) Letter, (124 in 1:02−cv−00256−FB−RML, 671 in 1:96−cv−00374−FB) Notice of Cross Appeal,,, (644 in 1:96−cv−00374−FB) Letter, (631 in 1:96−cv−00374−FB) Notice(Other), Notice(Other), (500 in 1:96−cv−00374−FB) Response in Opposition to Motion, (449 in 1:96−cv−00374−FB) Motion to Amend/Correct/Supplement, (467 in 1:96−cv−00374−FB) Notice (Other), (616 in 1:96−cv−00374−FB) Letter, (492 in 1:96−cv−00374−FB) Response in Opposition to Motion, (525 in 1:96−cv−00374−FB) Response in Opposition to Motion, (635 in 1:96−cv−00374−FB) Letter, (560 in 1:96−cv−00374−FB) Letter, (522 in 1:96−cv−00374−FB) Response in Opposition to Motion, (112 in 1:02−cv−00256−FB−RML, 655 in 1:96−cv−00374−FB) Memorandum &Opinion,, (608 in 1:96−cv−00374−FB) Notice(Other), Notice(Other), (603 in 1:96−cv−00374−FB, 603 in 1:96−cv−00374−FB) Order, Add and Terminate Attorneys, (493 in 1:96−cv−00374−FB) Response in Opposition to Motion, (497 in 1:96−cv−00374−FB) Response in Opposition to Motion, (528 in 1:96−cv−00374−FB) Motion for Partial Summary Judgment, (660 in 1:96−cv−00374−FB) Motion for Reconsideration, (611 in 1:96−cv−00374−FB) Letter, (625 in 1:96−cv−00374−FB) Notice(Other), Notice(Other), Notice(Other), (570 in 1:96−cv−00374−FB) Letter, (507 in 1:96−cv−00374−FB) Response in Opposition to Motion, (548 in 1:96−cv−00374−FB) Motion to Strike, (578 in 1:96−cv−00374−FB) Motion for Leave to Appear Pro Hac Vice, (609 in 1:96−cv−00374−FB) Status Conference, (464 in 1:96−cv−00374−FB) Letter, (539 in 1:96−cv−00374−FB) Response to Motion,, (633 in 1:96−cv−00374−FB) Letter, (663 in 1:96−cv−00374−FB, 118 in 1:02−cv−00256−FB−RML) Scheduling Order,, (392 in 1:96−cv−00374−FB) Scheduling Order, (469 in 1:96−cv−00374−FB) Letter, (591 in 1:96−cv−00374−FB) Letter, (636 in 1:96−cv−00374−FB) NOTICE of Change of Address/Firm/Email, (515 in 1:96−cv−00374−FB) Response in Opposition to Motion, (461 in 1:96−cv−00374−FB) Order, (642 in 1:96−cv−00374−FB) Order, (629 in 1:96−cv−00374−FB) Notice(Other), (108 in 1:02−cv−00256−FB−RML) Docket Call, (502 in 1:96−cv−00374−FB) Response in Opposition to Motion, (627 in 1:96−cv−00374−FB) Notice(Other), (491 in 1:96−cv−00374−FB) Response in Opposition to Motion, (615 in 1:96−cv−00374−FB) Letter, (529 in 1:96−cv−00374−FB) Motion for Partial Summary Judgment, (580 in 1:96−cv−00374−FB) Status Conference, (114 in 1:02−cv−00256−FB−RML, 658 in 1:96−cv−00374−FB) Order, (471 in 1:96−cv−00374−FB) Motion to Enforce Judgment, (589 in 1:96−cv−00374−FB) Letter, (490 in 1:96−cv−00374−FB) Response in Opposition to Motion, (536 in 1:96−cv−00374−FB) Affidavit, (582 in 1:96−cv−00374−FB) Letter, (523 in 1:96−cv−00374−FB) Response in Opposition to Motion, (531 in 1:96−cv−00374−FB) Motion for Partial Summary Judgment, (530 in 1:96−cv−00374−FB) Motion for Partial Summary Judgment, (593 in 1:96−cv−00374−FB) Letter, (626 in 1:96−cv−00374−FB) Notice(Other), (667 in 1:96−cv−00374−FB) Letter, (92 in 1:02−cv−00256−FB−RML) Notice of Appearance, (477 in 1:96−cv−00374−FB) Memorandum &Opinion, (621 in 1:96−cv−00374−FB) Letter, (664 in 1:96−cv−00374−FB, 119 in

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10/22/2008 10/23/2008 11/03/2008

1:02−cv−00256−FB−RML) Order on Motion for Reconsideration,, (599 in 1:96−cv−00374−FB) Response in Opposition to Motion, (122 in 1:02−cv−00256−FB−RML, 669 in 1:96−cv−00374−FB) Notice of Appeal, (619 in 1:96−cv−00374−FB) Notice(Other), (495 in 1:96−cv−00374−FB) Response in Opposition to Motion, (652 in 1:96−cv−00374−FB, 110 in 1:02−cv−00256−FB−RML) Letter, (607 in 1:96−cv−00374−FB) Memorandum in Support, (624 in 1:96−cv−00374−FB) Notice(Other), (504 in 1:96−cv−00374−FB) Response in Opposition to Motion, (614 in 1:96−cv−00374−FB) Docket Call, (630 in 1:96−cv−00374−FB) Notice of Appearance, (526 in 1:96−cv−00374−FB) Response in Opposition to Motion, (622 in 1:96−cv−00374−FB, 622 in 1:96−cv−00374−FB) Order on Motion for Reconsideration, Order on Motion to Strike,,,,,,,, (538 in 1:96−cv−00374−FB) Notice (Other), Notice (Other), (517 in 1:96−cv−00374−FB) Response in Opposition to Motion, (564 in 1:96−cv−00374−FB) Letter, (605 in 1:96−cv−00374−FB) Letter, (338 in 1:96−cv−00374−FB) Memorandum &Opinion, (106 in 1:02−cv−00256−FB−RML, 106 in 1:02−cv−00256−FB−RML) Order, Add and Terminate Attorneys, (584 in 1:96−cv−00374−FB) Amended Complaint, (618 in 1:96−cv−00374−FB) Motion to Consolidate Cases, (553 in 1:96−cv−00374−FB) Reply to Response to Motion, (535 in 1:96−cv−00374−FB) Reply to Response to Motion,, (83 in 1:02−cv−00256−FB−RML) Order, (602 in 1:96−cv−00374−FB) Motion for Reconsideration,,, (488 in 1:96−cv−00374−FB) Response in Opposition to Motion, (590 in 1:96−cv−00374−FB) Letter, (100 in 1:02−cv−00256−FB−RML) Motion for Leave to Appear Pro Hac Vice, (648 in 1:96−cv−00374−FB) Letter, (407 in 1:96−cv−00374−FB) Notice (Other), (640 in 1:96−cv−00374−FB) Evidentiary Hearing, (527 in 1:96−cv−00374−FB) Motion for Partial Summary Judgment, (600 in 1:96−cv−00374−FB) Motion for Reconsideration, (549 in 1:96−cv−00374−FB) Response in Opposition to Motion, (511 in 1:96−cv−00374−FB) Response in Opposition to Motion, (505 in 1:96−cv−00374−FB) Response in Opposition to Motion, (628 in 1:96−cv−00374−FB) Notice of Appearance, (567 in 1:96−cv−00374−FB) Letter, (516 in 1:96−cv−00374−FB) Response in Opposition to Motion, (604 in 1:96−cv−00374−FB) Notice of Appearance, (70 in 1:02−cv−00256−FB−RML) Order, (554 in 1:96−cv−00374−FB) Response in Opposition to Motion, (594 in 1:96−cv−00374−FB) Order, (592 in 1:96−cv−00374−FB, 592 in 1:96−cv−00374−FB) Order on Motion for Partial Summary Judgment, Order on Motion to Enforce Judgment,,,, (641 in 1:96−cv−00374−FB) Order on Motion to Consolidate Cases, (586 in 1:96−cv−00374−FB) Letter, (462 in 1:96−cv−00374−FB) Order, (1 in 1:02−cv−00256−FB−RML) Complaint,, (532 in 1:96−cv−00374−FB) Response in Opposition to Motion, (486 in 1:96−cv−00374−FB) Response in Opposition to Motion, (585 in 1:96−cv−00374−FB) Order, (643 in 1:96−cv−00374−FB) Letter, (645 in 1:96−cv−00374−FB) Letter, (543 in 1:96−cv−00374−FB) Response to Motion, (596 in 1:96−cv−00374−FB) Letter, (95 in 1:02−cv−00256−FB−RML) Letter, (579 in 1:96−cv−00374−FB) Notice of Appearance, (647 in 1:96−cv−00374−FB) Letter, (91 in 1:02−cv−00256−FB−RML) Order, (668 in 1:96−cv−00374−FB) Motion to Amend/Correct/Supplement, (556 in 1:96−cv−00374−FB) Affidavit in Support of Motion, (472 in 1:96−cv−00374−FB) Order, (Gonzalez, Mary) (Entered: 10/22/2008)
Second Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 669 Notice of Appeal Please Note: This ROA contains only one document # 669&it is being forwarded to Lynn Dobbs. (Gonzalez, Mary) (Entered: 10/22/2008)
672 Letter to all counsel re motion for an injunction pending appeal by Ruben Miranda, John Brennan, James G. Ahearn, Scott Spring, John Mitchell, Eric Schauer Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Rosman, Michael) (Entered: 10/23/2008)
673 NOTICE OF CROSS APPEAL as to (665 in 1:96−cv−00374−FB) Clerk's Judgment,, by Janet A. Caldero, Irene Wolkiewicz, Frank Valdez, Kim Tatum, Carl D. Smith, Harry Santana, Maureen Quinn, Sandra D. Morton, Marianne Manousakis, Adele A. McGreal, Kathleen Luebkert, Mary Kachadourian, Marcia P. Jarrett, Dawn L. Ellis, Charmaine Didonato, Laura Daniele, Kristen D'Alessio, Andrew Clement, Martha Chellemi, Celia I. Calderon, Janet A. Caldero. Filing fee

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11/03/2008
11/04/2008 11/21/2008 11/21/2008 11/21/2008 11/21/2008 11/21/2008 11/21/2008 11/21/2008 11/26/2008

$ 455, receipt number 02070000000003220382. (Martin, Emily) (Entered: 11/03/2008)
674 Subsequent NOTICE OF CROSS APPEAL as to (16 in 1:06−cv−02921−FB−RML) [665 in 1:96−cv−374] Clerk's Judgment, as to [120 in 02−256−FB−RML) Clerk's Judgment,, by Irene Wolkiewicz, Frank Valdez, Kim Tatum, Carl D. Smith, Harry Santana, Maureen Quinn, Sandra D. Morton, Marianne Manousakis, Adele A. McGreal, Kathleen Luebkert, Mary Kachadourian, Marcia P. Jarrett, Dawn L. Ellis, Charmaine Didonato, Laura Daniele, Kristen D'Alessio, Andrew Clement, Martha Chellemi, Celia I. Calderon, Janet A. Caldero. Filing fee $ 455. See document #673 for receipt #. Service done via ECF. (McGee, Mary Ann) (Entered: 11/04/2008)
Third Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. 673 Notice of Cross Appeal,, 674 Subsequent Notice of Appeal. ATTN: L. Dobbs (McGee, Mary Ann) (Entered: 11/04/2008)
675 Joint MOTION to Stay Judgment in Part by Janet A. Caldero. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 11/21/2008)
676 MOTION to Stay re (675 in 1:96−cv−00374−FB) Joint MOTION to Stay Judgment in Part Memorandum of Law in Support by Janet A. Caldero. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 11/21/2008)
677 MEMORANDUM in Opposition re (675 in 1:96−cv−00374−FB) Joint MOTION to Stay Judgment in Part filed by John Brennan. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 11/21/2008)
678 AFFIDAVIT/DECLARATION in Opposition re (23 in 1:06−cv−02921−FB−RML, 128 in 1:02−cv−00256−FB−RML, 675 in 1:96−cv−00374−FB) MOTION to Stay filed by John Brennan. (Attachments: # 1 Exhibit) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 11/21/2008)
679 AFFIDAVIT/DECLARATION in Opposition re (23 in 1:06−cv−02921−FB−RML, 128 in 1:02−cv−00256−FB−RML, 675 in 1:96−cv−00374−FB) MOTION to Stay filed by John Brennan. (Attachments: # 1 Exhibit 6−12) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 11/21/2008)
680 REPLY in Support re (675 in 1:96−cv−00374−FB) Joint MOTION to Stay Judgment in Part filed by Janet A. Caldero. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 11/21/2008)
681 AFFIDAVIT/DECLARATION in Support re (23 in 1:06−cv−02921−FB−RML, 128 in 1:02−cv−00256−FB−RML, 675 in 1:96−cv−00374−FB) MOTION to Stay Reply Declaration of Emily Martin filed by Janet A. Caldero. (Attachments: # 1 Exhibit A) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Chernofsky, Melissa) (Entered: 11/21/2008)
682 MOTION for Preliminary Injunction Pending Appeal by Ruben Miranda, Scott Spring, John Mitchell, Eric Schauer, John Brennan, James Ahearn. (Attachments: # 1 Memorandum in Support, # 2 Affidavit Spring Statement, # 3 Affidavit Ahearn Statement, # 4 Affidavit Miranda Statement, # 5 Affidavit Mitchell Statement, # 6 Affidavit Schauer Statement, # 7 Affidavit Brennan Statement, # 8 Exhibit Exhibits to Brennan Statement, # 9 Affidavit Rosman Statement, # 10 Exhibit Exhibits to Rosman Statement, # 11 Memorandum in Opposition City Defendants Opposition Memo, # 12 Affidavit in Opposition Profeta Declaration + Exhibits, # 13 Memorandum in Opposition Caldero Intervenors Opposition Memo, # 14 Memorandum in Support Reply Memorandum) Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML

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12/12/2008 12/12/2008 12/12/2008 01/22/2009 01/28/2009 04/09/2009 05/14/2009
05/22/2009
05/22/2009 06/08/2009

(Rosman, Michael) (Entered: 11/26/2008)
683 Cross MOTION to Stay re 682 MOTION for Preliminary Injunction Pending Appeal, 665 Clerk's Judgment,, by New York City Board of Education, Department of Citywide Administrative Services. (Profeta, Lawrence) (Entered: 12/12/2008)
684 Cross MOTION to Stay re 682 MOTION for Preliminary Injunction Pending Appeal Memorandum of law in support of cross−motion by New York City Board of Education, Department of Citywide Administrative Services. (Profeta, Lawrence) (Entered: 12/12/2008)
685 MEMORANDUM in Opposition re 683 Cross MOTION to Stay re 682 MOTION for Preliminary Injunction Pending Appeal, 665 Clerk's Judgment,, filed by Dennis Mortensen, Scott Spring, John Brennan, James G. Ahearn. (Profeta, Lawrence) (Entered: 12/12/2008)
686 MOTION to Withdraw as Attorney by United States of America. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML (Alexis, Michael) (Entered: 01/22/2009)
687 NOTICE of Change of email address by Michael Evan Rosman Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Rosman, Michael) (Entered: 01/28/2009)
ELECTRONIC ORDER: Granting Michael Alexis's 686 Motion to Withdraw. There will be no formal order mailed to counsel. Ordered by Senior Judge Frederic Block on 4/9/2009. (Innelli, Michael) (Entered: 04/09/2009)
688 MANDATE of USCA as to 671 Notice of Cross Appeal,,, filed by William J. Diamond, Department of Citywide Administrative Services, New York City Department of Education, New York City Board of Education, New York City Department of Citywide Administrative Services, City of New York. It is Ordered that the motion by NYC Dept of Education et al to withdraw their cross−appeal is granted. Issued as Mandate: 5/5/09. (McGee, Mary Ann) (Entered: 05/19/2009)
ELECTRONIC ORDER: The Brennan Intervenors' motion 668 to supplement the record with a document filed with the court, but inadvertently omitted from the docket, is GRANTED. The Clerk shall transmit the document, which is attached as a 20−page exhibit to the motion to supplement the record, to the circuit court. There will be no formal order mailed to counsel. Ordered by Senior Judge Frederic Block on 5/22/2009. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Innelli, Michael) (Entered: 05/22/2009)
Fourth Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals. For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (668 in 1:96−cv−00374−FB) Motion to Amend/Correct/Supplement (McGee, Mary Ann) (Entered: 05/22/2009)
689 MEMORANDUM AND ORDER. Ordered by Senior Judge Frederic Block on 6/2/2009. Associated Cases: 1:96−cv−00374−FB, 1:02−cv−00256−FB−RML, 1:06−cv−02921−FB−RML (Lagana, Michael) (Entered: 06/08/2009)

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------x

JOHN BRENNAN, JAMES AHEARN, KURT BRUNKHORST, :

ERNIE TRICOMI, SCOTT SPRING, DENNIS

MORTENSEN, JOHN MITCHELL, and ERIC SCHAUER, :

on behalf of themselves and others

similarly situated,

:

Plaintiffs,

:

-against-

:

JOHN ASHCROFT, RALPH BOYD, UNITED STATES

:

DEPARTMENT OF JUSTICE, NEW YORK CITY BOARD

OF EDUCATION, NEW YORK CITY, DEPARTMENT

:

OF CITYWIDE ADMINISTRATIVE SERVICES,

and WILLIAM J. DIAMOND,

:

Defendants.

:

---------------------------------------------x

Civ No. 02-0256 (FB) (RML)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

Table of Contents Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The Earlier Lawsuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. The Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. The January 2000 Ruling And Intervenors' Appeal . . . . . . . . . . . . . . . . . . . . . . . . 5 D. This Lawsuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 THIS COURT SHOULD ISSUE A PRELIMINARY INJUNCTION . . . . . . . . . . . . . . . 10
I. Legal Standard For Preliminary Injunction . . . . . . . . . . . . . . . . . . . . . . . 10 II. Irreparable Harm Will Result Unless A Preliminary Injunction Is
Issued Against the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 III. Plaintiffs Are Likely To Succeed On The Merits Because The
Racial Preferences Contained in the Agreement Are Unconstitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 A. Racial Preferences Are Only Tolerated In Exceptional Cases
Involving Egregious, Deliberate Discrimination . . . . . . . . . . . . . 13 B. There Is No Showing Of Intentional Discrimination, Much
Less Egregious Intentional Discrimination, In This Case, And Little Evidence Of Any Discrimination At All . . . . . . . . . . 17 C. The Racial Preferences In The Agreement Are Not Narrowly Tailored To Remedying Identified Discrimination . . . 20 IV. The Balance of Hardships Favor Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . 22 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
i

This is an action for race and sex discrimination in violation of the Fifth and Fourteenth Amendments to the United States Constitution. By this motion, plaintiffs seek forward-looking injunctive relief preventing defendants from continuing to discriminate on the basis of race and sex in violation of the Constitution and various federal laws. Specifically, they seek an injunction preventing the municipal defendants from providing certain benefits to women and minorities for any competitively-distributed job benefit until this case is resolved.

Background

This case involves the New York City Board of Education's hiring of Custodian Engineers ("CEs"). The Board hires CEs for the maintenance of its schools.

A. The Earlier Lawsuit

The discriminatory actions about which plaintiffs complain were effected pursuant to an agreement (the "Agreement") that was reached to settle a case litigated in this Court, viz., United States v. New York City Board of Education, et al., E.D.N.Y. Civil Action No. 96-0374 (the "earlier lawsuit") involving the Board's hiring of CEs.1 Accordingly, a brief background of that earlier lawsuit is necessary to understand the basis for this motion.

The United States commenced the earlier lawsuit pursuant to Section 707 of Title VII, 42

1

There are now two levels of CEs, Level One and Level Two. At the time the earlier

lawsuit was commenced, there was only one level of CE (equivalent to the current job category

CE Level Two), and a separate job category called "Custodian" (equivalent to the current CE

Level One).

1

U.S.C. § 2000e-6, which authorizes the Attorney General to bring an action whenever he believes that any person or group of person is engaged in a pattern or practice of discriminatory behavior in violation of the substantive provisions of Title VII, and that "the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described." 42 U.S.C. § 2000e-6(a) (emphasis added). The Civil Rights Division of defendant Department of Justice ("DOJ") brought the earlier lawsuit on behalf of the United States. (Defendants Ashcroft and Boyd are, respectively, the current Attorney General and Assistant Attorney General for Civil Rights at DOJ). It was brought against defendant New York City, defendant New York City Board of Education, and an entity and officer who were eventually replaced by defendant Department of Citywide Administrative Services and defendant Diamond. (These entities are referred to collectively as the "municipal defendants").
The complaint in the earlier lawsuit alleged that municipal defendants, various entities and individuals with responsibilities for the hiring of CEs for the New York City school system, failed or refused to recruit blacks, Hispanics, Asians, and women on the same basis as white males for the Custodian and CE positions; failed or refused to hire blacks and Hispanics for those positions; and used entry-level and promotional written examinations for those positions that excluded blacks and Hispanics from those positions.
Despite bringing the earlier lawsuit under the "pattern or practice" provision of Title VII, the United States, represented by DOJ, quickly abandoned any pretense of proving such a pattern or practice, and focussed its case entirely on demonstrating two different disparate impact claims (i.e., claims that required no showing of discriminatory intent). First, it claimed that three
2

different civil service exams for the positions of Custodian and CE, viz. No. 5040 (given in 1985), 8206/8609 (given in 1989), and 1074 (given in 1993), had a disparate impact against blacks and Hispanics. Second, it claimed that defendants' recruiting practices had a disparate impact against blacks, Hispanics, women, and Asians.

B. The Agreement

The municipal defendants and DOJ (on behalf of the United States) executed the Agreement on February 11, 1999 and filed it with the Court. They subsequently filed a joint motion with this Court for a hearing pursuant to 42 U.S.C. § 2000e-2(n) to consider objections by those whose interests might be affected by the terms of the Agreement.

The Agreement provided benefits for minority and women employees. In the original Agreement, the municipal defendants agreed to convert 31 provisional Custodians and 12 provisional CEs to permanent status. They also agreed to give retroactive seniority to 41 Custodians (including the 31 whose provisional status was being converted) and 13 CEs (including the 12 whose provisional status was being converted). The Agreement refers to these 54 individuals as "Offerees." The Agreement provides them with retroactive seniority dates ranging from January 23, 1989 to February 28, 1996.2 The Agreement does not provide any

2

Subsequently, the United States and the municipal defendants agreed to add four more

Custodians and three more CEs to the list of Offerees. Further, two of the original Custodian

Offerees were no longer employed as such at the time that the Settlement Agreement came

before the court below. The United States and the municipal defendants concluded that those

two could not participate as Offerees. Thus, at the time of the fairness hearing in the lower court

in the earlier lawsuit, Offerees included 43 Custodians and 16 CEs. United States v. New York

(continued...)

3

backpay to the Offerees. See Agreement, ¶ 17.
All of the Offerees were either Asian Americans, Hispanic Americans, African Americans, or women. Indeed, paragraph 4 of the Agreement makes it clear that only members of those groups were eligible to be Offerees. See id. at ¶ 4 ("the term `Offeree(s)' shall refer to the following individuals . . . (a) All Custodians or Custodian Engineers who are listed in the Stipulation Regarding Provisional Hires as black, Hispanic, Asian, or female and are still employed as Custodians or Custodian Engineers . . . and (b) All black, Hispanic, Asian, or female Custodians or Custodian Engineers who . . . are employed as provisional Custodians or Custodian Engineers").
The formula by which retroactive seniority dates for those on the Stipulation Regarding Provisional Hires were determined was set forth in Paragraph 15 of the Agreement. Subparagraph "a" stated that the retroactivity dates for those who never took any of the challenged civil service exams would be the date of his or her provisional hiring. Subparagraphs "b" and "c" stated that the retroactivity dates for those who did take a challenged exam would be the earlier of (1) the date of his or her provisional hiring or (2) the Median Date for the particular civil service exam that he or she took. (The Median Dates for each exam are set forth in Paragraph 5 of the Agreement. They were negotiated by plaintiff and defendants, and purport to be the midpoint of the hiring period for those exams.)
2(...continued) City Board of Education, 85 F. Supp. 2d 130, 151 n.28, 156 (E.D.N.Y. 2000), rev'd sub. nom, Brennan v. New York City Board of Education, 260 F.3d 123 (2d Cir. 2001).
4

Nothing in the Agreement purports to identify which of the Offerees on the Stipulation Regarding Provisional Hires had retroactivity dates determined by subparagraph "a" -- i.e., who never took any challenged exam -- and those whose retroactivity dates were determined by subparagraphs "b" or "c." However, only 19 of the 52 Offerees from the Stipulation Regarding Provisional Hires listed in Appendix A to the Agreement had retroactive seniority dates corresponding to one of the Median Dates for the challenged exams. Of the remaining 33, their retroactive seniority date was the same as their provisional hire date. Thus, for these 33, it would seem that either (a) they were covered by subparagraph "a" and thus never took any challenged civil service exam or (b) they took a challenged civil service exam, but received retroactive seniority back to a date earlier than the Median Date for that exam (that is, back to their provisional hire date). Thus, the promotion and retroactive seniority provisions are not "make whole" remedies for the identified victims of discrimination.
C. The January 2000 Ruling And Intervenors' Appeal
In mid-March 1999, the District Court set a fairness hearing in the earlier lawsuit for May 27, 1999, and required all objections be postmarked on or before April 27, 1999. Many Custodians and CEs, including the plaintiffs in this current action, objected to the settlement on the ground that the provisions calling for permanent status for minority and women provisional employees and retroactive seniority for the minority and women Offerees were discriminatory and unfair.
With respect to the recruitment claim, the United States submitted the Declaration of 5

Orley C. Ashenfelter to support its claim that defendants' recruiting practices had a disparate impact on blacks, Hispanics, Asians, and women.3 Dr. Ashenfelter compared the proportions of those groups who applied for each of three civil service exams to the proportions of those groups in what he deemed to constitute the qualified labor pool (the pool of individuals available and qualified for employment as CEs).4 Dr. Ashenfelter concluded that there was a statistically significant shortfall between the proportions of those groups actually applying for the jobs and those in the relevant qualified labor pool. However, Dr. Ashenfelter did not try to identify the recruiting practices that purportedly caused these disparities. Nor did he try to show that the Offerees (all of whom were employed by the New York City Board of Education and who thus presumably had applied for jobs as CEs) were victims of these purportedly discriminatory recruiting practices.
In addition, on May 4, 1999, intervenors Brennan, Ahearn, and Brunkhorst (the "Brennan intervenors") moved to intervene in the action as plaintiffs in the earlier lawsuit. The District Court denied their motion to intervene and approved the settlement agreement in a decision and order dated February 9, 2000. Subsequent to the District Court's approval, the defendants implemented the Agreement, and provided the benefits to the Offerees called for under the Agreement.

3

Declaration of Orley C. Ashenfelter sworn to April 1, 1999 (Attachment 3 to United

States' Memorandum In Support of Settlement Agreement And In Response To Objections Filed

May 21, 1999) in United States v. New York City Board of Education, No. 96-0374.

4

Id. at 2.

6

The Brennan intervenors appealed. The Second Circuit reversed the District Court's order denying intervention, vacated approval of the Agreement, and remanded the matter for further proceedings.
In reversing, the Second Circuit noted that the Brennan intervenors "claimed that the Agreement was impermissibly based on race, ethnicity, and gender . . . " Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 127 (2nd Cir. 2001). The Court concluded that this allegation identified a legally cognizable interest sufficient to warrant intervention pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. Indeed, the Second Circuit recognized that the Brennan intervenors had asserted non-frivolous claims of discrimination. Id. at 129.
The Second Circuit identified the Brennan intervenors' non-frivolous discrimination claim as one asserting "that any impairment of their interests in their positions as provisional Custodian Engineers and in their seniority rights as [CEs] would constitute impermissible discrimination rather than a proper restorative remedy based on past discrimination against the Offerees." Id. at 133. See also, e.g., id. at 130 ("The government alleges that race/ethnicity/gender discrimination prevented the Offerees from obtaining positions as permanent [CEs] and that the remedy provided by the Agreement merely restores them to positions they would have held but for such discrimination").
D. This Lawsuit
As already noted, the United States and the municipal defendants did not wait for the Second Circuit's decision before implementing the Agreement. Instead, in early 2000, during the
7

pendency of the appeal, they accorded retroactive seniority and permanent status to the Offerees. See December 14, 2001 hearing transcript in United States v. New York City Board of Education at 23-25. As a result, when Plaintiffs John Mitchell and Eric Schauer applied for transfers to more desirable positions with more pay in different schools, they were rejected, in favor of Offerees. Had the Offerees who obtained the positions not received the retroactive seniority benefits provided for in the agreement, Mitchell and Schauer would have obtained the positions in question.
John Mitchell is a Custodian Engineer employed at P.S. 128 in Manhattan. Declaration of John Mitchell, ¶ 1. Early in 2001, he applied for a better position as the Custodian Engineer at P.S. 166. Id. at ¶ 2. Instead of appointing Mitchell, the Board chose Pedro Arroyo, a Hispanic. Id. at ¶ 3. Prior to the implementation of the Agreement, Mitchell had more seniority than Arroyo, and would have received the job. But as a result of the retroactive seniority conferred on him by the Agreement, Arroyo received the job. Id. at ¶¶ 4-5.
Eric Schauer is a Custodian Engineer employed at P.S. 30 in the Bronx. Declaration of Eric Schauer, ¶ 1. Early in 2001, he applied for a better position as Custodian Engineer at Junior High 145. Id. at ¶ 2. Instead of appointing Schauer, the Board chose Kevin LaFaye, a Hispanic. Id. at ¶ 3. Prior to the implementation of the Agreement, Schauer had more seniority than LaFaye, and would have received the job. But as a result of retroactive seniority conferred on him by the Agreement, LaFaye received the job. Id. at ¶¶ 4-5.
Mitchell, Schauer, and the other plaintiffs all intend to apply in the future for positions as
8

Custodian Engineers in other schools in New York City, and expect to do so repeatedly in this and subsequent years. See Mitchell & Schauer declarations, ¶ 6, and the other plaintiffs' declarations, ¶ 3. (Transfer lists are issued five times per year, and any Custodian can make many applications each year.)5 Each time they apply for such transfers, Plaintiffs will again face the risk of being rejected in favor of Offerees with greater seniority conferred based on the Agreement, unless this Court enjoins the enforcement of the Agreement. Seniority is dispositive of the competition 90% of the time. Brennan, 260 F.3d at 127. Moreover, "the exercise of seniority has a domino effect. If an Offeree obtains a desirable transfer, all comparable employees with more seniority than [one of the plaintiffs] but less than that of an Offeree may seek transfers at the next level of desirability, thereby foreclosing the particular [plaintiff]" from receiving that transfer as well. Id. at 132. Thus, plaintiffs' ability to obtain any of a wide array of desirable transfers is threatened by the retroactive seniority conferred on the Offerees by the Agreement. In addition to affecting plaintiffs' ability to obtain their preferred assignments, the loss of relative seniority will also affect them because seniority is used in making "temporary care" assignments, which give CEs the ability to temporarily serve as CE for two schools, not just one, and be paid for both.6
Accordingly, plaintiffs bring this motion for a preliminary injunction barring the

5

See, e.g., United States v. New York City Board of Education, 85 F. Supp. 2d at 139;

Declaration of Bernard R. Siskin in U.S. v. N.Y.C. Bd. of Educ., sworn to May 24, 1999 ("Siskin

Decl.), ¶ 5: Declaration of James Lonergan in U.S. v. N.Y.C. Bd. of Educ., sworn to May 20, 1999,

¶ 19.

6

United States v. N.Y.C. Bd. of Educ., 85 F. Supp. at 139 n.7.

9

enforcement of the Agreement's provisions awarding the Offerees permanent status and retroactive seniority for any competitively-awarded job benefit until this lawsuit is resolved on the merits.
Argument
THIS COURT SHOULD ISSUE A PRELIMINARY INJUNCTION
This Court should issue a preliminary injunction because plaintiffs can satisfy each of the alternative tests for a preliminary injunction, based on the likely unconstitutionality or illegality of the Agreement's race and sex-conscious provisions (or, at least, serious questions concerning their legality). Indeed, although no discovery has taken place yet, and plaintiffs believe that their case will only improve when it does, it seems quite unlikely that the defendants here can meet the Second Circuit's requirement of showing that the remedy is a "proper restorative remedy based on past discrimination against the Offerees." Brennan, 260 F.3d at 133 (emphasis added).
I. Legal Standard For Preliminary Injunction
It is well-established in this Circuit that a party is entitled to entry of a preliminary injunction by demonstrating (1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. Zervos v. Verizon New York, 252 F.3d 163, 172 (2d Cir. 2001); Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 149 (2d Cir. 1999); Polymer Technology Corp. v. Mimran, 37 F.3d 74,
10

77-78 (2d Cir. 1994); Jackson Dairy v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). Each of these alternative tests is met in this case.
II. Irreparable Harm Will Result Unless A Preliminary Injunction Is Issued Against the Agreement.
As shown below, plaintiffs will likely suffer race and sex discrimination in violation of the Constitution if a preliminary injunction is not issued. That constitutes irreparable harm per se. See Shaw v. Hunt, 517 U.S. 899, 908 (1996) ("[a] racial classification causes `fundamental injury' to the `individual rights of a person'"); Brewer v. West Irondequoit Central School District, 212 F.3d 738, 744-45 (2d Cir. 2000) (irreparable harm shown by plaintiff challenging race-based admissions policy); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir. 1984) ("[I]rreparable injury may be presumed from the fact of discrimination"); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (racial and sexual preferences disfavoring white males constitute irreparable harm); Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (same); Equal Open Enrollment Ass'n v. Bd. of Educ. of Akron, 937 F. Supp. 700, 709 (N.D. Oh. 1996) (same); Milwaukee County Pavers Ass'n v. Fiedler, 707 F. Supp. 1016, 1032 (W.D. Wis. 1989) (same); see also Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) ("`When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary'"), quoting 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2948 (2d ed. 1973). Moreover, plaintiffs are also threatened with irreparable economic injury, since the domino effect of the exercise of seniority rights, see Brennan, 260 F.3d at 132, makes it impractical for them to seek damages later for any
11

transfers they are denied as a result of the Agreement. See O'Donnell Construction Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992) (speculative showing involved in determining whether plaintiff would have received contracts in absence of racial preferences made damages remedy inadequate and qualified as irreparable harm).
III. Plaintiffs Are Likely To Succeed On The Merits Because The Racial Preferences Contained in the Agreement Are Unconstitutional.
As has been discussed above, the promotion and retroactive seniority provisions contained in the Agreement are not simply "make whole" remedies for identified victims of discrimination, since they confer benefits on minority and female employees who were not affected by the alleged disparate impact of the City's job tests and recruitment practices. Id. at 45. For example, many of the Offerees (1) never took the civil service exams being challenged and (2) could not have been the victims of any discriminatory recruiting practices (because they applied for and obtained jobs). Other Offerees may have taken the civil service exams, but are being given retroactive seniority that exceeds anything that is related to that potential discriminatory act.7

7

Nor is retroactive seniority necessarily the proper remedy for those who did take the

exam. Even assuming arguendo that the tests were not job-related -- a point never litigated in the

earlier lawsuit -- a plaintiff would not be entitled to a benefit if it could be shown that (s)he would

have been denied the benefit even without the discriminatory test. Caviale v. State of Wisconsin,

744 F.2d 1289, 1295-96 (7th Cir. 1984) ("We agree with the district court that Caviale should be

denied damages if her qualifications . . . were such that she would not have received the position

even" absent the selection criterion with disparate impact); Legault v. aRusso, 842 F. Supp. 1479,

1491 n. 17 (D.N.H. 1994), citing East Texas Motor Freight Systems, Inc. v. Rodriguez, 431 U.S.

395, 400, 402, 403 n.9 (1977); Wade v. New York Telephone Co., 500 F. Supp. 1170, 1180

(S.D.N.Y. 1980).

12

Thus, as the United States conceded in the earlier lawsuit, these provisions confer benefits based on the Offerees' race or sex, not their status as victims of discrimination. See Brief of the United States in Brennan v. New York City Board of Education, Second Circuit No. 00-6077 ("U.S. Appeals Br.") 37-50 (arguing that race-based remedy was justified under strict scrutiny). That is, the United States never argued in the Second Circuit that the Agreement should be approved because it was not race-based or sex-based. Id. This distinction is important because race-based relief, unlike victim-specific relief designed to make victims whole, is presumptively unconstitutional. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring) (contrasting "preference to identified victims of discrimination" with "preference" to minorities "on the basis of their race"); Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 n.7 (9th Cir. 1997) (same); Chance v. Bd. of Examiners, 534 F.2d 993, 998 (2d Cir. 1976) (distinguishing between preference made "because [recipient] is black" and preference "because . . . he has been discriminated against").
A. Racial Preferences Are Only Tolerated In Exceptional Cases Involving Egregious, Deliberate Discrimination
Racial preferences may be used when they are necessary to remedy the present effects of past discrimination against minority groups. However, the use of race for remedial purposes is subject to strict scrutiny. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed under a reviewing court under strict scrutiny"). Strict scrutiny forbids the use of race unless it is necessary to serve a compelling governmental interest and is narrowly tailored to
13

achieve that interest. Id. (Similarly, sex-based preferences are subject to heightened scrutiny, requiring that any sex-based classification have an "exceedingly persuasive justification," United States v. Virginia, 518 U.S. 515, 533 (1996), a standard similar to that used for racial classifications.)8 The same scrutiny applies to racial or sexual preferences contained in settlement agreements as to other state-sponsored affirmative-action plans. E.g., Aiken v. City of Memphis, 37 F.3d 1155, 1162 (6th Cir. 1994) (en banc) (strict scrutiny applied to consent decree); Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1568-69 (11th Cir. 1994) (same); Hayes v. North State Law Enforcement Officers Association, 10 F.3d 207, 212 (4th Cir. 1993) (same); U.S. Appeals Br. 37 ("Under the Equal Protection Clause, courts must apply strict scrutiny to government classifications based on race, including such race-conscious classifications voluntarily implemented by a public employer in a consent decree").
Race-based remedies are not appropriate in most cases of discrimination, and are permissible only as a last resort, when egregious or longstanding discrimination makes raceneutral remedies ineffective.
As the Supreme Court has explained,

8

E.g., Builders Association of Greater Chicago v. County of Cook, 256 F.3d 642, 647 (7th

Cir. 2001) (noting the similarity in standards); Michigan Road Builders Association v. Milliken,

834 F.2d 583, 595 (6th Cir. 1987) (striking down sex-based preference because there was no

evidence of state discrimination against women to support it), aff'd, 489 U.S. 1061 (1989).

14

In most cases, the court need only order the employer or union to cease engaging in discriminatory practices, and award make-whole relief to the individuals victimized by those practices. In some instances, however, it may be necessary to require the employer or union to take affirmative steps to end discrimination effectively to enforce Title VII. Where an employer or union has engaged in particularly longstanding or egregious discrimination, an injunction simply reiterating Title VII's prohibition against discrimination will often prove useless and will only result in endless enforcement litigation. In such cases, requiring recalcitrant employers or unions to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the workforce may be the only effective way to ensure the full enjoyment of the rights protected by Title VII.
Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 448-49 (1986) (emphasis added).
"The only cases found to present the necessary `compelling interest' sufficient to `justify a
narrowly-tailored race-based remedy' are those that expose . . . `pervasive, systematic, and
obstinate discriminatory conduct.'" Associated General Contractors v. Drabik, 214 F.3d 730,
737 (6th Cir. 2000), quoting Adarand Constructors, Inc. v. Pena, 515 U.S. at 237, citing United
States v. Paradise, 480 U.S. 149 (1987). Thus, race-conscious remedies are unconstitutional
where the "record is devoid of proof of a history of egregious and pervasive discrimination."
Dallas Fire Fighters Ass'n v. City of Dallas, 150 F.3d 438, 441 (5th Cir. 1998), citing Local 28,
478 U.S. at 448-49. See also Richmond v. J.A. Croson Co., 488 U.S. 469, 509 (1989) ("In the
extreme case, some form of narrowly-tailored racial preference might be necessary to break down
patterns of deliberate exclusion") (emphasis added). In the ordinary case, remedies are limited to
identified victims of discrimination. See Chance v. Board of Examiners, 534 F.2d 993, 998-99
(2d Cir. 1976) (error for court to impose race-conscious remedy which was not limited to "those
affected by the employer's prior discriminatory conduct").
15

Even when the use of race is necessary, "the court should also take care to tailor its orders to fit the nature of the violation it seeks to correct," Local 28, 478 U.S. at 476; see also id. at 481, so that it does not "discriminate more than is necessary to cure the effects of the earlier discrimination." Builders Association of Greater Chicago v. County of Cook, 256 F.3d 642, 646 (7th Cir. 2001); accord Shaw v. Hunt, 116 S. Ct. 1894, 1902-03 (1996); Wygant v. Jackson Board of Education, 476 U.S. 267, 280 & n.6 (1987); Middleton v. City of Flint, 92 F.3d 396, 412 (6th Cir. 1996); Contractors Association of Eastern Pennsylvania v. Philadelphia, 91 F.3d 586, 596 (3d Cir. 1993) (burden on whites must be "close to the minimum necessary to redress the discrimination justifying the preference"); Podberesky v. Kirwan, 38 F.3d 147, 153 (4th Cir. 1994). Thus, "race-conscious affirmative measures [should] not be invoked simply to create a racially balanced workforce," Local 28, 478 U.S. at 475, and should be reserved for exceptional cases, such as where an "employer or labor union [] has engaged in persistent or egregious discrimination" or "such relief is necessary to dissipate the lingering effects of pervasive discrimination." Id. at 476; see also id. at 480 (race-based remedies constitutional where there have been "egregious violations of Title VII" and "alternative remedies" would not be effective).
In short, race can constitutionally be used only as a "last resort," Richmond v. J.A. Croson Co., 488 U.S. at 519 (1989) (Kennedy, J., concurring); Engineering Contractors Ass'n v. Metro. Dade County, 122 F.3d 895, 926 (11th Cir. 1997); Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir. 1996); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993), "in the extreme case," Richmond v. J.A. Croson Co., 488 U.S. 469, 509 (1989), and then only when the racial classification remedies the violation "with greater precision that any alternative
16

means." Wygant v. Jackson Board of Education, 476 U.S. 267, 280 n.6 (1986) (plurality opinion).
The defendant has the burden of proving that its racial or gender preference is constitutional. Brewer v. West Irondequoit Central School District, 212 F.3d 738, 744 (2d Cir. 2000) (defendant "bears the burden" of proving racial classification is constitutional); Johnson v. Board of Regents of University of Georgia System, 236 F.3d 1234, 1244 (11th Cir. 2001) (same), citing Bass v. Board of County Commissioners, 256 F.3d 1095, 1114 (11th Cir. 2001), citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 510-11 (1989); Middleton v. City of Flint, 92 F.3d 396, 397, 404, 407 (6th Cir. 1996) (same; defendant has "heavy burden"); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 713 (9th Cir. 1997) ("The burden of justifying differential treatment by ethnicity or sex is always on the government"); accord Builders Ass'n of Greater Chicago v. County of Cook, 256 F.3d 642, 647 (7th Cir. 2001); see also United States v. Virginia, 518 U.S. 515, 533 (1996) ("The burden of justification [for a sex-based classification] is demanding and it rests entirely on the State").
B. There Is No Showing Of Intentional Discrimination, Much Less Egregious Intentional Discrimination, In This Case, And Little Evidence Of Any Discrimination At All.
Here, the United States abandoned its claim alleging a "pattern or practice" of discrimination, and based the Agreement solely on two claims of disparate impact (unintentional discrimination). Moreover, the Agreement is based solely on a prima facie case of disparate impact -- that is, simply a showing that a particular test or recruiting practice had a disparate
17

impact on a disfavored group. Thus, there is no evidence of intentional discrimination, much less persistent or egregious discrimination. Accordingly, there is no basis for using race at all. See People Who Care v. Rockford Bd. Of Educ., 111 F.3d 528, 534 (7th Cir. 1997) (provision calling for certain percentage of hired teachers to be black or Hispanic could not be justified by statistical disparities or underrepresentation; "there is no finding that the school district has ever discriminated (by which we mean discriminate intentionally -- the only kind of discrimination that violates the equal protection clause)"); accord Builders Ass'n of Greater Chicago v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001); Wessman v. Gittens, 160 F.3d 790, 817 (1st Cir. 1998) (Lipez, J., dissenting) (although dissenting judge supports race-conscious admissions at selective public school, he rejects claim that low percentages of African Americans or Hispanics applying to the school or the disparate impact of admissions exam to the school are sufficient to justify race-conscious policy; "these disparate impact contentions are wrong because they do not account for the centrality of proof of discriminatory animus in justifying a race-conscious remedial program"); see also Local 28, 478 U.S. at 475 ("race-conscious affirmative measures [should] not be invoked simply to create a racially balanced workforce").
If a prima facie case of disparate impact -- a mere showing that a particular test or recruiting practice had a disparate impact on a disfavored group -- were a sufficient basis for raceconscious and sex-conscious remedies, that would have radical implications. Race preferences would become permissible in most cases, rather than the exceptional cases envisioned by the Supreme Court:
18

* If a government employer preferred bilingual employees and significantly fewer whites than Hispanics are bilingual, the employer could create race-preferences for whites;
* If a public school requires its teachers to have a certain college degree, and that requirement eliminates more minorities than whites, the public school can engage in race-conscious hiring favoring the disparately-impacted minorities;
* If a police department refuses to hire those with a criminal record, and that requirement eliminates more minorities or males than whites or females, the police department can implement a program that favors minorities or males in hiring;
* If a fire department requires that firefighters be able to drag a hose, and this requirement has a disparate impact upon women, the fire department can institute preferences for women; and
* If a state school uses standardized tests that have a disparate impact on minorities (like the SAT test), then it, too, can provide preferences for those minorities adversely impacted.
Even if, contrary to the foregoing authorities, a prima facie disparate impact case were
sufficient to create a basis for state actors to employ racial or gender preferences, its application
here would be inappropriate, since there is no evidence of what caused the purported disparate
impact against Asians or women, and racial or sexual preferences are unconstitutional when they
include groups that were not subjected to discrimination. "A state or local government that has
discriminated just against blacks may not by way of remedy discriminate in favor of blacks and
Asian-Americans and women." Builders Association of Greater Chicago v. County of Cook,
256 F.3d 642, 646 (7th Cir. 2001) (emphasis in original), citing Croson, 488 U.S. at 506 (inclusion
of Orientals, Indians, Eskimos, and Aleuts in affirmative action plan belied its purported remedial
purpose and showed lack of narrow tailoring); accord Associated General Contractors
Association v. Drabik, 214 F.3d at 737; Monterey Mechanical, 125 F.3d at 714-15; L. Ferriozzi
19

Concrete Co. v. Casino Reinvestment Development Authority, 776 A.2d 254, 261-62 (N.J. App. 2001) (striking down affirmative action plan solely because it was not limited to groups that had been shown to be subject to discrimination). The United States did not contend, nor did it present any evidence, that women or Asians were victimized by the civil service exams. Rather, their inclusion as Offerees is based solely on the disparate impact recruiting claim, and that claim is supported solely by Dr. Ashenfelter's declaration.
Dr. Ashenfelter compared the demographic breakdown of those applying to take the civil service exams to the demographic breakdown of those in the same professions as the current jobs of those applying. See Discussion, supra, pp. 6-7. This analysis, then, does nothing to attribute the "disparate impact" to any particular recruiting practice employed by the City, as Title VII requires. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (plaintiffs must show that "the disparity they complain of is the result of one or more of the employment practices that they are attacking"); 42 U.S.C. § 2000e-2(k) (1) (B) (i).
C. The Racial Preferences In The Agreement Are Not Narrowly Tailored To Remedying Identified Discrimination.
Assuming arguendo that the prima facie cases of testing and recruiting "disparate impact" discrimination were sufficient to create a compelling governmental interest in the race-conscious provisions of the Agreement, the remedy proposed by the promotions and retroactive grant of seniority are not narrowly-tailored. There is no effort to identify the current effects of the past discrimination -- that is, how many minorities or women were actually harmed by defendants' discriminatory acts or how many would be currently employed if job-related exams had been
20

employed (even assuming the exams in question were not job-related) -- and to match the remedy to meet an identified discrepancy. The Offeree group has only modest overlap with the group that allegedly suffered discrimination by taking the tests, and, presumably, no overlap with the group that suffered discrimination by not responding to the discriminatory recruiting practices. By definition, the Offerees were not adversely affected by the challenged recruiting practices, since they sought and obtained employment.
The inclusion of Offerees who were never subjected to any discrimination also contradicts the Second Circuit's emphasis on limiting remedies to identified victims of discrimination whenever possible. See, e.g., Chance v. Bd. of Examiners, 534 F.2d 993, 998 (2d Cir. 1976) (where low proportion of minorities were caused by civil service exam that had been found not to be job-related, the Court nonetheless rejects lower court's race-conscious plan for future layoffs because "[t]he relief fashioned by the court below was not designed to benefit only those affected by the employer's prior discriminatory conduct" where it was conceded "that only a small percentage of the minority supervisors appointed since the inception of this litigation failed the examinations found to be discriminatory"); id. at 999 ("[i]f a minority worker has been kept from his rightful place on the seniority list by his inability to pass a discriminatory examination, he may, in some instances, be entitled to preferential treatment not because he is black, but because, and only to the extent that, he has been discriminated against") (emphasis added); Acha v. Beame, 531 F.2d 648, 653-54 (2d Cir. 1976) (emphasizing and expounding upon these portions of Chance).
Moreover, although monetary benefits could have been awarded to the Offerees, the 21

Agreement places the burden of the remedial relief almost entirely on innocent third parties who did not engage in discrimination. People Who Care v. Rockford Bd. Of Educ., 111 F.3d 528, 533 (7th Cir. 1997) ("equitable decrees often affect innocent third parties; their interests must be fully considered in the formulation of the decree, especially when the interests are of constitutional dignity"). Assuming some race-based or sex-based relief were required, there is no reason why the relief could not (at least in part) have taken the form of a remedy (like backpay) that would not affect innocent third parties.
In short, the Agreement's retroactive seniority provisions "constitute impermissible discrimination rather than a proper restorative remedy based on past discrimination against the Offerees." Brennan, 260 F.3d at 133.
IV. The Balance of Hardships Favor Plaintiffs
The plaintiffs will continue to suffer violations of their constitutional rights, and thus irreparable harm, unless the Agreement is enjoined. A damages remedy would be especially inadequate given the domino effect of the seniority system. See Brennan, 260 F.3d at 132. Moreover, the public interest would be served by issuing a preliminary injunction. "It is always in the public interest to prevent the violation of a party's constitutional rights." G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071, 1079 (6th Cir. 1994); accord O'Donnell Construction Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992) (noting "public's interest in maintaining a system of laws free of unconstitutional racial preferences"); Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (public interest was served by enjoining
22

racial and sexual preferences); Equal Open Enrollment Ass'n v. Bd. of Educ. of Akron, 937 F. Supp. 700, 709 (N.D. Oh. 1996) (same); Milwaukee County Pavers Ass'n v. Fiedler, 707 F. Supp. 1016, 1034 (W.D. Wis. 1989) (same). On the other hand, a preliminary injunction would impose little hardship on the defendants, who would merely be required to suspend their implementation of the Agreement and return to the status quo pending trial. Given the Second Circuit's belief that a resolution of the Agreement's constitutionality would be "heavily factual" (Brennan, 260 F.3d at 133), that status quo should be restored.
Conclusion
For the foregoing reasons, this Court should issue a preliminary injunction against the defendants prohibiting them from continuing to provide the benefits of permanent status or retroactive seniority (from Paragraphs 13-16 of the Agreement) to the Offerees for any competitively-distributed job benefit until resolution of this matter.
Michael E. Rosman (MER 6308) CENTER FOR INDIVIDUAL RIGHTS 1233 20th Street, N.W., Ste. 300 Washington, D.C. 20036 (202) 833-8400 George W.C. McCarter McCARTER & HIGGINS 39 Avenue of the Commons, Ste. 200 Shrewsbury, NJ 07702 (732) 544-5050
23

 
 2000 WL 34498101 (E.D.N.Y.) (Cite as: 2000 WL 34498101)

Page 1

For Opinion See 448 F.Supp.2d 397, 2005 WL 1949477
United States District Court, E.D. New York. UNITED STATES OF AMERICA, Plaintiff,
John Brennan, James G. Ahearn, and Kurt Brunkhorst, Plaintiffs/Intervenors, v.
NEW YORK CITY BOARD OF EDUCATION; City of New York; William J. Diamond, Commissioner, New York City Department of Citywide Administrative Services (in his official capactity); New York City Department of Citywide Administrative Services, De-
fendants. Civil Action No. 96-0374 (FB) (RL).
2000.
Complaint in Intervention
Plaintiffs/intervenors John Brennan, James G. Ahearn, and Kurt G. Brunkhorst, by way of Complaint in Intervention, allege as follows:
JURISDICTION
This is an action arising under the Constitution and laws of the United States. Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1331 and 1343(3).
ALLEGATIONS OF FACT
1. Each of plaintiffs/intervenors is employed as a Custodian/Custodian Engineer by defendant New York City Board of Education.
2. Each of plaintiffs/intervenors is a Caucasian male.
3. The Complaint filed by plaintiff United States of America (“United States”) alleges, among other things, that defendants have engaged in practices relating to the recruitment, hiring, and promotion of Custodians and Custodian Engineers in the New York City school system that have discriminated against blacks, Hispanics, Asians, and women.
4. The Answer filed by plaintiffs/intervenors' employer, defendant New York City Board of Education, among others, denies all allegations of wrongful discrimination.
5. This Court has held no hearings as to the matters alleged in the complaint, and this Court has made no findings as to the truthfulness of the matters alleged in the Complaint.
6. The New York City school system operated by defendants contains many positions for Custodians and Custodian Engineers, with compensation depending upon the size
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2000 WL 34498101 (E.D.N.Y.) (Cite as: 2000 WL 34498101)

Page 2

of the school to which a particular Custodian or Custodian Engineer is assigned. Assignment to more highly paid positions at larger schools is determined primarily by the seniority dates (derived from examination scores) of the applicants for the position.
7. On or about February 11, 1999, the United States and defendants entered into a certain Settlement Agreement, which, subject to Court approval, would resolve all allegations of wrongful discrimination alleged in the Complaint filed by the United States.
8. The Settlement Agreement provides that defendants shall award to a class of persons referred to as “Offerees”, and including only black, Hispanic, Asian, and female persons, positions as permanent Custodians or Custodian Engineers, with retroactive seniority dates tha are, in many cases, equal to or ahead of the seniority dates presently enjoyed by plaintiffs/intervenors.
9. The seniority dates enjoyed by plaintiffs/intervenors were attained by them as a result of their performance in competitive, job related, nondiscriminatory examinations referred to in the Complaint of the United States as “Challenged Examinations”.
10. Persons referred to as “Offerees” in the Settlement Agreement either did not take any of the Challenged Examinations, or received lower scores on such examinations than were received by each of plaintiffs/intervenors, or took the examinations at a later date than plaintiffs/intervenors, in all cases entitling such persons to lower seniority than that enjoyed by plaintiffs/intervenors.
11. At least some of the retroactive seniority dates proposed to be awarded to the “Offerees” are ahead of the dates presently enjoyed by plaintiffs/intervenors. To the extent that occurs, retroactive seniority dates awarded under the Settlement Agreement will damage plaintiffs/intervenors by delaying or preventing their promotion to more senior, and higher paying, positions as Custodians/ Custodian Engineers.
12. The Settlement Agreement does not require defendants to award back pay or money damages to any persons. The sole burden and expense of the Settlement Agreement, if approved by the Court and implemented by the parties, will be borne by plaintiffs/intervenors and persons similarly situated.
13. Defendants have failed to protect the interests of plaintiffs/intervenors in this litigation.
14. In addition to filing this Complaint, Plaintiffs/intervenors have filed written objections to the Settlement Agreement.
15. The proposed retroactive grant of seniority in the Settlement Agreement, to the extent it is based solely on an individual's race or ethnicity, constitutes illegal race discrimination.
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Page 3

16. Defendants have no compelling governmental interest to justify the use of race. Even if they had such an interest, the proposed retroactive grant of seniority in the Settlement Agreement is not narrowly tailored to meet that interest.
17. The proposed Settlement Agreement constitutes illegal employment discrimination against plaintiffs/intervenors on account of their race, in violation of of 42 U.S.C. § 2000e-2; deprives plaintiffs/intervenors of equal protection of the laws and the enjoyment of their civil rights as citizens of the United States, in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. §§ 1981 and 1983; and constitutes a conspiracy to deprive plaintiffs/ intervenors of their civil rights under 42 U.S.C. § 1985(3).
WHEREFORE plaintiffs/intervenors demand judgment declaring that the “Settlement Agreement” is illegal, null, and void; temporarily and permanently enjoining plaintiff and defendants from providing a race based retroactive grant of seniority or any other impermissibly discriminatory remedy to the “Offerees”; and awarding plaintiffs/intervenors their attorneys' fees, pursuant to 42 U.S.C. § 1988.
UNITED STATES OF AMERICA, Plaintiff, John Brennan, James G. Ahearn, and Kurt Brunkhorst, Plaintiffs/Intervenors, v. NEW YORK CITY BOARD OF EDUCATION; City of New York; William J. Diamond, Commissioner, New York City Department of Citywide Administrative Services (in his official capactity); New York City Department of Citywide Administrative Services, Defendants. 2000 WL 34498101 (E.D.N.Y.)
END OF DOCUMENT

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

 
 260 F.3d 123 (2001)
John BRENNAN; James G. Ahearn; Kurt Brunkhorst, Intervenors-Appellants, v.
N.Y.C. BOARD OF EDUCATION; Department of Citywide Administrative Services; William J. Diamond, Personnel Director, New York City Department of Personnel (in his official capacity); 115-13 120th Street, Defendants-Appellees, United States of America, Plaintiff-Appellee.
Docket No. 00-6077.
United States Court of Appeals, Second Circuit. August Term, 2000.
Argued: October 23, 2000. Decided: August 3, 2001.
12456 *124 *125 *126 Michael E. Rosman, Center for Individual Rights, Washington, DC, (George W.C. McCarter, McCarter & Higgins, Shrewsbury, New Jersey, of counsel), for Intervenors-Appellants.
Alan Beckoff (Michael D. Hess, Corporation Counsel of the City of New York, and Stephen J. McGrath, of counsel), New York, NY, for Defendants-Appellees.
Lisa Wilson Edwards, United States Department of Justice, Civil Rights Division (Bill Lann Lee, Acting Assistant Attorney General, and Dennis J. Dimsey, of counsel), Washington, DC, for Plaintiff-Appellee.
Before: CARDAMONE, WINTER, and POOLER, Circuit Judges.
WINTER, Circuit Judge:
John Brennan, James G. Ahearn, and Kurt Brunkhorst appeal from Magistrate Judge Levy's denial of their motion to intervene as of right, pursuant to Fed. R.Civ.P. 24(a)(2). See United States v. New York City Bd. of Educ., 85 F.Supp.2d 130, 154-56 (E.D.N.Y.2000). The underlying action was brought by the United States against the New York City Board of Education and certain City officials (collectively "Board"). The complaint alleged employment discrimination. The parties 0907 the government and the Board 0907 reached a settlement agreement ("Agreement") and moved for a fairness hearing and approval in the district court. The Agreement contained provisions that conferred certain employment rights on a number of persons who are African American, Hispanic, Asian, or female. Appellants, white, male employees of the Board, sought to intervene. They claimed that intervention was necessary to protect their present employment status 0907 in particular, their seniority rights. The district court denied the intervention motion on the ground that appellants could not assert a cognizable interest under Rule 24 (a)(2) because they had presumptively obtained their employment status as a result of discrimination, they had no property right in that status, and any adverse effect of the Agreement was remote and speculative. See id. at 155-56. We disagree and reverse.
BACKGROUND
In bringing the underlying action pursuant to Section 707(a) of Title VII, 42 U.S.C. § 2000e-6(a), the government alleged a pattern and practice of racial and gender discrimination by the Board in its hiring and recruitment practices with respect to the positions of Custodian and Custodian Engineer. These positions appear to have a hierarchical relationship, with Custodian Engineer being the superior job.[1] Before one becomes a permanent Custodian or Custodian Engineer with seniority rankings, one must serve what is essentially a probationary period as a provisional Custodian or provisional Custodian Engineer.
The complaint alleged, inter alia, that the Board engaged in discrimination by: (i) failing to recruit females and 127 minorities *127 on the same basis as white males; (ii) failing to hire and promote minorities on the same basis as

whites; and (iii) using civil service exams 0907 which determine the order of hiring and promotion and, therefore, seniority 0907 that had a negative, disparate impact on black and Hispanic applicants.
After discovery and negotiations, the government and the Board executed the Agreement. In pertinent part, the Agreement required the Board to confer permanent civil service status on forty-three provisional African American, Hispanic, Asian, and female Custodians and Custodian Engineers, and to provide retroactive seniority to them and an additional eleven employees (fifty-four in all) of similar backgrounds (collectively "Offerees").
The Agreement would benefit the Offerees in the following ways. The salary of a Custodian or Custodian Engineer is discounted at various levels during the first five years of an individual's employment. Retroactive seniority would entitle an Offeree to a higher salary, i.e., a smaller discount. Moreover, the larger the building in which a Custodian or Custodian Engineer works, the higher the salary. As a result of a collective bargaining agreement, transfers to larger buildings are based generally on a formula that uses both seniority and performance ratings. In practice, 90% of actual transfers are based on the transferee's seniority. Finally, permanent civil service status benefits an Offeree by allowing him/her to bypass provisional status in which the employee has no protected rights.
As claimed by appellants, the pertinent principal effects of the Agreement on other employees appear to be twofold. First, other Custodians or Custodian Engineers will have less seniority relative to Offerees moved above them and may therefore fail to obtain a desired transfer to a larger building. Second, permanent Custodian Engineers have seniority rights whereas provisional Custodian Engineers are probationary employees.[2] According permanent status as a Custodian Engineer to an Offeree may result in the Offeree's displacing a provisional Custodian Engineer, who may return to a permanent Custodian position.
The parties moved the district court to hold a fairness hearing at which objections to the Agreement would be heard. See 42 U.S.C. § 2000e-2(n) (preventing challenge to employment practices implementing consent judgment provided notice and opportunity to object are given). Various employees, including appellants, filed objections to the proposed Agreement on numerous grounds. Appellants, who were permanent Custodians and/ or provisional Custodian Engineers, also moved to intervene as of right, pursuant to Fed.R.Civ.P. 24(a)(2),[3] on the ground that the Agreement was unconstitutional. They claimed that the Agreement was impermissibly based on race, ethnicity, and gender and would result in some or all of them losing their status as provisional Custodian Engineers and/or their relative seniority rights as Custodians and/or Custodian Engineers. The district judge 128 referred the matter to *128 Magistrate Levy to conduct a fairness hearing, and the government and the Board then consented to have the case referred to Magistrate Levy for all purposes, pursuant to 28 U.S.C. § 636(c).
Magistrate Levy received expert declarations and held a fairness hearing, at which employees of the Board who filed timely objections to the Agreement had an opportunity to raise their concerns, while the government and the Board presented arguments in favor of entry of the Agreement.
The district court found that the government had made a prima facie showing on each of its discrimination claims; that the remedies proposed in the Agreement were fair, reasonable, and legal; and that none of the objections had sufficient merit to overcome the "presumption of validity" that the district court accorded to the Agreement. 85 F.Supp.2d at 157.
The district court also denied appellants' motion to intervene. It reasoned that they had presumptively obtained their seniority rights as a result of discrimination. It further concluded that appellants had no legally protectable interest in their employment status or seniority rankings. Specifically, the district court held that "a civil servant has no vested property right in a particular position or appointment, and `a person on an eligibility list does not possess any mandated right to appointment or any other legally protectible interest.'" 85 F.Supp.2d at 155 (quoting Kirkland v. New York State Dep't of Corr. Servs., 711 F.2d 1117, 1134 (2d Cir.1983) (internal quotation marks omitted)).
The district court further held that "[e]ven if the proposed intervenors could assert some cognizable interest in their seniority rights, that interest would be remote and speculative." Id. at 156. It based this conclusion on the perceived unlikelihood that any of the fifty-four Offerees would compete with any of the appellants for a transfer to a particular building and obtain the transfer as a result of the retroactive seniority. For such a result to occur, the

court reasoned, several events would need to converge: (i) one of the Offerees and one of the appellants would have to request the same transfer; (ii) each would have to have the same job title (i.e., Custodian or Custodian Engineer); (iii) the performance ratings of the Offeree and the appellant would have to be quite close; and (iv) the Offeree and the appellant would have to hold the first and second spots, respectively, on the transfer list for the particular building. The district court held, therefore, that appellants' interest in their seniority rankings was not "direct, substantial, and legally protectable," id. at 156 (internal quotation marks omitted), denied appellants' motion to intervene, and approved the Agreement.
This appeal followed.
DISCUSSION
"We review the denial of ... the motion for intervention as of right under Fed.R.Civ.P. 24(a) ... for abuse of discretion." New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir.1992); accord United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 854 (2d Cir.1998) ("We have jurisdiction of an appeal from an order which denies intervention. Our review invokes the abuse of discretion standard." (internal citations omitted)). "Errors of law or fact may constitute such abuse." SG Cowen Sec. Corp. v. Messih, 224 F.3d 79, 81 (2d Cir.2000).
To intervene as of right, a movant must: "(1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is 129 not protected *129 adequately by the parties to the action." Kheel, 972 F.2d at 485. The timeliness of appellants' motion to intervene is not questioned.
Turning to the nature of appellants' interest in the underlying action, we have stated that, for an interest to be cognizable under Rule 24(a)(2), it must be "direct, substantial, and legally protectable." Washington Elec. Coop., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir.1990); accord Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971) (requiring "significantly protectable interest"), superceded by statute on other grounds as stated in United States v. New York Tel. Co., 644 F.2d 953, 956 (2d Cir.1981); Kheel, 972 F.2d at 486; Restor-A-Dent Dental Labs., Inc. v. Certified Alloy Prods., Inc., 725 F.2d 871, 874 (2d Cir.1984) ("[S]uch an interest must be direct, as opposed to remote or contingent."). "An interest that is remote from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule." Washington Elec., 922 F.2d at 97.
Appellants assert that they have a cognizable interest both in their status as provisional Custodian Engineers and in their contractual seniority rights as Custodians and Custodian Engineers. Because permanent Custodian Engineers have seniority over provisional Custodian Engineers, the former may replace the latter at any time. Appellants claim that, on the one hand, were they to be replaced as Custodian Engineers and returned to their positions as Custodians, they would have reduced seniority relative to the Custodian Offerees as a result of the Agreement. On the other hand, if they remained provisional Custodian Engineers and achieved permanent status in that position, they would have less seniority than the Offerees who became permanent Custodian Engineers with retroactive seniority.
As noted, the district court held that appellants' interests were not cognizable under Rule 24(a)(2) because: (i) their seniority rights and employment status relative to the Offerees had presumptively been obtained as a result of illegal discrimination; (ii) they had no property or other legally protectable interest in their status as provisional Custodian Engineers or seniority as Custodians; and (iii) their interest in their seniority rights was too remote and speculative to support intervention under Rule 24(a)(2). We disagree and address each rationale in turn.
With regard to whether appellants lack a cognizable interest in their employment status and seniority rights because these benefits were presumptively obtained as the result of discriminatory practices, we believe that the district court's ruling put the cart before the horse. As we have stated,
[E]xcept for allegations frivolous on their face, an application to intervene cannot be resolved by reference to the ultimate merits of the claims which the intervenor wishes to assert following intervention, but rather turns on whether the applicant has demonstrated that its application is

timely, that it has an interest in the subject of the action, that disposition of the action might as a practical matter impair its interest, and that representation by existing parties would not adequately protect that interest.
Oneida Indian Nation v. New York, 732 F.2d 261, 265 (2d Cir.1984) (internal citation omitted). Thus, while the presumption of validity of a settlement agreement may shift the burden of showing invalidity to non-party 130 objectors, it carries no weight in the determination of whether an interest is sufficient for intervention under Rule *130 24(a). See generally Kirkland, 711 F.2d at 1126-28. The sufficiency of an interest entitles the intervenor to contest the merits of his/her claim based on that interest. An interest that is otherwise sufficient under Rule 24(a) (2) does not become insufficient because the court deems the claim to be legally or factually weak. In the present case, it is precisely the existence or non-existence of prior discrimination and its relationship to appellants' present status that they want to contest by intervening as parties. The merits can, therefore, be resolved only after appellants have an opportunity for discovery and the presentation of evidence as a party to the action.[4]
We turn now to appellees' argument that denial of intervention was proper because of appellants' lack of a property or other legally protectable interest in their employment status. Initially, we address this claim with respect to appellants' status as provisional Custodian Engineers and thereafter discuss it in the context of their seniority rights. Under New York law, appellants have no property or other protectable legal interest in their status as provisional Custodian Engineers. See Meyers v. City of New York, 208 A.D.2d 258, 622 N.Y.S.2d 529, 532 (2d Dep't 1995) ("It is well settled that a probationary employee, unlike a permanent employee, has no property rights in his position ...."); see also York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838 (1984). However, Rule 24(a)(2) "does not require that the intervenor prove a property right, whether in the constitutional or any other sense." United States v. City of Chicago, 870 F.2d 1256, 1260 (7th Cir.1989). Indeed, New York Public Interest Research Group, Inc. v. Regents of the University of the State of New York, 516 F.2d 350, 351-52 (2d Cir. 1975) (per curiam), held that the Pharmaceutical Society of the State of New York, Inc. and three individual pharmacists had standing to intervene as of right in an action challenging the legality of a regulation prohibiting advertising the price of prescription drugs, even though the interest asserted-the economic interest of pharmacists in sustaining the regulation-clearly did not constitute a property right.
Rule 24(a)(2) requires not a property interest but, rather, "an interest relating to the property or transaction which is the subject of the action." Appellants have such an interest in the Agreement. Appellants are asserting claims that are the mirror image of the claims asserted by the government. The government alleges that race/ethnicity/ gender discrimination prevented the Offerees from obtaining positions as permanent Custodians and Custodian Engineers and that the remedy provided by the Agreement merely restores them to positions they would have held but for such discrimination. Appellants claim the race/ethnicity/gender-conscious remedy is not justified by any demonstrated past discrimination and that their loss of relative seniority as a result of the Agreement is itself impermissible discrimination.
The claims asserted by the government and appellants, therefore, are based on identical legal theories, the 131 difference between them being entirely in the issue of *131 whether the remedy restores circumstances that
would have existed but for discrimination or is itself discrimination. Whether appellants or the Offerees have a property right in the position of provisional Custodian Engineer simply has nothing to do with that issue from either point of view. While it is the case that a provisional Custodian Engineer might not be entitled to procedural due process in a termination proceeding based on poor performance because of a lack of a property interest, see Meyers, 622 N.Y.S.2d at 532, an adverse employment action based on race, ethnicity, or gender is clearly illegal. To hold otherwise would require civil rights plaintiffs generally to show a property interest in the position in question. We note that we have held in the past that, where a proposed intervenor's interests are otherwise unrepresented in an action, the standard for intervention is no more burdensome than the standing requirement, see United States Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978), and that appellants' interest in the underlying action and the Agreement is for purposes of standing identical to that of the Offerees.
The preceding discussion is of course equally applicable to appellants' seniority rights as both Custodians and Custodian Engineers, but we note also that seniority rights are for many purposes legally cognizable rights. "Seniority is a contractual right, and a competitive seniority system establishes a hierarchy of such rights according to which various employment benefits are distributed." Lorance v. AT & T Techs., Inc., 490 U.S. 900,

905, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989) (internal quotation marks, citations, emphasis, and alterations omitted), superceded by statute on other grounds as stated in Landgraf v. USI Film Prods., 511 U.S. 244, 251, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Appellants, therefore, have "an interest relating to the [Agreement]."
Finally, we turn to the district court's conclusion that, even if appellants could assert an interest in seniority rights that otherwise would be cognizable under Rule 24(a)(2), it would be too "remote and speculative" to permit intervention as of right, chiefly because of the alleged unlikelihood of a confluence of events resulting in the foreclosure of an appellant by an Offeree for a building transfer. 85 F.Supp.2d at 156. We again disagree.
We agree with the caselaw in numerous other circuits holding that the kind of interest asserted by appellants here is cognizable under Rule 24(a)(2). See, e.g., United States v. City of Hialeah, 140 F.3d 968, 982 (11th Cir.1998) ("[T]he retroactive seniority provision's threat to the objectors' competitive seniority benefits prevented entry of the consent decree. The objectors were not required to prove with certainty that particular employees would lose contractual benefits."); Edwards v. City of Houston, 78 F.3d 983, 1004 (5th Cir.1996) (en banc) (holding interest in equal access to promotion system and promotion opportunities justifies intervention); Thomas v. Bakery, Confectionery & Tobacco Workers Int'l Union, 982 F.2d 1215, 1220 (8th Cir. 1992) ("The Metz employees' seniority rights were not in issue [during the liability phase of the trial].... The intervenors had a substantial interest in the remedy phase of the trial, however, since a decision to reinstate the plaintiffs, dove-tail them with the Metz employees, or end-tail the Metz employees would substantially affect their rights."); Dawson v. Pastrick, 600 F.2d 70, 75 (7th Cir.1979) ("The union in this case was allowed to intervene to protect the interests of majority firefighters in their promotional seniority rights.... Although ... no majority fireman has as yet been denied 132 a promotion *132 because of the court's decree, the remedy granted makes such an event a distinct possibility."); Stallworth v. Monsanto Co., 558 F.2d 257, 268-69 (5th Cir.1977) (holding that if, on remand, it was shown that employees had contractual relationship that covered seniority rights, interest requirement of Fed.R.Civ.P. 24(a)(2) would be satisfied). But cf. Dilks v. Aloha Airlines, Inc., 642 F.2d 1155, 1157 (9th Cir. 1981) (per curiam).
There is good reason for the existence of this body of caselaw. The district court focused solely on the question of whether any appellant would lose a building transfer directly to one of the Offerees. That is not the proper focus, however, because the exercise of seniority rights has a domino effect. If an Offeree obtains a desirable transfer, all comparable employees with more seniority than an appellant but less than that of the Offeree may seek transfers at the next level of desirability, thereby foreclosing the particular appellant. The effects of the loss of relative seniority are not easily forecast and may not even be perceived as they happen. To take an alphabetical example, if employee Z is moved up to just above employee A, then the effects of that move on employee T will turn on the preferences of employees A through S. Where transfers among buildings are concerned, size (and therefore salary) will be important in determining whether an employee will exercise seniority to seek a transfer, but some employees will also be motivated by other factors, such as location. If employee Z secures a transfer, a chain reaction will begin with various openings and transfers occurring based on a variety of decisions by A through S. After all is played out, employee T may well find it impossible to reconstruct what transfer might have been available to him/her but for the moving-up of employee Z.
An appellant's loss of a desirable transfer need not be directly to an Offeree, therefore, for the loss to be the result of the Agreement. That being the case, the effects of a loss of relative seniority rights should not be regarded as too speculative and remote to justify intervention[5] save, perhaps, in a case where a concrete effect on an employee is impossible. That is clearly not the case here.
Similarly, appellants' interest in the diminution of their seniority rights is not "remote" from the subject matter of this action and would not "inject collateral issues." Kheel, 972 F.2d at 486 (internal quotation marks omitted). Here, the loss of appellants' relative seniority rights 0907 ineluctably the result of the proposed Agreement 0907 is central, rather than collateral, to the Agreement.
Appellants have thus satisfied the second requirement for intervention under Rule 24(a)(2). For the same reasons, appellants have also adequately "demonstrate[d] that the interest may be impaired by the disposition of the action," Kheel, 972 F.2d at 485, the third requirement.
With regard to the last requirement of Rule 24(a)(2) 0907 a showing "that the interest is not protected adequately by the parties to the action," Kheel, 972 F.2d at 485 0907 the Board argues that its presence as a party adequately

represented appellants' interests. We disagree. The test here is not whether the Board did well on behalf of 133 appellants 0907 an inquiry that would require exploration of the merits 0907 but *133 whether the Board's interests were
so similar to those of appellants that adequacy of representation was assured. See Washington Elec., 922 F.2d at 98. We find no such congruence of interests here. In litigation such as the present case, an employer may have an interest in defending its hiring and other practices or in retaining certain incumbents in their jobs. However, it may have an equally strong or stronger interest in bringing such litigation to an end by settlements involving the displacement of employees who are not parties to the action. The employer may, in short, behave like a stakeholder rather than an advocate. Indeed, in the present case it appears that the entire burden of the settlement 0907 there is no back pay award to the Offerees 0907 is upon individuals like appellants.
Appellants are, therefore, to be granted intervention. They should be accorded discovery and other rights with regard to their claim that any impairment by the Agreement of their interests in their positions as provisional Custodian Engineers and in their seniority rights as Custodians and Custodian Engineers would constitute impermissible discrimination rather than a proper restorative remedy based on past discrimination against the Offerees.
Appellants also ask us to exercise discretionary jurisdiction and rule on the merits of the Agreement, rather than remand the case to the district court. See Kaplan v. Rand, 192 F.3d 60, 67 (2d Cir. 1999) ("Although the general rule is that only a party of record may appeal a judgment, a nonparty may appeal when the nonparty has an interest that is affected by the trial court's judgment" (internal quotation marks omitted)). We think such a course would be ill-advised.
Appellants have argued convincingly that they were denied the opportunity to develop a record that would have permitted a full and appropriate ruling on the fairness and constitutionality of the Agreement. Given the heavily factual nature of these issues, we believe that the best course is to remand the case to allow for a full development of the record.
CONCLUSION
We therefore vacate the order denying the motion to intervene and approving the Agreement and remand with instructions to the district court to permit appellants to intervene.
[1] The record is unclear as to whether there is some formal or informal progression from a Custodian position to a Custodian Engineer position. This issue is not dispositive at this stage of the proceedings and can be clarified on remand.
[2] It is unclear from the record whether provisional Custodian Engineers also have seniority rights. In any event, probationary employees would always have less seniority than permanent employees.
[3] "Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." Fed.R.Civ.P. 24(a)(2).
[4] As noted, in approving the settlement, the Magistrate Judge relied upon evidentiary submissions, including two expert declarations that it described as not only unrebutted but also unchallenged. However, appellants have had no opportunity to take discovery, including the depositions of the experts. We also note that at least one reason the declarations were unrebutted and unchallenged was that they were served some weeks after objections were due and only days before the fairness hearing. In fact, one declaration was sent to the court via Federal Express only two days before the hearing.
[5] In response to a question at oral argument, counsel for the government argued that if an appellant were in the future to lose a desired transfer, that appellant might challenge the legality of the Agreement at that time. In a post-argument letter, the government withdrew from that position.

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 U.S. v. New York City Bd. of Educ., Not Reported in F.Supp.2d (2002)

2002 WL 31663069 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
UNITED STATES of America, Plaintiff, v.
NEW YORK CITY BOARD OF EDUCATION, City of New York, William J. Diamond, Commissioner,
New York City Department of Citywide Administrative Services (in his official capacity),
and New York City Department of Citywide Administrative Services, Defendants, and
John Brennan, James G. Ahearn, and Kurt Brunkhorst, Intervenors.
John Brennan, James G. Ahearn, Kurt Brunkhorst, Ernie Tricomi, Scott Spring, Dennis Mortensen, John Mitchell, and Eric Schauer, Plaintiffs, v. John Ashcroft, Ralph Boyd, United States Department of Justice, New York City Board of Education, City of New York, New York City Department of Citywide Administrative Services, and William J. Diamond, Defendants.
Nos. 96–CV–374 (FB)(RML), 02–CV–256 (FB)(RML). | Nov. 26, 2002.
Synopsis Background: United States brought action under Title VII against school board alleging discriminatory hiring practices. White male employees intervened, 260 F.3d 123.
Holding: On male employees’ motion for preliminary injunction, the District Court, Block, J., held that permanent status and retroactive seniority provisions of settlement, allegedly in violation of white male employees’ rights under equal protection clause, did not constitute irreparable harm.
Motion denied.
Attorneys and Law Firms
Ralph F. Boyd, Jr., Esq., Assistant Attorney General, by John M. Gadzichowski, Esq., Charles E. Leggott, Esq., Jodi B. Danis, Esq., United States Department of Justice, Washington, DC, for Plaintiff.

Michael D. Hess, Esq., Corporation Counsel for New York City, by Norma A. Cote, Esq., Assistant Corporation Counsel, New York, NY, for Defendants.
Michael E. Rosman, Esq., Center for Individual Rights, Washington, DC, George W.C. McCarter, Esq., McCarter & Higgins, Shrewsbury, NJ, for Intervenor–Plaintiffs.
Opinion
MEMORANDUM AND ORDER
BLOCK, District Judge.
*1 On July 24, 2002, Magistrate Judge Levy issued an order denying the motion for a preliminary injunction made by intervenors in United States v. New York City Bd. of Educ., 96–CV–374 (“1996 case”) and a report and recommendation (“R & R”) denying the preliminary injunction motion made by plaintiffs in Brennan v. Ashcroft, 02–CV–0256 (“2002 case”). The order and the R & R were consolidated in one decision (“R & R”). Familiarity with the R & R is presumed. The movants have filed timely objections to the R & R. For the reasons set forth below, the order is deemed part and parcel of the R & R, which the Court adopts.
BACKGROUND
Magistrate Judge Levy’s thorough decision sets forth the relevant background and procedural history in these cases. See also United States v. New York City Bd. of Educ., 85 F.Supp.2d 130 (E.D.N.Y.2000), rev’d and remanded, Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 132–33 (2d Cir.2001). Briefly, the 1996 case involves a suit brought by the United States in 1996 against the New York City Board of Education, the City of New York, the New York City Department of Citywide Administrative Services and its commissioner William J. Diamond (collectively, the “Municipal Defendants”) alleging a pattern or practice of intentional discrimination against blacks, hispanics, women and Asians under Title VII (42 U.S.C. § 2000e–6). The parties reached a settlement in 1999 (“Settlement”), which required, inter alia, that the Municipal Defendants provide retroactive seniority to 54 members of this group (collectively “Offerees”), and permanent civil service status to 43 of the Offerees.
In May of 1999, white male incumbent Custodians John Brennan, James Ahearn, and Kurt Brunkhorst (“intervenors”) moved to intervene as of right pursuant to
1

U.S. v. New York City Bd. of Educ., Not Reported in F.Supp.2d (2002)

Fed.R.Civ.P. 24(a)(2) in the 1996 case, seeking to challenge the retroactive seniority provisions of the Settlement. They claimed that the Settlement unconstitutionally affected their interest in “equal treatment and nondiscrimination.” (Reply Br. in Support of Mot. to Intervene at 2). Magistrate Judge Levy denied the intervention motion. The intervenors appealed to the Second Circuit, which vacated Magistrate Judge Levy’s order and remanded with instructions that the intervenors be allowed to intervene; the remand was based on the circuit court’s holding that the intervenors had a cognizable interest in the 1996 case. See Brennan, 260 F.3d at 132–33. Notably, although Magistrate Judge Levy had assumed jurisdiction for all purposes based on the explicit consent of the original parties in the 1996 case pursuant to 28 U.S.C. § 636(c)(1), see Brennan, 85 F.Supp.2d at 135, the circuit court did not address the issue of whether by reason of their appeal the intervenors were deemed to have consented to the magistrate judge’s jurisdiction.
In January of 2002, the intervenors in the 1996 case and five other white, male incumbent Custodians (collectively “plaintiff-intervenors”), filed the 2002 case, a collateral action in which they allege that the permanent status and retroactive seniority provisions of the Settlement violated their rights under the equal protection clause and Title VII. In February 2002, they moved for a preliminary injunction in both the 1996 and 2002 cases, seeking an order barring reliance on the benefits given to the Offerees under the Settlement for any future competitively distributed job benefits. On April 22, 2002, the Court referred the matter to Magistrate Judge Levy for an R & R.
*2 Magistrate Judge Levy denied the preliminary injunction motion in the 1996 case and recommended denial of the motion in the 2002 case because he concluded that the movants had failed to establish irreparable harm. The magistrate judge based this conclusion largely on two factors: first, that the movants’ “significant delay in seeking a preliminary injunction undermines their claim that the harm they allege is irreparable,” R & R at 11, and second, that the movants “cannot show that the injur[ies] they would suffer [are] incapable of being fully remedied by money damages.” Id. at 15.
In their objections, the intervenors argue that Magistrate Judge Levy improperly characterized his decision as an “order” in the 1996 case because they never explicitly consented to his jurisdiction. On the merits, plaintiff-intervenors argue that they are entitled to a preliminary injunction by reason of irreparable injury because: 1) they allege an equal protection violation, which constitutes irreparable injury; 2) their potential injuries are incapable of being remedied by money damages because they “ ‘may well find it impossible to

reconstruct’ whether [they] had been harmed by the benefits provided to the Offerees,” and 3) they intend to apply for openings and transfers, which they may be denied as a result of the Settlement. As to delay in making the motion, the intervenors argue that they could not have moved for a preliminary injunction earlier because Magistrate Judge Levy had denied them the right to intervene.
DISCUSSION
Once objections are filed to a Magistrate Judge’s R & R, the district court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. See 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989).
I. Magistrate Judge Levy’s Order in the 1996 Case Is Reviewable as an R & R Although Magistrate Judge Levy deemed his denial of a preliminary injunction in the 1996 case an “order,” the Court agrees with the intervenors that in the absence of their explicit consent, they should not be subject to Magistrate Judge Levy’s jurisdiction. See 28 U.S.C. § 636(c)(1) (requiring consent of parties before magistrate judge may exercise jurisdiction over case); New York Chinese TV Programs, Inc. v. U.E. Enter., Inc., 996 F.2d 21, 23–25 (2d Cir.1993) (holding that consent of all parties, including intervenors, is required before magistrate judge has jurisdiction over case). Such consent may not be inferred from conduct. See id. (noting that consent must be in writing and cannot be inferred from conduct; “Consent of all parties must be clear and express.”) (citing Hall v. Sharpe, 812 F.2d 644, 647 (11th Cir.1987) (consent cannot be inferred from the conduct of parties); E.E.O.C. v. West Louisiana Health Servs., Inc., 959 F.2d 1277, 1281 (5th Cir.1992) (consent to trial by magistrate judge under § 636(c) cannot be implied)). The Court will therefore review the order and R & R as one collective R & R, pursuant to Fed.R.Civ.P. 72. See id. at 25 (“Without the consent of the ‘intervenors’, the magistrate judge’s order has the effect only of [an R & R] to the district judge....”).
II. Plaintiff–Intervenors Have Failed to Establish That They Would Suffer Irreparable Harm in the Absence of a Preliminary Injunction *3 Ordinarily, “a party seeking a preliminary injunction must demonstrate (1) that it will be irreparably harmed in the absence of an injunction, and (2) either (a) a
2

U.S. v. New York City Bd. of Educ., Not Reported in F.Supp.2d (2002)

likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of hardships tipping decidedly in its favor.” Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 149 (2d Cir.1999). As Magistrate Judge Levy noted, a preliminary injunction is an “extraordinary ... remedy” that should not be granted routinely. Twentieth Century Fox Film Corp. v. Marvel Enterp., Inc., 277 F.3d 253, 258 (2d Cir.2002).
The Court need not address plaintiff-intervenors’ objections to Magistrate Judge Levy’s consideration of the timeliness of their motion because the Court concludes that, in any event, the alleged constitutional violation does not constitute irreparable harm and plaintiff-intervenors can be compensated for any alleged injuries with monetary damages.1

1

The Court notes that “[o]ne exception to the ordinary

standard is that, where a preliminary injunction is

sought against government action taken in the public

interest pursuant to a statutory or regulatory scheme,

the less-demanding ‘fair ground for litigation’ standard

is inapplicable, and therefore a ‘likelihood of success’

must be shown.” Forest City, 175 F.3d at 149. Because

the Court concludes that there is no irreparable harm,

the Court need not determine whether this exception is

applicable here.

As Magistrate Judge Levy aptly explained, though irreparable harm is presumed in the context of certain alleged constitutional violations, see, e.g., Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.1996) (“the denial of the plaintiff’s right to free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily”), “courts are loathe to grant preliminary injunctions in employment cases” in the absence of first amendment violations. R & R at 18; see Sampson v. Murray, 415 U.S. 61, 89–92, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (holding that injuries generally associated with discharge from employment—loss of reputation, loss of income and difficulty in finding other employment—do not constitute “irreparable harm”); American Postal Workers Union, AFL–CIO v. United States Postal Service, 766 F.2d 715, 721 (1985) (“[E]xcept in a ‘genuinely extraordinary situation,’ irreparable harm is not shown in employee discharge cases simply by a showing of financial distress or difficulties in obtaining other employment.”) (quoting Sampson, 415 U.S. at 92 n. 68); Shady v. Tyson, 5 F.Supp.2d 102, 109 (E.D.N.Y.1998) ( “Irreparable injury [in employment cases] can only be established by a clear demonstration that the plaintiff (1) has little chance of securing future employment; (2) has no personal or family resources; (3) has no private unemployment insurance; (4) is unable to finance a loan privately; (5) is ineligible for

public assistance; and (6) there are no other compelling circumstances weighing heavily in favor of interim relief.”) (citing Williams v. State Univ. of N.Y., 635 F.Supp. 1243, 1248 (E.D.N.Y.1986)).
Plaintiff-intervenors do not cite to any case standing for the proposition that an alleged equal protection violation in the employment context constitutes irreparable harm; they rely on two cases outside the employment context, neither of which can be read to hold, as plaintiffs suggest, that the mere incantation of an equal protection violation gives rise to irreparable harm: Able v. United States, 88 F.3d 1280, 1288 (2d Cir.1996) and Brewer v. West Irondequoit Central Sch. Dist., 212 F.3d 738, 744 (2d Cir.2000).
*4 Able did not involve an alleged violation of equal protection; it involved a challenge by gay and lesbian members of the armed forces to the constitutionality of 10 U.S.C. § 654, the popularly termed “Don’t Ask, Don’t Tell” policy governing the participation of homosexuals in military service, as violative of their First Amendment right to free speech. As the Able court noted, the Supreme Court has held “that even minimal impairments on [the right to free speech] create irreparable injury.” 88 F.3d at 1288 (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). There is no claim of impairment of free speech rights in the present case.
In Brewer, which involved an action under Title VI and the equal protection clause brought by parents of a white student who was denied a transfer from her city school to a suburban elementary school on the basis of her race, the court did recognize that an alleged equal protection violation could, under certain circumstances, constitute irreparable harm:
while it may be true that the majority of cases in which we have based an irreparable harm finding on the alleged deprivation of a constitutional right have arisen in the First Amendment context, we have also found irreparable harm in the allegation of Fourth Amendment violations ..., and Eighth Amendment violations.... Therefore, to the extent that defendants suggest that only alleged First Amendment violations give rise to constitutional claims for which monetary compensation would be insufficient, this is clearly incorrect.
Id. at 744–45.
3

U.S. v. New York City Bd. of Educ., Not Reported in F.Supp.2d (2002)

However, the injury caused by the alleged equal

protection violation in Brewer was distinct from the types

of injuries the plaintiff-intervenors allege they will suffer.

In Brewer, the Second Circuit emphasized the “unique

and somewhat outrageous facts of [the] case” and that the

injury would be suffered by a fourth-grader, whose

education would be irrevocably affected. Id. at 745. Such

an injury would clearly be impossible to adequately

compensate with monetary damages. Here,

plaintiff-intervenors allege employment-related economic

injuries, the types of injuries long ago held insufficient to

warrant the extraordinary relief of a preliminary

injunction. See Sampson, 415 U.S. at 89–92. The injury

suffered by a fourth grader who is kept out of a preferred

school is sufficiently distinct from the

employment-related

injuries

alleged

by

plaintiff-intervenors

As to the impracticality of measuring damages, plaintiff-intervenors have failed to establish that this is the type of extraordinary case where employment related injuries are impossible to compensate. See American Postal Workers Union, 766 F.2d at 721. The Court agrees

with Magistrate Judge Levy’s conclusion that “movants can be adequately compensated by monetary damages and other post litigation relief....” R & R at 20; see Twentieth Century Fox Film Corp., 277 F.3d at 258 (“[W]hen a party can be fully compensated for financial loss by a money judgment, there is simply no compelling reason why the extraordinary equitable remedy of a preliminary injunction should be granted.”). The Court also agrees with Magistrate Judge Levy’s notation that the likelihood of injury is attenuated since plaintiff-intervenors “state that they intend to apply for transfers at some undetermined time in the future.” R & R at 13.
CONCLUSION
*5 Magistrate Judge Levy’s decision is adopted.
SO ORDERED.
	  

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