Hiring Decree

[hudson144 150]

OHIO: RACE DISCRIMINATION – CITY OF CLEVELAND AND ITS FD HAVE

SHOW GOOD FAITH IN SEEKING 33 1/3% MINORITY GOAL - CONSENTDECREES

FROM 1977 AND 1984 ARE TERMINATED BY FEDERAL DISTRICT

JUDGE

On August 20, 2009, in Cleveland Fire Fighters For Fair Hiring Practices, et al v. City of

Cleveland

, 2009 U.S. Dist. LEXIS 74221, U.S. District Judge Donald Nugent terminated the

consent decree, based on the good faith efforts to date and assurances by the City of Cleveland

that they will continue to seek to meet the goal of 33 1/3% minority firefighters.

The Court described the progress made by the city since the first lawsuit was filed on April 3,

1973:

“In the 1970s, when the Consent Decree was first put into place, blacks accounted for a

mere 4% of the firefighters in the City's Fire Department, but consisted of 40% of the

population living in the City. The evidence presented in this matter before the two

District Court Judges preceding the undersigned District Court Judge reflected that the

hiring practices and statistical disparities of the 1970s caused a near total absence of

opportunity for minorities in the City's Fire Department. Hence, at that time, the Consent

Decree was implemented as a temporary measure, designed to remedy the then-present

and past discrimination. This nation, and the City of Cleveland, have come a long way

since then.”

In 1975, Federal Judge Krupanky found that the city had unlawfully discriminated against

minorities for the FD, and he issued the following order in Headen v. City of Cleveland

, No.

C73-330 (N.D. Ohio Apr. 25, 1975):

“NOW IT IS THEREFORE ORDERED THAT:

The Defendants and each of them, their agents, employees and all persons in action,

concert or participation with them shall refrain from appointing any new firefighters to

the Cleveland Fire Department until such time as there is presented to this Court, and

approved by this Court:

1. An entrance examination which is demonstrably job-related in a manner

consistent with EEOC Guidelines on Employment Selection Procedures;

2. A plan for the concentrated recruitment of minority candidates to take such

examination, and all subsequent examinations;

3. A method whereby residents of the City of Cleveland shall be awarded bonus

points for their residency on all future examinations in the same manner as is

presently being done for the Cleveland Police Department;

4. Revised screening procedures (background, psychological, psychiatric, etc.)

such as are job-related, objective and non-discriminatory, to be utilized as part of all

future entrance examinations for the Fire Department.

IT IS FURTHER ORDERED that following the development of, and approval by the

Court of a new entrance examination, that all subsequent examinations shall be

demonstrably job-related in a manner consistent with the EEOC Guidelines on

Employment Selection Procedures.”

In 1997, the city and the plaintiffs then entered into a Consent Decree in 1977, and an Amended

Consent Decree in 1984: each Consent Decree had a goal of 33 1/3% minority firefighters.

In September, 2008 the city filed a motion for an extension of time until 2014 to reach this 33

1/3% goal. It advised the court of a “perfect storm” of events beyond its control, including the

DROP retirement program:

“The factors cited by the City include:

• November 1998: Fire entrance examination held.

• September 1999: The 1999 fire eligibility list established.

• September 2000: Court orders the 1999 Fire eligibility list "reconstituted"

and orders that the Headen ratio for hiring be one minority for every two

Caucasians hired. Court also extends Fire eligibility list until September

2002.

• October 2000: Fire eligibility list reconstituted as ordered by the Court.

• October 2000: 74 cadets assigned to the Fire Training Academy.

• February 2001: 57 cadets assigned to the Fire Training Academy.

• November 2001: Prospective candidates offered conditional letters of

appointment to participate in the Fire Training Academy. However, no

Fire Training Academy was held.

• September 2002: The 1999 Fire eligibility list expired.

• October 2002: 52 Prospective candidates notified that, despite expiration of

eligibility list, the prior conditional offer of employment preserves their

opportunity for consideration in the next Fire Training Academy under the

holding of FOP v. City of Cleveland.

• 2003: The Ohio Police & Fire Pension Fund establishes the DROP program

for members of Police and Fire Departments who are eligible to retire. The

DROP program allows Police and Firefighters who continue to work to

have the equivalent of their retirement benefits paid into a special account

that can later be withdrawn in installments or a lump sum. The program

requires a minimum three year commitment and is limited to eight years.

The net effect is that Police and Firefighters eligible to retire are given a

powerful incentive to remain working. As of June 30th of this year, 211

Cleveland Firefighters (all eligible to retire) are participating in the DROP

program.

• January 2004: 70 Firefighters (all hired from the 1999 eligibility list) are

laid-off due to severe budget crises. Division of Fire is reorganized

reducing the strength of the division from 976 to 906 members.

• January 2004 to April 2007: All Firefighters requesting return from lay-off

are re-hired to fill vacancies in the Division of Fire.

• March 2008 to September 2008: Division of Fire meets with Public Safety

and Civil Service to establish Fire Training Academy for the 2001

candidates and to plan for a 2009 Fire entrance exam to establish the

second eligibility list. Letters are sent in May 2008 to the 2001 candidates

to determine their interest in attending the next Fire Training Academy.

The trial judge concludes that the Consent Decree should be terminated:

“The history of this case makes clear that past injustices indeed existed in the City of

Cleveland with respect to the hiring of minority firefighters. However, the Court has

found that the City has made a good faith effort to comply with the remedy designed to

right those wrongs. The evidence demonstrates that it was not the City's lack of effort, but

rather circumstances beyond its control, that resulted in it falling short of satisfying the

goals in the Second Amended Consent Decree. Based upon the evidence relating to the

pending Motions, the Court finds that judicial monitoring is no longer a necessity.

Although some may argue that, absent Court intervention, the City may revert back to the

practices that gave rise to the original Consent Decree many years ago, there exists

nothing in the record to suggest discriminatory practices will resume. A review of the

City's good faith effort to comply with the Second Amended Consent Decree reflects that

the City currently has in place a foundation that will lead to increased minority

representation in the Fire Department once the economy allows for a more routine hiring

process to resume. Using a bona fide job-related examination that is nondiscriminatory

and continuing with its minority recruitment efforts, qualified minority candidates will

have continued success in the hiring process, and the Court is confident that diversity

within the Fire Department will continue.

In addition, while these Consent Decrees did not quite meet the arbitrary goals set by the

parties, they certainly created a framework that allows the City to establish a hiring

procedure and process that is nondiscriminatory and fair to ALL applicants -- thereby

assuring the citizens of Cleveland that the most qualified applicants are selected, and

assuring each candidate that he or she will be selected on the basis of merit, rather than

on a judicially-sanctioned race-based formula.

Based upon the foregoing, the City's Motion for Extension of Time to Comply with the

Headen Decree (ECF # 44) and the Vanguard's Motion to Extend the Terms of the

Second Amended Consent Decree (ECF # 45) are DENIED.

III. CONCLUSION

For the reasons cited herein, the City's Motion for Extension of Time to Comply with the

Headen Decree (ECF # 44) and the Vanguard's Motion to Extend the Terms of the

Second Amended Consent Decree (ECF # 45) are DENIED. This case is

TERMINATED.”

Legal Lessons Learned: The city’s good faith compliance with the Consent Decree has carried

great weight.

[hudson144 150]

Taken From the 30 year old westchester Decree-As stated in the decree on page 49 section XV. Jurisdiction- "At any time after 5 yrs subsequent to the date of entry of this Consent Judgement, any city or state defendant may move the court, upon (60) days notice to the other parties to this consent judgement, for DISSOLUTION of this consent judgement with respect to such defendant ; and in considering whether the consent judgement should be so DISSOLVED, the court will take into account whether that defendant has complied with this consent judgement and whether the objectives of the consent judgement have been ACHIEVED".

[hudson144 150]

Tonight i recieved the word that the long standing hiring decree for the Philadelphia Fire Department has been ordered by the courts to be disolved! Congrats go out to the members of the PFD for the battle and success in having the decree thrown out!!!

[KCRD 6]

Please do away with all of them.

[firecapt32 282]

Hudson sounds like you are one step closer--slow and steady wins the race so to speak.

[hudson144 150]

A well written article:

Less Diversity Is Needed in the Fire Service

Feb 1, 2010 By Kelly B. Jernigan

This commentary is in response to “A Matter of National Security” by Joseph B. Muhammad of the International Association of Black Professional Fire Fighters (IABFF) (Fire Commentary, September 2009). Wait, what? There is such a thing as the IABFF? Isn’t that what the International Association of Fire Fighters (IAFF) is for? The advancement of firefighters? Not black firefighters, not white firefighters, not female firefighters, not Hispanic firefighters, but FIREFIGHTERS? Aren’t we all one in this profession?

After reading the article during lunch, I continued my daily duties at the firehouse, which included training. During training on a new piece of equipment, I ended up at the computer looking up technical specification questions that arose with our hands-on ventures. I did not find what I was looking for, but my search endeavors led me to the forums on the Fire Engineering Web site (www.fireengineering.com) regarding discrimination in the fire service. The topic was not as popular as I originally thought. I was expecting an infinite number of search results written by anyone who had an opinion on racism and diversity. However, very few of these articles were of any relevance to the fire service.

In the forums, I discovered the same type of promotional test controversy in Houston, Texas. I searched for the case and found the article “7 Black Houston Firefighters Sue, Say City Exam Biased.” Similar to the New Haven 20 case, Dennis Thompson, the lawyer for the black firefighters in Houston, argued the tests were unfair. “Firefighters trying to attain the rank of captain and above in the Houston Fire Department must take a 100-question multiple-choice test. Numerous studies show that blacks as a group do less well on high-stakes tests,” Thompson said. He also stated, “Fire departments should use cognitive tests only as a pass-fail benchmark and also should focus on performance exercises and other criteria.” (Carolyn Feibel, Houston Chronicle, February 6, 2009)

Captain Otis Jordan, president of the Houston Black Firefighters Association (HBFA), said, “We don’t do as well on these multiple-choice tests.” He also stated, “I compare fighting a fire, riding an apparatus, to playing football. Your best athlete might not be the straight-A student.” Statements such as these say to me Jordan believes black firefighters are not as intelligent as those of other races. It sounds like these lawyers and black firefighter associations are trying to prove their point by making their own race look bad. The HBFA was not affiliated with the lawsuit.

If I were black, I would be irate at this lawyer or this group for saying I am not smart enough to take the same test as other races. I know if I were involved in a female coalition and it represented me with this argument, I would definitely ask for my dues back.

I agree there are credible accusations and incidents of discrimination, many of which aren’t officially stated or do not make it past the initial grievance procedure. Some of these situations fall into the same category as the New Haven 20 “reverse discrimination” lawsuit, and the individuals involved don’t have the money or the time to challenge city government. They would rather go on and do their jobs as firefighters and hope things are improved by someone high enough wanting to do what is right for the department.

Enough on the discrimination issue. I had to finish some things around the station, eat supper, and do the daily rituals before calling it a “workday” at the firehouse. Still, I couldn’t get this situation out of my mind. After many long hours pondering the subject of the New Haven 20, Houston, and even my own fire department, I have come to this conclusion: We need less diversity in the fire service.

Yes, I said it, less diversity. Let me explain. In my mind there are two types of people in the fire service—there are firefighters and there are people who work for the fire department.

FIREFIGHTERS

Firefighters are people of all races, religions, walks of life—male and female—who live their lives for the fire service. They are the people who dreamed their whole lives about becoming firefighters or have been introduced to the lifestyle and fell in love with it. Firefighters are the ones who take the extra initiative to produce and conduct training, constantly learn new things about the fire service, and make suggestions on how to make the job safer and more efficient. Firefighters are the ones who worry about brotherhood and watching out for their fellow firefighters at all costs. Firefighters are the ones you want beside you when it hits the fan deep inside a building, when you are searching for the small child or elderly person and the smoke, heat, and fire are banked down so low it feels like your body is going to melt. Firefighters will be there with you until the end.

Firefighters, when deciding to advance up the career ladder, will study promotional materials during every spare moment. They prepare for the tests, and most do well. But if they don’t, they blame no one but themselves, knowing that even though they may not be good test takers, they should have prepared more and studied harder. And by doing this, the next time they will do better.

Even as chiefs or company officers, it shows if your heart is in the fire service. Chiefs and company officers whose first love is the fire service are the ones who know the fire department is unlike any other department in the city. The fire department doesn’t bring in as much revenue as the police department or Collections, but it is a necessity.

Fire officers who fall into this category are not afraid to ask for what their people need. They are not afraid to be the rogue avengers, to take on the city managers and convince them what the department needs to be the best and the safest. They are the ones worried about the times when we have to make split-second decisions and knowing they are the right decisions, not about the things that we can go back and look up while sitting behind a desk.

FIRE DEPARTMENT EMPLOYEES

On the other hand, you have the people who work for the fire department. These are people who saw the ad in the paper for the fire department agility test and decided maybe working for city government would be better than working at a fast food restaurant. Fire department employees are also people of all races, religions, and walks of life—male and female. These are the employees who arrive at work at the last minute, abuse sick time, and never read or study to better themselves. They are the ones who do just enough to get by. They can usually quote verbatim the policies and procedures because they often use them to their advantage to see what they can get away with doing or not doing.

Officers who are fire department employees are the ones who are more worried about proper supervisory methods and how to do paperwork. While these tasks are extremely important and must be mastered, learning how to operate efficiently and aggressively on the fire scene, in my opinion, is an art that must be learned first and foremost. We have all seen the type—officers who are great at doing administrative duties and paperwork but on the emergency scene are ineffective to the point of being inept. They are the ones who look good in the administration’s eyes because they never want to rock the boat. They never want to go against the grain to offer any new suggestions, even if those suggestions are for life safety. These officers will never stick their necks out and have to be on the defensive or give justification for having to go against policy for doing what it took to save a life.

WHICH ONE ARE YOU?

When you meet people in the fire service, you can talk to them for about 10 minutes and tell if you are talking to firefighters or people who work for the fire department. You can tell if they are genuinely interested in taking the promotion to better themselves along with hopes of bettering the department or if they are just interested in the status and the pay raise that come with the promotion.

To put it in perspective, look around at some of the females in the fire service. I use this analogy because I can’t be labeled as prejudiced if I talk about my own kind, right? Are they firefighters or just females who work in the fire department? When the alarm comes in, do they have that “Let’s go get it, guys” attitude, or do they kind of hang back, hoping someone will take the lead? Are they the drivers who, when the announcement comes over the radio, “Smoke and heavy flames visible,” you hear the engine brake kick in, or are they the ones the officer has to call into the office after returning from the call and tell them, “Slow down, we can’t do anything if we don’t get there”? Do they expect and demand to have separate quarters all their own, or do they strive to be one of the guys? Do they become sensitive when the word “fireman” is used instead of “firefighter,” or is that how they introduce themselves, only to be corrected by the public?

A firefighter who happens to be a female is the one who doesn’t care about special treatment. She expects and demands to be treated equally—not better, equally.

You can talk to Blacks, Hispanics, and all the other races and tell the same. Black and Hispanic firefighters are no different from any other firefighters. They love the job. They are firefighters first and foremost.

It’s the same situation no matter who you are. It may be different in general industry, but as much as we preach diversity, understanding differences, and equal opportunity, it all boils down to one thing in the fire service: Are you a firefighter or just someone who works for the fire department?

THE PERFECT WORLD

Imagine working for a department with all firefighters. Very few disciplinary procedures would be needed. If there were discipline, it would be for a minor infraction such as broken glass at the station from friendly horseplay. Everyone on the fire scene would know what they are supposed to do without being told, and they would know how to do it.

We would have chiefs who are looked up to by everyone because they would be in that position because they deserve it, not because they know how to dress up a resume. They would not be afraid to take on the budget committees and city councils to get the money their firefighters need to be the best fire department in the state instead of thinking it will make them look good if they can turn in extra money at the end of the year.

We would promote based on validated test scores, time in service, work ethics, past appraisals, and coworker recommendations. Promotions would not be based on diversity quotas or a friend taking a good friend to the top. In return, once people realize how promotions work in the department of firefighters, and if they wanted to be promoted, they would step up and produce all year, not just around promotion time. This is the reason we need to join together and express our desires to hire and promote individuals who are not only good employees but who are great firefighters or who are the type of officers we want to work for or strive to be like. Let’s do away with hiring employees and start hiring people who genuinely want to be firefighters.

So next time you’re thinking of becoming a member of an ethnic or gender-specific organization so you can get help with screaming, “I didn’t get promoted because of my color, gender, ethnicity, or religion,” think about what class you represent. Are you a firefighter, or do you just work for the fire department?

Kelly B. Jernigan is a 19-year veteran of the fire service and a captain on Winston-Salem (NC) Fire Department Truck 2. She is a former deputy chief and training officer with the South Lexington (NC) Volunteer Fire Department. Jernigan is a level II fire service and live burn instructor for the North Carolina Fire and Rescue Commission. She is a certified hazardous materials specialist and a rescue technician rope specialist. She was also the fire and rescue coordinator for Davidson County Community College for 10 years and has an associate degree in computer programming.

[hudson144 150]

Taken From the 30 year old westchester Decree-As stated in the decree on page 49 section XV. Jurisdiction- "At any time after 5 yrs subsequent to the date of entry of this Consent Judgement, any city or state defendant may move the court, upon (60) days notice to the other parties to this consent judgement, for DISSOLUTION of this consent judgement with respect to such defendant ; and in considering whether the consent judgement should be so DISSOLVED, the court will take into account whether that defendant has complied with this consent judgement and whether the objectives of the consent judgement have been ACHIEVED".

ITS TIME HAS COME!

[M' Ave 1,466]

ITS TIME HAS COME!

Has it? What's the story?

[hudson144 150]

Three decree's disolved in about 7 months? More to follow???

White cops get say in decades-old discrimination case

Michael P. Mayko, STAFF WRITER

Published: 01:07 p.m., Wednesday, April 28, 2010

A federal appeals court Tuesday allowed a group of white Bridgeport police officers to be heard on a proposed order to settle a 32-year-old racial discrimination case brought by black officers against the department.

It also gives the officers the ability to challenge any court action in the order that impacts their future by allowing Bridgeport to adjust promotion exams that are believed to discriminate against blacks.

But the 2nd Circuit Court of Appeals panel in New York City -- consisting of Judges Jose A. Cabranes, a former chief district judge in Connecticut; Barrington D. Parker, who sits on several Yale University boards; and U.S. District Judge Carol Amon of Brooklyn, N.Y. -- didn't stop there.

The panel questioned why the 32-year-old Guardians case, which resulted in the federal court overseeing operations of the Bridgeport Police Department's dealings with black officers, is still active.

Parker, in a strongly worded final paragraph, writes: "this case was filed in 1978 ... the world has turned over many times since then. Except in highly unusual circumstances, it is the business of cities, not federal courts or special masters, to run police departments. At some point in time, this litigation has to be ended."

The panel then expressed confidence that U.S. District Judge Janet Bond Arterton, who is presiding over the case, "will look hard for that point."

"This is a poster case for so-called reform litigation run amok," said Karen Lee Torre, a New Haven lawyer who obtained intervention for Bridgeport Police Officers Todd Hoben, Jorge Cintron, David Garcia, Mark Belinkie, Mark Graham, Martin Henue, William Reilly and James Borrico, and for Kurt Hoben, who is applying for a police officer position.

"This ruling is another positive step toward ending a racket that has gone on for decades and siphoned off millions of taxpayer dollars, all squandered on lawyers and 20 years of payments to the judge's appointed special master, an arrangement the legality of which I look forward to challenging."

This ruling comes on the heels of last summer's U.S. Supreme Court decision overturning a federal judge's decision allowing New Haven to retest fire department lieutenant and captain candidates because no blacks scored high enough to be promoted.

There are some similarities. Arterton is the presiding judge in the Guardians' case and the New Haven firefighters case while Torre represented the successful white candidates in both.

The Supreme Court decision also led to Bridgeport settling a reverse discrimination suit brought by 12 white firefighters, who challenged the rescoring of a 2007 fire lieutenant's exam, which knocked several out of possible promotions.

The Bridgeport Guardians, a group of black police officers, sued the city and its police department in 1978 claiming racial discrimination of black officers. Following a trial, Chief U.S. District Judge T.F. Gilroy Daly, now deceased, found widespread discrimination in terms of the assignment, promotion and discipline of black officers. He appointed William Clendenen, a New Haven lawyer, as a special master to oversee the treatment of black officers within the department.

Over the decades, Clendenen conducted numerous hearings and wrote several rulings critical of the department and its management. Damages, as well as Clendenen's fees, were paid by Bridgeport. A $900,000 fine was imposed against the city for violating court orders, but never paid.

"Throughout this period, the only constant has been that the police department ... has been run under the supervision of a federal court and its special master," Parker wrote.

But times have changed. The ruling points out that 15 percent of the supervisors today are black and 32 percent are minorities as compared to 1983, when all supervisors were white. Additionally, two blacks served as police chief in the past decade.

"The substance of the 2nd Circuit's ruling is an encouraging sign of an end to this protracted litigation," said Betsy Edwards, an associate city attorney. "The presence of the intervening officers in the remaining stages of this case will assist the Department in moving forward with a shared sense of unity. The city shares the 2nd Circuit's belief that `the business of running police departments is not properly left to federal courts and special masters,' and is confident that the progress that the department has made over the past year will continue and will justify the long overdue conclusion of this federal oversight."

Antonio Ponvert, the Guardians' lawyer, could not be reached for comment Tuesday.

Following a four-hour hearing on Aug. 6, 2008, Arterton accepted a proposed order to end the case, which includes returning authority to the chief in assigning officers to geographical areas, filling 50 percent of the vacancies in specialized units and hearing complaints of racial discrimination.

However, Arterton retained oversight of the order's implementation.

[RWC130 594]

The "Decree" is Discrimination!

Buh-Bye!

[FirNaTine 370]

The Decree put the Fire Service where it is today, in the gutter! Thank all the bleeding heart Liberals of Society.

[hudson144 150]

Sources tell me that a lawsuit has been filed recently to "Dissolve" the 30 year old Vulcan Decree that governs the hiring within the Mount Vernon Fire Department. Within the past 8 months 3 similar decrees have been thrown out. I feel that this issue will be watched carefully by many. It has done its job for minority hiring as ordered by the court 30 yrs ago.

Edited May 17, 2010 by hudson144

[hudson144 150]

Members of FDMV have retained an attorney to request the 30 yr old Vulcan decree be dissolved. The 50 + members feel that the decree has been satisfied and that the courts should legally decide if the decree should still be in place. To intervene for the purpose to terminate the 1980 decree will help achieve race neutral hiring and promotional practices. Some members could not jump on board in fear of retaliation for future promotions and hiring of other family members. A jun2 court date in Foley Square has been set.

[M' Ave 1,466]

Well done FDMV. This is truly another step in the right direction! Well done and lets all hope that the courts decide in favor of merit!

[hudson144 150]

INTERESTING READING FROM THE EEOC.

Retaliation

All of the laws we enforce make it illegal to fire, demote, harass, or otherwise "retaliate" against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).

For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred.

Retaliation & Work Situations

The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Edited June 12, 2010 by hudson144