In the days leading up to Hurricane Sandy,there was universal agreement amongweather forecasters that this massive storm

rumbling up the Atlantic coast had the potential to be amajor disaster. In truth, no one could have predictedthe catastrophic damage that Sandy delivered to NewYork City and the metropolitan area. The 911 systemcould not handle the volume of calls from NewYorkersin need of emergency help. When the sun came up onTuesday it was startling to see that the entire New YorkMetropolitan area was devastated.

During the two-day hurricane of October 29thand 30th, and its aftereffect that changed the face ofcommunities, firefighters effectuated tens of thousandsof responses ranging from major fires, water rescues oftrapped civilians, ruptured gas lines, transformer explo-sions, and countless urgent medical calls. FDNY fire-related call volumes soared to 25,000 across the city.Our members had to work through horrific conditions.

Although New York City Firefighters are fre-quently exposed to human tragedies, to find that yourhome, where you last saw your children, has beenwiped away or has eight feet of water inside, is quiteanother thing. FDNY members could not just stay

The Bravest OFFICIAL PUBLICATION OF THEUNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK

WWW.UFANYC.ORG VOl. XlVIII NO. 2, 2012

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President’s Messageby Stephen J. Cassidy

Continued on page 2

Santa arrived in Times Square for the annual Widows’ & Children’s Christmas Party at the Toys “R” Usflagship store on November 18th.

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home and prepare; instead, they went to work to protectthe lives and property for their fellow New Yorkers.

In the aftermath of the hurricane, four unionsrepresenting active FDNY members [UniformedFirefighters Association, Local 94; Uniformed EMTs,Paramedics & Fire Inspectors, Local 2507; UniformedEMS Officers Union, Local 3621; and Uniformed FireAlarm Dispatchers Benevolent Association] joinedtogether to announce the creation of the NewYork CityFirefighters Disaster Relief Fund Inc. This fund willhelp their active members who suffered catastrophicdamage and now need to rebuild their lives and homes.Application for 501(c) (3) tax-exempt status is pend-ing. One hundred percent of the donations from thisfund will help first responders rebuild their homes. Alladministrative costs will be shared per capita by thegeneral funds of each union. For more informationvisit: www.NYCFDDR.org or call 646-839-6535.

In the tradition of the Christmas season, theUFA was proud to host the annual Widows’ andChildren’s Christmas Party at the Toys “R” Us flagshipstore in Times Square on Sunday, November 18th. Wewish to thank CEO Jerry Storch and his staff at Toys“R” Us and Yankee infielder Robinson Canó for mak-ing this year’s party a success.

I wish each of you a very Merry Christmas anda happy NewYear. Please keep all victims of HurricaneSandy in your thoughts and prayers

As always, be safe!

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Continued from page 1

The Art of Labor Law.

Certilman Balin proudly represents the New YorkCity Uniformed Firefighters Association and manyother organizations in the metropolitan area. Wehave a solid track record in representing union

members in their personal litigation and life plans.Call Paul Linzer or Jennifer Bentley at

(516) 296-7000 to resolve your personal legalmatters with confidence.

Proven attorneys. Powerful advocates.Nassau: 516.296.7000 | Suffolk: 631.979.3000 |

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LERoy McGinnis, E-266, was elected UFARecording Secretary on July 16, 2012.Previously he served as UFA QueensTrustee since 2009.

NEW BOARD MEMBERS AT THE UFA

Gerard Fitzgerald, E-318, was electedUFA Sergeant-at-Arms/ Health & SafetyOfficer on October 9, 2012.

Eric Bischoff, E-161, was elected UFAStaten Island Trustee on October 9, 2012.

Matthew DesJardin, E-325, was electedUFA Queens Trustee on September 10,2012.

Photo Credits: Stephen N. Symbolik III

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November 18th marked tthat the UFAWidows’ & Cwas hosted by Toys “R” Uflagship store in Times Squby Yankee infielder RobinUFAHoliday Party Chairmmembers of the UFA Exec

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the 12th consecutive yearChildren’s Christmas PartyUs CEO Jerry Storch at itsuare. The UFAwas joinednson Canó, along with theman, John G. Kelly, Jr, andcutive Board.

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RREETTIIRREEDD FFIIRREEFFIIGGHHTTEERR SSEECCUURRIITTYY BBEENNEEFFIITT FFUUNNDD((RR..FF..SS..BB..FF..))

SSUUMMMMAARRYY OOFF BBEENNEEFFIITTSSEELLIIGGIIBBIILLIITTYYRetired Firefighters and Fire Marshals, who retired on or after January 1, 1971 (July 9, 1993 for Wipers), andtheir eligible dependents, including duly registered domestic partners and their dependents.

Retired Marine Engineers and Pilots as of January 1, 2012.

DDEENNTTAALL PPLLAANN FFOORR RREETTIIRREEEESS

CCHHAANNGGIINNGG DDEENNTTAALL PPLLAANNSSYou may change dental plans each year between October 15th and December 15th. Most plan changes takeeffect on January 1st.

UU..FF..AA.. SSEELLFF--IINNSSUURREEDD HHEEAALLTTHHPPLLEEXXRetiree is reimbursed in accordance with the R.F.S.B.F. Schedule of Fees. A dental form must be filled out.$1,500 Limitation per family member per calendar year. Orthodontic services for dependents under 19years of age only. Cosmetic dental treatment and implants are not covered.

HHEEAALLTTHHPPLLEEXX PPPPOOEffective July 1, 2010 members enrolled in Healthplex will have access to the Healthplex ParticipatingProvider Organization (PPO) panel. This panel has over 3,500 participating dentists who will provide servicesat a reduced fee schedule. You will only be responsible for the patient co-pays. $1,500 Limitation per fami-ly member per calendar year; exclusions apply. Cosmetic dental treatment and implants are not covered.

DDEENNTTCCAARREE PPRROOGGRRAAMMA pre-paid comprehensive dental program. Provides the necessary dental care, including orthodontics, at nocost to the member except for elective general anesthesia, porcelain with metal crown, abutment or pontic, $50co-pay per unit. Orthodontic services for eligible dependents under 19 years. Members must select a dentistfrom the DENTCARE panel of dentists. Cosmetic dental treatment and implants are not covered. Pleasenote that members may be charged additionally for porcelain crowns/abutments/pontics on posteriorteeth.

HHEEAALLTTHHPPLLEEXX AAMMEERRIICCAA 550000 -- FFLLOORRIIDDAA(This Plan Replaces Comp Benefits Fla.)Effective April 1, 2010, Retirees residing in Florida may elect Healthplex America Plan 500. This plan offersan open access network, with no need for pre-selection of a dental provider.

Members of the Healthplex America 500 dental plan are eligible to receive benefits immediately upon theeffective date of coverage with:•No waiting Periods•No Deductibles•No Claim Form to SubmitMembers can choose a participating provider at wwwwww..yyoouurrddeennttaallppllaann..ccoomm//hheeaalltthhpplleexx or call the MembersServices Department 888-200-0322.

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RR..FF..SS..BB..FF.. PPRREESSCCRRIIPPTTIIOONN DDRRUUGG PPLLAANNR.F.S.B.F. Prescription Drug Plan Administered by CVS/Caremark. Insulin (including oral agents) and dia-betes equipment and supplies are covered by ALL City Health Plans (NON-MEDICARE). Up front annualfamily deductible $125.

SilverScript Administers the Prescription Drug Plan for Medicare Members. See the information below thatis specific to Medicare Coverage.

PPAARRTTIICCIIPPAATTIINNGG PPHHAARRMMAACCYYOnce the deductible is met you will pay 35% of the cost of the drug with a minimum of $5 Generic/$20 Brand-name. Retirees can obtain up to a 30-day supply at a participating pharmacy.

CCuussttoommeerr SSeerrvviiccee DDeeppaarrttmmeenntt 11--886666--883322--00556633WWeebbssiittee –– wwwwww..ccaarreemmaarrkk..ccoomm

NNOONN--PPAARRTTIICCIIPPAATTIINNGG PPHHAARRMMAACCYYRetirees using non-participating pharmacies can obtain up to a 30-day supply and may be reimbursed up to aver-age wholesale price plus dispensing fee, minus co-pay. Up-front annual deductible of $125 must be met firstbefore co-insurance applies. Reimbursement claim forms can be obtained by calling CVS/Caremark at:1-866-832-0563.

AANNNNUUAALL FFAAMMIILLYY DDRRUUGG CCAAPP -- $$55,,000000

MMAAIINNTTEENNAANNCCEE DDRRUUGGSS // MMAAIILL OORRDDEERR ((UUPP TTOO AA 9900--DDAAYY SSUUPPPPLLYY))The mail service program is designed for individuals on maintenance medications for treatment of chronic,long-term conditions. If you or an eligible family member regularly takes medication for chronic long-termconditions such as arthritis, high blood pressure, heart conditions, etc., you may receive up to a 90-day supplyof maintenance medication through CVS / Caremark mail service pharmacy. NOTE: No deductible will berequired for prescriptions being filled at mail service and 35% of the cost of the drug still applies to mail orders.Deductible still applies to retail prescriptions.

The $125 deductible does not apply when using mail order. Co-insurance of 35% of the cost of the drug stillapplies as well as minimum for Generic and Brand-name.

PPIICCAAPlan administered by Express Scripts – This benefit is available to both Active and Retired members, as wellas their eligible dependents. (Once on Medicare, PICA will no longer be available). There is an annualdeductible of $100 per person for injectable and chemotherapy medications. This deductible is independ-ent of any other deductible.

PICA covers medications in two specific drug categories - Injectable and ChemotherapyInjectable – Most self-administered injectables.Chemotherapy – Medications used to treat cancerMedications used to treat the side effects of chemo

RReettaaiill PPhhaarrmmaaccyy ((UUpp ttoo aa 3300--ddaayy ssuuppppllyy))$10 generic$25 preferred brand (formulary)$45 non-preferred brand (non-formulary)*

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MMaaiill OOrrddeerr PPhhaarrmmaaccyy ((UUpp ttoo aa 9900--ddaayy ssuuppppllyy))$20 generic$50 preferred brand (formulary)$90 non-preferred (non-formulary

If you choose a non-preferred brand drug that has a generic equivalent you will pay the difference in costbetween the non-preferred brand drug and the generic drug PLUS the non-preferred brand co-payment.

Customer Service No. – 800-467-2006 or 800-233-7139Website – wwwwww..eexxpprreessss--ssccrriippttss..ccoomm

MMEEDDIICCAARREE

RREEIIMMBBUURRSSEEMMEENNTT FFOORR MMEEDDIICCAARREE PPAARRTT BBWhen you (or your spouse) become eligible for Medicare at age 65 or before 65 because you received SocialSecurity Disability, the City requires that you take Medicare Part A (Hospital) and Part B (Doctors).FAILURE TO DO SO COULD RESULT IN LOSS OF HEALTH COVERAGE. If you are in a HMO youmust notify your health care carrier that you are going on to Medicare. Example: HIP-Prime membersbecome HIP-VIP; Aetna members become Aetna Golden Medicare, etc.

If you are receiving a City pension check and both you and your spouse are enrolled in a City health plan,you will be reimbursed for your Medicare Part B by the City of New York. You should send the followinginformation to Employee Health Benefits

Make a copy of your Medicare card to show that you have both parts “A” and “B” and include the follow-ing information

•Birth dates for yourself and your spouse•Your retirement date•Your pension number•Name of your health plan•Name of your union

Send this information to:Office of Labor RelationsEmployee Health Benefits Program40 Rector Street - 3rd FloorNew York, NY 10006Attn: Medicare Division

If you are in an HMO (Example: HIP, AETNA, etc) you must inform your health carrier that you are going onMedicare due to forms that need to be filled out with your health provider.

MMEEDDIICCAARREE PPAARRTT DD PPRREESSCCRRIIPPTTIIOONN DDRRUUGG PPLLAANN –– SSIILLVVEERRSSCCRRIIPPTTEffective January 1, 2010 the R.F.S.B.F. purchased a Medicare Part D Prescription Drug Plan, SilverScript,for all retired members over 65 years old, as well as those who are on Social Security Disability. This alsoapplies to Medicare eligible spouse, dependent or domestic partner.

This Plan has an up front annual individual deductible of $100. After you pay your yearly deductible, youpay the following until you reach your initial coverage limit (for 2013, the limit is $2,970):•35% of the cost of the drug with a $5 minimum for Generics•35% of the cost of the drug with a $20 minimum for Brand-name

After you reach the initial coverage limit (for 2013, the limit is $2,970), SilverScript will continue to provideprescription drug coverage for some generics at the same co-payment/co-insurance until the yearly out-of-pock-et costs (also known as True Out-Of-Pocket or T.R.O.O.P. costs) reach a maximum amount that Medicare hasset. In other words, once you’ve reached the coverage limit, you will still pay 35% of the cost of a GENERICdrug, with a minimum of $5. For NAME BRAND drugs, you will pay 50% of the cost of the drug.

When you reach the T.R.O.O.P cost limit you qualify for Medicare Part D Catastrophic Coverage. For 2013,the T.R.O.O.P. limit is $4,750. After your yearly out-of-pocket costs reach the T.R.O.O.P cost limit you pay asmall co-insurance or co-payment. There is no annual “drug cap” or limit to this catastrophic coverage.

When you become Medicare eligible check with your health care provider to see if Medicare Part D drugs areprovided under their basic health plan. You CANNOT be enrolled in two Medicare plans. Some health plansstipulate that in order to remain in their health plan you must use their prescription drug plan e.g. HIP-VIP.

ONCE ON MEDICARE PICA WILL NO LONGER BE AVAILABLE

REMINDER – PLEASE PROVIDE RFSBF WITH A COPY OF YOUR MEDICARE CARD. ON THECOPY, ALSO WRITE DOWN THE NAME OF YOUR HEALTHCARE CARRIER (EXAMPLE HIP, GHI,AETNA, ETC)

NOTE: As soon as you or your eligible dependent(s) go on Medicare a copy of the Medicare Card MUST bemailed to the R.F.S.B.F. or if you prefer, fax it to 212-683-0693. You should also write down on the copy whatyour healthcare carrier is (for example, HIP, GHI, AETNA, etc.)

AADDDDIITTIIOONNAALL BBEENNEEFFIITT IINNFFOORRMMAATTIIOONN

NNOOTTIIFFIICCAATTIIOONN OOFF CCHHAANNGGEE IINN SSTTAATTUUSSThe Security Benefit fund must be informed of ANY changes in your status. For example:•When you get married, we need a copy of the marriage certificate.•When you become a new parent we need a copy of the birth certificate.•If you get divorced we need a copy of the first and last page of the divorce decree.•When a spouse dies we need a copy of the death certificate.•When you move please update your address with the SBF.If you wish to add or remove a Domestic Partner, please contact SBF for instructions. 212-683-4723.

To change your address with the NYC Fire Department, or to make changes for direct deposit, please callFDNY Pension and Payroll at 718-999-2327.

CCHHAANNGGIINNGG HHEEAALLTTHH PPLLAANNSSYou can change health plans every other year during the even numbered years (2012, 2014, 2016 etc). The usualtime to change is in November in order to take effect the following January. You may also change plans at anytime if you move out of your health plan service area. A change can occur outside the normal change period“Once in a lifetime.” If this option is used, you can only change during the allotted change over period, or ifyou move out of your service area.

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CCHHAANNGGIINNGG DDEENNTTAALL PPLLAANNSSYou may change dental plans each year between October 15th and December 15th. Most plan changes takeeffect on January 1st.OOPPTTIICCAALLOne eye exam and either one pair single vision, bifocal or contact lenses (subject to providers’ surcharges) forRetirees and eligible dependents EVERY TWO YEARS through optical provider panel Effective January 1,1999, maximum of $60 ($15-exam, $20-Frame, $25-Lenses, $45-Contact Lenses) reimbursed to Retiree ifother than provider(s) is used. All claims must be made within one year from date of service.To find aprovider, you can look online at: wwwwww..uuffaannyycc..oorrgg//sseeccuurriittyy__bbeenneeffiitt__ffuunndd//ooppttiiccaall__pprroovviiddeerr__sseeaarrcchh..pphhpp.

CCAATTAARRAACCTT LLEENNSSEESSR.F.S.B.F. allows up to $75 toward purchase after health plan (Medicare, etc.) has paid its portion. Send thepaid bill and health plan(s) Explanation of Benefits (EOB) to the R.F.S.B.F. office for reimbursement.All claims must be made within one year from date of service.

HHEEAARRIINNGG AAIIDDEffective January 1, 1999, Retiree is reimbursed up to $600 toward hearing aid (s) purchased in a five-yearp e r i o d upon referral of a physician or audiologist. Send the paid bill, a copy of the prescription and a copyof the audiologist report to the R.F.S.B.F. for reimbursement. All claims must be made within one year fromdate of service.

DDEEAATTHH BBEENNEEFFIITTNotification of a retired firefighter’s death is made to the NYC Fire Department by calling 718-999-2320 or718-999-2321. Retirees have a life insurance policy in the amount of $6,000 with the FDNY Life InsuranceFund. This is the $9 deduction on your earnings statement listed as Fire Life.

Members who have retired after January 1, 1971 have a death benefit with the Retired Firefighters SecurityBenefit Fund (RFSBF) in the following amountsUp to Age 49 $10,000Age 50 to 69 $ 5,000Age 70 and over $ 2,500A claim for this benefit will be sent to your beneficiary when we receive notification of death. Only the Retireeis covered for this benefit insured through the AIG Life Company. Payment is made to the designated primaryor contingent beneficiary of the eligible deceased Retiree upon submission of a completed claim form with acertified death certificate.

LLIIFFEE IINNSSUURRAANNCCEETo update your status or beneficiary, please contact Maria Zingone at 646-839-6503.

SSUURRGGIICCAALL AASSSSIISSTTAANNCCEE FFUUNNDDR.F.S.B.F. pays the yearly dues for Members who were part of the fund for two years prior to their retirement.You have one year to submit a claim. For information and to request the MD-35-1 application form call(718) 999-1252. If you have any questions or doubts, request the information and submit the proper forms induplicate to: UFA/UFOA Surgical Assistance Fund, 9 Metro Tech Center, Brooklyn, N.Y. 11201

YYOOUUNNGG AADDUULLTT DDEEPPEENNDDEENNTTSS uupp ttoo 2266 YYEEAARRSS ooff AAGGEEDue to a change in Federal Law, the Uniformed Firefighters Association Retired Firefighters Security BenefitFund (RFSBF) will provide benefits for your dependent children until the end of the month of their 26thBirthday. The RFSBF Benefits include Dental, Prescription Drugs, Optical and Hearing Aids. Student verifi-cation will no longer be necessary.

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If, however, there has been a lapse in your YoungAdult Dependent’s coverage and you wish to re-apply for cov-erage, you will need to fill out a YoungAdult DependentAttestation form. Call SBF for more information: 212-683-4723.

HHAANNDDIICCAAPPPPEEDD DDEEPPEENNDDEENNTTSSRetiree MUST notify basic health carrier when dependents become mentally or physically handicapped, priorto 26 years of age. Dependent must be unmarried, living at home and dependent upon retiree for support. Uponreceipt of the health carrier’s confirmation that the dependent is handicapped, R.F.S.B.F. coverage will be con-tinued while the criteria are met.

VVEESSTTEEDD RREETTIIRREEEESSIn order to be eligible to receive benefits of the Fund, a vested retiree must make a contribution equal to thatmade by the City each year. Payment must be made for the full year in advance.

Vested retirees who enroll in the Fund (and their eligible dependents) would be covered for the following ben-efits provided by the R.F.S.B.F.

•Burial Allowance•Family Dental Plan•Optical Benefits•Surgical Assistance Fund•Hearing Aid Benefit•ANNUAL Prescription Drug ID Card

Any subsequent changes in the rate of contribution to the Fund and the above benefits would apply to thevested retirees.

Vested retirees interested in this program, please communicate by writing to the Security Benefit Fund office,204 East 23rd Street, 3rd Fl., NY, NY 10010. Or call 212-683-4723.

In all cases where there is a change of family status, member must file an ERB and forward it to:

Employee Health Benefit Program40 Rector Street 3rd Floor

New York, NY 10006212-513-0470

wwwwww..nnyycc..ggoovv//hhttmmll//oollrr//ddoowwnnllooaaddss//ppddff//hheeaalltthhbb//eerrbbaapppp..ppddffwwwwww..nnyycc..ggoovv//hhttmmll//oollrr

WWIIDDOOWWSS’’ BBEENNEEFFIITTSSThe R.F.S.B.F. provides benefits for widows and eligible dependents of retired firefighters, who retired afterJanuary 1, 1971 (July 9, 1993 for wipers or January 1, 2012 for Marine Engineers and Pilots) who become wid-owed after July 1, 1987; these widows and eligible dependents will be entitled to the same health plan and ben-efits under the R.F.S.B.F. for a period of ONE YEAR ONLY.

The Trustees of the Fund reserve the right to modify or discontinue the benefits of the Fund at any time.Notification of changes in the benefits or procedures will be sent to your address as listed on the Fund records.

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Pension Life Insurance FDNY

FDNY (Death) Notifications Desk

FDNY Retirement Desk

Counseling Services Unitwww.nyc.gov/html/fdny/html/units/csu/index.shtml

Florida Dental - Healthplex America 500www.yourdentalplan.com/healthplex

Pension and Payrollwww.nyc.gov/html/fdny/html/home2.shtml

Art 1 Retirees FDNY

Welfare Fund (AMB/OXY) FDNY

CVS/Caremarkwww.caremark.comExpress Scriptswww.express-scripts.com

Honor Emergency Fund FDNY

Surgical Assistance Fund FDNY

SilverScriptwww.silverscript.com

Dentcare / Healthplexwww.healthplex.com

Retiree Beneficiary Changes FDNY

FDNYWorld Trade Center Medical Monitoring & Treatment Programwww.nyc.gov/html/fdny/html/units/bhs/wtcmm/index.shtml

Security Benefit Fund (SBF)www.ufanyc.org

City Employee Health / Medical / Medicare Benefits* (*Not managed by the UFA)www.nyc.gov/html/olr or www.nyc.gov/html/olr/downloads/pdf/healthb/erbapp.pdf

212-683-4723Fax 212-683-0693

718-999-1886

718-999-2327

718-999-2320 or718-999-2321

888-200-0322

718-999-2320

212-570-1693 or212-570-1696

718-999-2324

718-999-2531 or718-999-2532

866-832-0563

718-999-1252

800-467-2006 or800-233-7139

866-412-5373

800-468-0608

212-513-0470*

718-999-1206

718-999-1207

718-999-1858

IMPORTANT PHONE NUMBERSPage 12Fire LinesNO. 2 2012

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The Federal DiscriminationLawsuit - Summary

In 2007, the United States Department ofJustice commenced a lawsuit against the City ofNewYork, alleging that the City was guilty of illegaldiscrimination against Black and Hispanic candi-dates who sought to become New York City fire-fighters. The suit claimed that Exam number 7029given in 1999 and Exam 2043, given in 2002 had anillegal disparate impact on those minorities.Essentially, the passing rate for the minorities wasstatistically too low when compared to Caucasiancandidates. That fact alone placed the burden uponthe City to prove that the examinations were “jobrelated” and “consistent with business necessity.”

Meanwhile, the Vulcan Society successfullyintervened in the case and asserted that not onlywere the entrance exams illegal due to their disparateimpact, but that they also were a product of inten-tional discrimination by the City against Black can-didates. The Vulcan’s claimed that the Mayor andFire Commissioner knew of the low number ofminorities in the firefighter ranks and purposelyfailed to remedy that condition.

The case was assigned to US District JudgeNicholas Garaufis of the Federal Court in Brooklyn.He has remained in charge since the case began. Asyou certainly have read in the media, Judge Garaufishas exhibited little patience with the defenses raisedby the City and has consistently ruled in favor of theDepartment of Justice and the Vulcan Society.

Early in the litigation, the UFA attempted tointervene to insure, as much as possible, that thestandards to join the firefighting ranks were not arti-ficially and dangerously lowered to achieve thedesired diversity in the ranks. We expressed theUFA’s concern that such a maneuver would pose asafety issue for our members and the public. TheUFA’s efforts were rejected by Judge Garaufis whoheld that the Union’s safety concerns would be ade-quately protected by the City. The judge did, how-ever, make clear that if and when a plan to remedyany past discrimination was proposed, he UFA had

the right to protect incumbent firefighters and theirseniority rights.

After the DOJ, Vulcan Society and City con-ducted extensive pre-trial discovery proceedings,including the depositions of numerous DCAS andFDNY officials and the exchange of expert informa-tion by all sides, the DOJ and Vulcan Society movedthe court for summary judgment on their claims.

Essentially, they argued that they had statis-tically proven a disparate impact on Blacks andHispanics and that the City had failed to prove thatthe tests were properly validated; i.e. that they were“job related and consistent with business necessity.”

The Vulcan Society also asserted that theyhad proven the City’s intentional discrimination tothe extent that a trial was not necessary on that issue.

Judge Garaufis granted the summary judg-ment motions and found that Exams 7029 and 2043had an illegal disparate impact on Black andHispanic candidates. He also found that the actionsby the Mayor and Fire Commissioner constituted a“pattern and practice” of intentional discrimination.

Soon thereafter, Judge Garaufis went further.He ruled that the latest FDNY exam, number 6019,also had a disparate impact on minorities and that theCity could not use that test to hire firefighters.

Please note that Exam 6019 had not beenchallenged by the DOJ or Vulcan Society. Instead,the Judge ruled that he had the duty to prevent con-tinuing discrimination and that an entirely new testwas required.

In order to allow the FDNY to meet its man-power needs without excessive overtime costs, thejudge offered various interim hiring alternatives tothe City while a new test could be created andadministered. Mayor Bloomberg however, rejectedthose alternatives because he contended they consti-tuted hiring by racial quotas, which he was unwillingto accept.

As a result of Judge Garaufis’ decisions andthe City’s rejection of his interim hiring proposal, nonew firefighters have been hired for the last severalyears.

Judge Garaufis’ Remedies

A. The New Exam

After invalidating Exam numbers 7029,2043 and 6019, Judge Garaufis directed that the City

General Counsel’s ColumnMichael N. Block, Esq.

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in consultation with the DOJ and the Vulcan Society,prepare a new, properly validated FDNY entranceexam. He also appointed former U.S. Attorney, MaryJo White as a “Special Master” to oversee the exami-nation development process.

That process resulted in the creation of Exam2000 which was recently administered to more than40,000 candidates over several weeks. The exam wasalso administered to EMS employees as a promotionaltest (Exam number 2500).

The UFA and UFOA were to be kept informedof the test preparation process. Initially, the UFA waspermitted to attend several meetings chaired bySpecial Master White, which meetings included thetest preparation experts hired by the parties. However,once the exam was close to final form, the UFA start-ed raising questions about how the test would bescored and how the candidates would be selected.

After these questions were raised, the UFA andUFOA were essentially excluded from further partici-pation in the test preparation process. The exclusionwas based on the alleged ground that complete confi-dentiality was required and that unions had no legalinterest that needed protection at that stage.

In late September, 2012 the City made a formalapplication to Judge Garaufis for approval of Exam2000 and the scoring method advanced by the City.The DOJ and the Vulcan Society supported thatmotion and Judge Garaufis approved the new examand scoring system.

The scoring of the exam will be in “rank order”and the City anticipates that about 2400 new firefight-ers will be appointed over the four-year life of the list.According to the City, the test results do not have a dis-parate impact on Black or Hispanic applicants withinthe range of the 2400 anticipated hires.

The City also anticipates that hiring off theopen competitive list will include candidates thatscored 97 or higher (which score includes credits forresidency, legacy credits and veteran’s credits). Peoplewho scored 96 have a slight chance of being reached.

It also appears that the first class of about 300candidates will come entirely from the EMS promo-tional list in early 2013. The second class will alsocome from that promotional list, but may include someof the 293 “priority hires” ordered by Judge Garaufis(see below).

B. The FDNY Monitor

Once the Judge ruled that the prior examina-tions were invalid, he issued additional rulings intend-ed to make sure that the FDNY complied with hisdirective to remedy past discrimination.

To achieve that goal, Judge Garaufis hired aMonitor for the FDNY to make sure that the candidateswho are chosen for hiring are not discriminated againstduring that process or during the training of new can-didates.

The Monitor will also oversee, for at least 10years, the preparation and administration of futureFDNY hiring exams.

The judge ultimately designated the Monitor tobe Mark Cohen. Thus far, Mr. Cohen has billed theCity more than $600,000 for his legal services asMonitor. The judge has refused to permit the City toreview and dispute the Monitor’s bills. The judge him-self has allegedly reviewed them and directed that theCity pay them in full.

Appeal

The City has appealed Judge Garaufis’ rulingsinsofar as he found intentional discrimination andinsofar as he directed appointment of the FDNYMonitor. The City also asked the appellate court toremove Judge Garaufis from further handling the case.The appeal was argued in the Second Circuit Court ofAppeals but no ruling has yet been issued by thatCourt.

Please note that Judge Garaufis’ ruling thatExams 7029 and 2043 had a disparate impact therebyrequiring a new test, was not appealed by the City.Thus, Exam 2000 (and promotional Exam 2500) ifapproved by the judge, will result in a new hiring list.

Financial and Seniority Remedies

As a consequence of Judge Garaufis’ finding ofpast discrimination by the FDNY, he has issued pro-posed Relief Order that would require the City to doseveral things: (1) Based upon the experts’ submis-sions, the judge has found that 293 Black and Hispaniccandidates who took the two challenged tests, weredeprived of jobs as firefighters. Therefore, early in thehiring process, 186 Black and 107 Hispanic candidateswill be identified from those who took either or both

w w w . u f a n y c . o r g

Page 15Fire LinesNO. 2 2012Exams 7029 and 2043 and scored at least 25, but werenot hired. Those individuals will be hired on a prioritybasis, separate from the regular hiring list. on the hir-ing list. Specifically, two out of every five new hireswill be Black and one out of every five will beHispanic until the 293 total is reached. (2) The 293 pri-ority hires will receive back pay and retroactive senior-ity; and (3) Incumbent Black and Hispanic firefighterswhose hiring was “delayed” by the discriminatoryeffect of Exams 2043 and 7029 will also receive backpay and retroactive seniority. Such awards will go tothose firefighters who were hired after the “medianhire” date of the test they took.

It is worthy to note that the Vulcan Societyargued that the 293 priority hire candidates should noteven have to take the new test (Exam 2000) becausethey were previously the victims of the City’s discrim-inatory practices.

The UFA urged that the Court compel all newhires, including the 293, to take the new test to makesure they were minimally qualified for the job.

Both the City and the DOJ supported theunion’s position and Judge Garaufis agreed.

Furthermore, with respect to retroactive senior-ity, the UFA successfully convinced the Court and theparties that such seniority could not be used to evade“time-in-grade” requirements. Thus, a newly hiredfirefighter who was awarded retroactive seniority asfar back as 2003, will still have to actually serve forseveral years before being eligible to take any promo-tional examination.

During the recent “Fairness Hearings”, several

firefighters raised concerns that retroactive seniorityshould not be used at all, except as it may count forcredit toward retirement. Judge Garaufis is currentlyconsidering those concerns.

With regard to back pay awards, the potentialfinancial obligation of the City is $128,000,000.00.However, that figure will be reduced by what the can-didates did or should have earned during the years theywere deprived of the job.

The Physical Exam

From the outset of this litigation, the UFA con-sistently urged that the best way to insure that candi-dates were qualified to be firefighters, is to require atruly competitive physical examination.

The UFAadvocated that the City seek to recruitthe most physically fit high school graduates and for-mer members of the military.

Unfortunately, the City, the DOJ and theVulcan Society successfully urged the Court to use theIAFF’s CPAT examination for the hiring physical.

The UFA believes that such test is not suffi-ciently competitive and does little to identify thosecandidates best suited to be firefighters.

Nevertheless, the new candidates who are cho-sen from the written portion of Exam 2000 (and 2500)will take the CPAT test.

We will also continue to keep our membershipinformed of the developments in this very controver-sial litigation.

The FDNYAnnual MemorialService was held at theFiremen’s Monument onWednesday, October 10th,2012. Thousands of NewYork’s Bravest, as well ashundreds of firefightersfrom the US and aroundthe world, turned out tohonor the memory of theirfallen brothers.

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