A city agency that agrees, in a consent decree, that it "will not allow discrimination based on actual or perceived race, color, national origin, ethnicity or any other reason prohibited by federal, state or local law," does not -- according to the Second Circuit -- subject itself to contempt remedies if it should fall short of this aspiration.
Latino Officers v. The City of New York, No. 07-5293 (2d Cir. Mar. 4, 2009): The parties originally litigated their claim from 1999 to 2004. Plaintiffs alleged that minority police officers suffered a "hostile work environment, disparate disciplinary treatment, and retaliation." A class was certified in 2002. In 2004, the district court entered a consent decree, continuing the above recital and committing the department to various reforms and monitoring. In 2006, the officers returned to court, contending that the city did not make good its promises to maintain a discrimination- and harassment-free environment. A district court found no violation of the decree and denied an contempt order.
The Second Circuit affirms. The principal contention addressed by the panel was that statistical evidence showed that minority officers were being hauled up for disciplinary action (and treated harsher) more often than non-minority officers. But the panel, like the district court below, found the evidence less than convincing: "Without more information to support causation, and lacking any analysis from the plaintiffs' expert regarding the statistical significance of the disparities he identified, we are in complete agreement with the District Court that '[p]laintiffs' showing falls far short of establishing that the NYPD is 'allow[ing] discrimination.'"
Moreover, the panel believes that the city went the extra mile, anyway:
"Indeed, if anything, the record shows that defendants have taken substantial steps to eliminate discriminatory practices in the NYPD. The District Court found that, pursuant to the settlement agreement, defendants had (1) established a Disciplinary Review Unit, titled the Employment Practices Unit, to review the NYPD's disciplinary process and how it affects employment discrimination, (2) developed a 'Know Your Rights' guide, which details the NYPD disciplinary process, and (3) produced statistical reports on the NYPD discipline system. Beyond the terms of the settlement agreement, the record shows that defendants had decided to conduct a review of at least one command each month to assess disciplinary actions taken and use information from their databases to train commanding officers about discipline trends. In the absence of clear and convincing evidence of defendants' noncompliance, and in light of the fact that defendants have taken these affirmative steps to curb employment discrimination in the NYPD-including the very steps plaintiffs deemed necessary to combat such discrimination-we conclude that plaintiffs have failed to meet their burden of showing why defendants should be held in contempt."
The court reminds the class that they are not barred from filing a fresh suit on the new allegations, though they could not obtain a contempt remedy on this record.