Case 2:09-cv-00133-MSD-LRL Document 1 Filed 03/25/09 Page 1 of 6 PageID# 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

FILED
MAR 2 5 2009

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF PORTSMOUTH, VIRGINIA, Defendant.

CLERK, US DISTRICT COURT NORFOLK. VA
Civil Action No. 2:d9c\/ 133

COMPLAINT Plaintiff United States of America alleges:

1.

This action is brought on behalf of the United States to enforce the provisions of

Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., as amended ("Title VII").

2.

This Court has jurisdiction of this action under 42 U.S.C. § 2000e-6(b), 28 U.S.C.

§§1331, 1343 and 1345.

3.

Defendant City of Portsmouth, Virginia ("Portsmouth" or the "City"), is a

municipal government and/or political subdivision created pursuant to the laws of the

Commonwealth of Virginia.

4.

Portsmouth is a person within the meaning of 42 U.S.C. § 2000e(a), and an

employer within the meaning of 42 U.S.C. § 2000e(b).

5.

Portsmouth maintains a Fire Department, and employs firefighters who, among

other things, are responsible for protecting individuals and property in the City.

6.

The civilian labor force of Portsmouth is approximately 45.5% African American.

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7.

As of October 7,2008, Portsmouth employed approximately 226 firefighters

across all ranks, of whom approximately 12.4% were African American.

8.

Portsmouth is responsible for establishing the terms, conditions and other

practices that bear upon the selection and employment of the City's firefighters.

9.

Portsmouth has maintained and continues to maintain selection procedures by

which applicants for appointment to the rank of firefighter are screened and selected.

10. As part of its selection process for firefighter, Portsmouth has administered and continues to administer to applicants the National Firefighter Selection Test ("NFST"), a written examination developed and sold by Stanard and Associates, Inc. ("Stanard").

11. Since at least 2004, Portsmouth has set the passing score for the NFST at 70%. Only applicants who pass the NFST with an overall average score of 70% or above are allowed

to continue in the selection process for firefighter.

12. Applicants who pass the NFST and a physical agility test ("PAT") are interviewed by a panel and scored based on their interviews. Applicants' NFST and interview scores are then forwarded to Stanard, which places applicants into bands based on a combination of their

NFST and interview scores. Stanard then provides the bands to the City's Human Resources

("HR") Department.

13. To fill firefighter positions, the City's Fire Department requests bands from the City's HR Department. Applicants within bands are treated as functionally equivalent to one another. Once a band is called, polygraph examinations and background checks are conducted for applicants within the band. Applicants are interviewed by the Chief of the Portsmouth Fire Department, and offers of appointment are extended to those applicants within the band who

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have not been disqualified by the City's Civil Service Commission after the completion of the background checks.
14. Since 2004, the City has administered to firefighter applicants the NFST four times - in 2004,2006,2007, and 2008.
15. Between 2004 and the present, the pass rate of whites on the NFST was 85.9%, while the pass rate of African Americans was 42.4%. Although African Americans constituted approximately 29% of all applicants who took the NFST during this period, they constituted only approximately 17.9% of the applicants who passed the NFST.
16. This difference between the pass rates of African American and white applicants on the NFST is statistically significant. Moreover, between 2004 and the present, if AfricanAmerican applicants had passed the NFST at the same rate as white applicants, 86 additional African American applicants would have remained under consideration in the selection process
for firefighter.
17. Portsmouth's use of the NFST to screen and select firefighter applicants between 2004 and the present has resulted in disparate impact upon African Americans.
18. Portsmouth's use of the NFST between 2004 and the present is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k).
19. Portsmouth has pursued and continues to pursue policies and practices that discriminate against African Americans and that deprive or tend to deprive African Americans of employment opportunities because of their race, in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. Portsmouth has implemented these policies and practices, among other ways,

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through:

a.

its use of the NFST in the screening and selection of applicants for appointment to

firefighter that results in disparate impact upon African Americans, is not job

related for the position in question and consistent with business necessity, and

does not otherwise meet the requirements of Section 703(k) of Title VII, 42

U.S.C. § 2000e-2(k); and

b.

its failure or refusal to take appropriate action to correct the present effects of its

discriminatory policies and practices.

20. The policies and practices of Portsmouth described in Paragraphs 10 through 19

constitute a pattern or practice of resistance to the full enjoyment by African Americans of their

right to equal employment opportunities without discrimination based on race, in violation of

Section 707 of Title VII, 42 U.S.C. § 2000e-6. This pattern or practice is of such a nature and is

intended to deny the full exercise of the rights secured by Title VII. Unless restrained by order of

this Court, the City will continue to pursue policies and practices that are the same as or similar

to those alleged in this Complaint.

21. All conditions precedent to the filing of suit have been performed or have

occurred.

WHEREFORE, the United States prays for an order enjoining Portsmouth, its officers,

agents, employees, successors and all persons in active concert or participation with them, from

engaging in discriminatory employment practices against African Americans on the basis of race in violation of Title VII, and specifically from:

a.

the use of a written examination in the screening and selection of applicants for

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appointment to firefighter that results in disparate impact upon African

Americans, is not job related for the position in question and consistent with

business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k);

b.

failing or refusing to provide make-whole relief to individual African Americans

who have suffered loss and/or will suffer loss as a result of the City's use of the NFST;

c.

failing or refusing to take appropriate action to correct the present effects of its

discriminatory use of the NFST; and

d.

failing or refusing to take other appropriate non-discriminatory measures to

overcome the effects of its discriminatory use of the NFST.
Plaintiff United States prays for such additional relief as justice may require, together with its costs and disbursements in this action.

Respectfully submitted,

LORETTA KING Acting Assistant Attorney General Civil Rights Division

By: .
JohnM. Gadzichowski (WI Bar No. 1014294)
>rney for United States of America J.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4906 Washington, D.C. 20530 Telephone: (202)514-3831 Facsimile: (202)514-1005 John.M.Gadzichowski@usdoj .gov

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 </s> Case 2:09-cv-00133-MSD-LRL Document 13 Filed 07/23/09 Page 1 of 33 PageID# 234

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

FILED IN OPEN COURT
JUL 2 3 2009

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF PORTSMOUTH, VIRGINIA,

)

)

Defendant.

)

J

Civil Action No.

CLERK, U.S. DISTRICT COURT NORFOLK, VA

CONSENT DECREE
This action was brought by the United States against the City of Portsmouth, Virginia (the "City") to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea-, as amended ("Title VII"). This Court has jurisdiction of this action under 42

U.S.C. § 2000e-6 and 28 U.S.C. §§ 1343(a)(3) and 1345.
In its Complaint, the United States alleges that the City has pursued policies and practices

that discriminate against and deprive or tend to deprive African Americans of employment

opportunities because of their race, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). Specifically, the United States alleges that the City's use of the National Firefighter Selection Test ("NFST") as a pass/fail screening device in the selection process for the entry-level position of firefighter has had disparate impact upon African Americans. The United States further alleges that the City's use of the NFST has not been shown to be job related

for the position in question and consistent with business necessity. This action alleges disparate impact discrimination. The United States does not allege in

its Complaint that the City of Portsmouth has intentionally discriminated against any person or

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group of persons under Title VII. The City denies that it has violated Title VII. Nevertheless, the United States and the
City, desiring that this action be settled by an appropriate Consent Decree ("Decree") and without the burden of protracted litigation, agree to the jurisdiction of this Court over the parties and the subject matter of this action. The United States and the City further agree to the entry of

this Decree as final and binding between themselves as to the issues raised in the United States' Complaint in this case. Subject to the Court's approval of this Decree, the parties waive hearings and findings of fact and conclusions of law on all issues, except as to the following, which the

parties stipulate and which the Court finds: (a) Since at least 2004, the selection process used by the City in the screening and selection of applicants for hire into the position of entry-level firefighter in its Fire Department has included the administration of a written examination, the

NFST.

(b)

The City requires that applicants score at least 70% on the NFST in order to

proceed in the selection process. The NFST score is calculated by averaging

together scores achieved by applicants on each of the NFST's component parts:

reading comprehension, mathematics, and listening comprehension.

(c)

Between 2004 and 2008, the City administered the NFST four times to a total of

approximately 403 white applicants and 198 African-American applicants. The

City conducted one administration of the NFST in each of 2004, 2006, 2007 and

2008. There is no dispute that African-American applicants passed the NFST at a lower rate than white applicants and that the disparity in pass rates is statistically

Case 2:09-cv-00133-MSD-LRL Document 13 Filed 07/23/09 Page 3 of 33 PageID# 236

significant. The pass rate for African-American applicants was approximately

42%, while the pass rate for white applicants was approximately 86%, a disparity

in pass rates that is equivalent to approximately 10.8 units of standard deviation.

(d)

The lower pass rate of African-American applicants on the NFST ultimately

resulted in an estimated shortfall of African-American applicants hired for the

position of entry-level firefighter. The shortfall is an estimate of the additional

number of African-American applicants that would have been hired had African-

American applicants passed the NFST at the same rate as white applicants. The

estimated shortfall of African-American applicants hired for the position of entry-

level firefighter is approximately twelve (12).

(e)

The United States contends, and for purposes of this Consent Decree only and

without admitting liability the City does not dispute, that the City's use of the

NFST with a 70% pass/fail cut-off score is not job related for the position of

entry-level firefighter and consistent with business necessity.

In resolution of this action, with the consent of the parties, IT IS THEREFORE ORDERED,

ADJUDGED AND DECREED as follows:

I.

DEFINITIONS AND PARTIES

1.

The parties to this Consent Decree are the United States, by the United States Department

of Justice, and the City of Portsmouth, Virginia (hereinafter, collectively "the parties," and

individually a "party.")

2.

"Backpay" refers to a monetary award that represents the value of some or all of the

wages and benefits that a claimant would have received from the City if the claimant had been

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hired by the City for an entry-level firefighter position on or about the claimant's presumptive

hire date.

3.

"Claimant" refers to any African-American applicant for the position of entry-level

firefighter who is preliminarily eligible for individual relief and who timely submits a claim

form, pursuant to Paragraphs 29 and 32.

4.

"Date of entry" of the Decree refers to the date on which the Court orders entry of the

Decree at or following the Fairness Hearing on the Consent Decree as set forth in Paragraph 24

of this Decree.

5.

"Days" refers to calendar days unless business days are clearly specified in the context of

a specific provision of this Decree. If any deadline referenced in this Decree should fall on a

weekend or holiday, the deadline shall be moved to the next business day.

6.

"Entry-level firefighter" refers to the entry-level position in the City's Fire Department

even though an individual hired into that position may be called a "recruit" (or other title) until

the individual has completed academy training.

7.

"Individual relief" refers to a monetary award in the form of backpay and/or an offer of

priority hire, with retroactive hire date as defined herein, that a claimant may be offered pursuant to the terms of this Decree.

8.

"Presumptive hire date" for any claimant refers to the median date of hire of applicants to

whom the City administered the NFST on the date the claimant failed the NFST. The median dates of hire for the administrations of the NFST at issue are: (1) for the examination administered on May 8, 2004, the median date of hire is September 1, 2005; (2) for the examination administered on April 1, 2006, the median date of hire is June 30, 2007; (3) for the

Case 2:09-cv-00133-MSD-LRL Document 13 Filed 07/23/09 Page 5 of 33 PageID# 238

examination administered on June 23, 2007, the median date of hire is December 26, 2007; and for the examination administered on April 26, 2008, the median date of hire is December 22,

2008.

9.

"Retroactive hire date" refers to the seniority date to be used by the City for any claimant

who is actually hired by the City as a priority hire pursuant to the terms of this Decree and

successfully completes his/her probationary period. A claimant's retroactive hire date shall not

be used for purposes of any applicable probationary periods or any time in grade requirements

associated with eligibility for promotions, but shall be used for all other purposes, including

without limitation: amount of salary or other pay, pension benefits (to the extent that back

contributions to the Virginia Retirement System ("VRS") are allowed by state law and policy

and regulation), future accrual of leave, including both vacation and sick leave,

layoffs/reductions in work force, and eligibility for retirement.

10.

"Selection device" refers to any examination, test, requirement, or criterion used to

evaluate an applicant's qualifications for hire as an entry-level firefighter (e.g., application,

written examination, oral interview, physical agility/performance test, polygraph, medical

examination, psychological examination, background investigation, etc.).

11.

PURPOSES OF THIS DECREE

11. The purposes of this Decree are to ensure that:

(a) the City does not violate Title VII by using policies or practices that have a

disparate impact upon African-American applicants for entry-level firefighter

positions on the basis of race and are not job related for that position and consistent with business necessity, or otherwise do not meet the requirements of

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Title VII;
(b) the City provides, as appropriate, monetary relief and/or priority hiring with retroactive hire dates to qualified individuals who were denied employment with the City due to the employment practice challenged by the United States in this
case.
III. GENERAL INJUNCTIVE RELIEF
12. The City, its officials, agents, employees, and successors, and all persons acting on its behalf or in active concert or participation with it, are enjoined from using any selection device, including a written examination for the entry-level firefighter position, that has a disparate impact upon African-American applicants on the basis of race and is not job related for that position and consistent with business necessity, or otherwise does not meet the requirements of Title VII. Further, during the term of this Consent Decree, the City shall not administer any
written examination for use in the selection of entry-level firefighters without the prior agreement of the United States or, absent such agreement, prior approval of the Court. 13. The City is specifically enjoined from using the NFST in any manner that results in a disparate impact upon African-American applicants. Notwithstanding the foregoing, the City may use the eligibility lists associated with its 2008 administration of the NFST as an interim hiring measure to fill essential entry-level firefighter vacancies either for a period of up to one (1) year from the date of execution of this Consent Decree by the parties, or until an alternative selection device is approved and adopted in accordance with the terms of this Consent Decree, whichever occurs first, as long as the City does not at any time use those eligibility lists in any manner that causes an additional shortfall of African-American hires. At least thirty (30) days

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prior to making any offer(s) of employment based on the 2008 NFST eligibility lists, the City shall give the United States written notice of: (a) the number of entry-level firefighter vacancies that exist in the Fire Department; (b) the length of time the positions have been vacant; (c) the number of vacancies the City intends to fill; and (d) the identities of the individuals on the 2008
NFST eligibility lists to whom the City proposes to make offers of employment. 14. No later than ninety (90) days after the date of entry of this Decree, the City shall submit to the United States a proposal to use a selection device in place of the NFST (an "alternative selection device") for selecting entry-level firefighters. The alternative selection device shall either have no disparate impact on the basis of race or shall have been demonstrated to be job related for the entry-level firefighter position and consistent with business necessity in accordance with Title VII. In selecting or developing its alternative selection device, the City shall make reasonable efforts to explore the availability of selection devices which have been shown to reduce or eliminate disparate impact upon African Americans in the selection of
firefighters.
15. The City's proposal submitted pursuant to the preceding Paragraph shall include all information available to the City about the development and/or validation of the proposed alternative selection device, including but not limited to: a description of the alternative selection device and the manner in which the City intends to use it; the known or likely disparate impact, if any, of the intended use of the alternative selection device; all evidence ofjob relatedness or validity of the alternative selection device, including all job analyses, test plans, expert reports, and validation studies, as well as data underlying such analyses, plans, reports or studies; and any basis for a conclusion that the proposed use of the alternative selection device is

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job related for the position and consistent with business necessity. The City's submission shall

also identify any other selection devices, as well as any other manners of using the alternative

selection device the City proposes, considered by the City. Within ninety (90) days of receipt of

a proposal for an alternative selection device from the City, the United States shall notify the

City in writing whether it has any objections to the City's proposed use of the alternative

selection device. If the United States does not notify the City that the United States has an

objection pursuant to this Paragraph, the City may administer the alternative selection device.

16. If after the administration of the City's alternative selection device, the United States

determines that the City's use of the alternative selection device does not comply with Title VII

and with this Decree, the United States shall notify the City in writing that the United States

objects to the City's use of the alternative selection device.

17.

If an objection to the City's use of an alternative selection device is made by the United

States pursuant to either Paragraph 15 or 16 of this Decree, the parties shall meet within thirty

(30) days to discuss the United States' objection. If the parties fail to reach agreement on how to

resolve the issues raised by the United States' objection within thirty (30) days, either party to

this Decree may move the Court for resolution no sooner than fourteen (14) days after providing

the other party with written notice of such intent. If an objection to the City's use of an

alternative selection device for the entry-level firefighter position is made by the United States

pursuant to either Paragraph 15 or 16, no person shall be certified for appointment as an entry-

level firefighter from any affected eligibility list except by written agreement of the parties or

order of the Court.

18. The City shall designate an individual who shall be responsible for enforcing the

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provisions of this Decree. This individual's responsibilities shall include, but not be limited to,

ensuring that the City fully implements and complies with all Paragraphs of this Decree and

receiving complaints of discrimination on the basis of race in the screening, selection and hiring

of entry-level firefighters in the Portsmouth Fire Department.

IV. FAIRNESS HEARING ON THE CONSENT DECREE

19. Upon execution of this Decree, the parties shall file a joint motion for the provisional

approval and entry of the Decree by the Court and shall request a Fairness Hearing on the

Consent Decree to allow the Court to determine whether its terms are fair, reasonable, equitable

and otherwise consistent with federal law. The Court shall provide the parties with at least

ninety (90) days notice of the date and time set for this Fairness Hearing.

20. The purpose of the Fairness Hearing on the Consent Decree and the related notification

provisions of this Decree is to provide to all individuals who may be affected by the terms of the

Decree notice and an opportunity to present objections prior to final entry of the Decree, in

accordance with Section 703(n) of Title VII, 42 U.S.C. § 2000e-2(n).

21. No later than seventy-five (75) days prior to the Fairness Hearing on the Consent Decree,

the City shall provide a Notice of Settlement and Fairness Hearing, Instructions for Filing an

Objection Prior to the Fairness Hearing, and an Objection to the Entry of the Consent Decree

form, in the formats set forth in Appendix A, as follows:

(a)

via certified U.S. mail (return receipt requested) to the last known address of each

African-American applicant who took the NFST as part of the City's firefighter

selection process during or after 2004 and who was considered by the City to

have failed the NFST because he or she received a score of less than 70% (each

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such individual is listed in Appendix B to this Decree), along with a cover letter

in the format set forth in Appendix C to this Decree; and

(b)

to each firefighter in the Portsmouth Fire Department, via the same method of

delivery as the employee's paycheck is regularly distributed, as an attachment or

enclosure to the employee's paycheck, along with a cover letter in the form set

forth in Appendix D to this Decree.

(c)

via certified U.S. mail to the Portsmouth, VA Professional Firefighters

Association (Local 539 of the International Association of Firefighters), and any

other union or association recognized as being authorized to represent firefighters

in the Portsmouth Fire Department.

At or before the time notices are provided pursuant to subparagraphs (a) and (c) of this

Paragraph, the City shall provide to the United States a list stating the last known address of each

individual or entity to whom such notice is being sent. At or before the time notices are

provided to sworn employees pursuant to subparagraph (b) of this Paragraph, the City shall

provide to the United States a list of the sworn employees to whom notice is being provided and

the manner in which notice is being provided to each such employee.

22. Persons who wish to object to the terms of the Consent Decree may file objections, in

accordance with the requirements and format set forth in Appendix A, as follows:

(a) Objections shall state the objector's name, address and telephone number; set

forth a description of the objector's basis for objecting; include copies of any

documentation supporting the objections; state the name and address of the objector's counsel, if any; and state whether the objector wishes the opportunity

10

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to be heard in Court at the Fairness Hearing on the Consent Decree. (b) Objections shall be submitted by mailing a copy of any objection to the

United States Department of Justice at the following address:

Meredith L. Burrell
Senior Trial Attorney Employment Litigation Section U.S. Department of Justice Civil Rights Division PHB, Room 4924 950 Pennsylvania Avenue, NW
Washington, DC 20530

(c) Objections must be mailed to the United States no later than forty-five

(45) days prior to the date set for the Fairness Hearing on the Consent

Decree. The United States shall serve upon the City copies of the

objections it has received no later than thirty (30) days prior to the date set

for the Fairness Hearing on the Consent Decree. 23. No later than ten (10) days prior to the Fairness Hearing on the Consent Decree, the

United States shall file with the Court copies of all objections received by the United States. In addition, no later than ten (10) days prior to the Fairness Hearing on the Consent Decree, the

United States and the City shall file their responses, if any, to all objections timely received by

the United States in accordance with the deadlines set forth in Appendix A.

V.

ENTRY OF THE CONSENT DECREE

24. If the Court determines that the terms of this Decree are fair, reasonable, equitable and

otherwise consistent with federal law, the Court shall enter the Decree at or following the

Fairness Hearing on the Consent Decree.

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VI. INDIVIDUAL RELIEF

A.

Deposit of the Settlement Fund

25. Within thirty (30) days after the date of entry of this Decree by the Court, or on January

15, 2010, whichever is later, the City shall deposit the sum of $145,000 into an interest-bearing

account (the "Settlement Fund"), established for this purpose, in a federally insured financial

institution agreed to by the parties. No later than fourteen (14) days from the date of entry of this

Decree, the City shall propose in writing to the United States a federally insured financial

institution for deposit of the Settlement Fund. The United States shall provide a written response

to the City's proposal within seven (7) days of its receipt, either consenting to the City's

proposed financial institution or objecting and proposing an alternative financial institution. If

the parties cannot agree on a federally insured financial institution, either party may submit the

dispute to the Court for resolution upon providing the other party with seven (7) days written

notice of its intent.

B.

Monetary Relief Awards from the Settlement Fund

26. The funds in the Settlement Fund, including any interest that accrues on the Settlement

Fund, shall be distributed by the City to claimants entitled to monetary relief under this Decree,

as provided in Section VI, subsection J, of this Decree. 27. The City shall pay all federal, state or local taxes or contributions that normally are paid

by employers and that are due on any monetary relief award paid to a claimant, including the appropriate employer's contributions to Medicare and the Social Security fund. No such taxes or

contributions shall be deducted from the Settlement Fund, the interest that accrues on the Settlement Fund, or any claimant's monetary relief award.

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28. The City shall, to the extent required by law, withhold from each claimant's monetary relief award all appropriate federal and state income taxes and any other required employee
withholdings or deductions to the extent required by law. Such amounts shall be deducted by the
City from each claimant's monetary relief award and shall be paid by the City from the

Settlement Fund.

C.

Preliminary Elipihilitv for Individual Relief

29. Individuals preliminarily eligible for relief under this Decree shall include all African-

American applicants for entry-level firefighter who were considered by the City to have failed

the NFST because they received a score of less than 70%, but who received a minimum score of

60 on the reading comprehension component of the NFST. Each such individual is listed in

Appendix B to this Decree. No individual must seek priority hiring relief or accept an offer of

employment with the City in order to receive an award of monetary relief.

30. Within fourteen (14) days after the entry of this Decree by the Court, the City shall send a

copy of the Notice of Entry of Consent Decree and Interest In Relief Form, attached to this

Decree as Appendix E, by certified U.S. mail (return receipt requested) to the last known address

of each individual preliminarily eligible for relief, as described in the preceding Paragraph.

31. The City shall keep records of all notices required by Paragraph 30 that are returned to

the City as undeliverable. Within twenty-one (21) days of the mailing of the notices required by

Paragraph 30, the City shall provide to the United States a list of all delivered and undelivered

notices, and a copy of all notices, envelopes and mail receipts for all persons to whom a notice

was sent. If the United States provides the City with an alternative address for any individual

whose notice was returned to the City as undeliverable, the City shall promptly re-mail the notice

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to the alternative address for that individual by certified U.S. mail (return receipt requested). If

requested, the City shall provide reasonable and prompt assistance to the United States in

providing information that may allow the United States to locate an alternative address for any

individual whose notice was returned as undeliverable.

D.

Claimants to Submit Interest in Relief Form

32.

Any person who wishes to be considered for an award of individual relief under this

Consent Decree must return the completed Interest in Relief Form (Appendix E) to the United

States no later than forty-five (45) days from the date of entry of this Decree. Any person who

fails to do so shall be deemed to have waived any right to be considered for an award of

individual relief under this Decree, except for good cause as determined by the United States.

The date the Interest in Relief Form was mailed, faxed or otherwise delivered to the United

States shall be deemed the date of return of the claimant's form. In the event that an Interest in

Relief Form is returned by U.S. Mail but no date of mailing is indicated by a postmark of the

United States Postal Service, the date of return of the Interest in Relief form shall be deemed to

be ten days prior to the date the form was received by the Employment Litigation Section of the

Civil Rights Division.

E.

Initial Determination of Claimants' Eligibility for Individual Relief

33. No later than (90) days from the date of entry of this Decree, the United States shall

provide to the City a Preliminary Relief Awards List that identifies all claimants preliminarily

eligible for relief who have submitted an Interest in Relief Form to the United States. The list

required by this Paragraph shall indicate the type(s) of relief, if any, for which the United States

has determined each such claimant is eligible, each such claimant's race and each such

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claimant's presumptive hire date, as defined in Paragraph 8, above. If the United States

determines that any claimant is not eligible for a type of relief sought by the claimant, the

Preliminary Relief Awards List will include the reason(s) for that determination.

34.

If the City disagrees with the United States' initial determinations as to any claimant's

eligibility for priority hiring relief stated in the Preliminary Relief Awards List, the City shall

notify the United States in writing no later than thirty (30) days after the service of the list. The

City's notice shall state in writing all grounds for each of its disagreements, identify and provide

contact information for all witnesses with knowledge of facts supporting its position(s), and

include a copy of all documents supporting its positions.

35. The parties shall make good faith efforts to resolve any disagreements submitted to the

United States pursuant to the preceding Paragraph. Within ten (10) days after the United States

requests, the City shall make available for interview or deposition all available officials, agents

and employees of the City with knowledge of facts supporting the City's positions stated in its

written notice. The United States shall consider the City's positions and all information

provided pursuant to this or the preceding Paragraph and, if upon its good faith consideration the

United States agrees with any of those positions, the United States shall amend the Preliminary

Relief Awards List before filing it with the Court in accordance with Paragraph 36 of this

Decree.

G.

Filing of Relief Awards List

36. Within one hundred fifty (150) days after entry of this Decree by the Court, the United

States shall file with the Court a Relief Awards List stating, for each individual listed in

Appendix B to this Decree, whether the claimant timely returned an Interest in Relief Form, the

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type(s) of relief sought by the claimant, the type(s) of relief for which the United States deems

the claimant eligible, and the claimant's presumptive hire date. In addition, for each claimant the

United States deems eligible for monetary relief, the Relief Awards List shall state the share of

the Settlement Fund that the United States has determined should be awarded to the claimant.

The United States shall simultaneously serve a copy of the Relief Awards List on the City.

37. For purposes of the Relief Awards List, the United States shall determine each claimant's

share of the total amount of monetary relief in a manner that is reasonable and equitable in

relation to the claimant population and the total amount of monetary relief available under the

Decree, and that is consistent with the provisions of this Decree. No claimant shall be offered a

monetary award that exceeds fifty (50) percent of the salary that the claimant would have been

paid between his or her presumptive hire date and date of execution of this Decree if the

claimant had been hired as an entry-level firefighter by the City on his or her presumptive hire

date. The United States retains discretion to propose a monetary relief award that is less than

fifty (50) percent of the salary the claimant would have received during his or her individual

backpay period based on evaluation of equitable factors, including but not limited to each

claimant's mitigation.

H.

Fairness Hearing on Individual Relief

38.

Upon filing the Relief Awards List described in Paragraph 36 of this Decree, the United

States shall move the Court to hold a Fairness Hearing on Individual Relief to allow the Court to

determine whether the Relief Awards List filed by the United States should be approved or

amended. The Court shall provide the parties with at least ninety (90) days notice of the date

and time set for the Fairness Hearing on Individual Relief.

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39. If the City disagrees with the United States' priority hiring relief determinations as stated in the Relief Awards List, the City may file objections with the Court no later than seventy-five (75) days prior to the date set for the Fairness Hearing on Individual Relief. The City may not object to any claimant's eligibility for priority hiring relief unless, pursuant to Paragraph 34 of this Decree, the City objected to a preliminary determination by the United States that the claimant was eligible for priority hiring relief, and may not object on any grounds or support its
objections with any documents or testimony not timely disclosed to the United States pursuant to Paragraph 34 of this Decree. The City may not object to the United States' determinations regarding monetary relief reflected in the Relief Awards List filed by the United States. The United States shall file its response to any objections filed by the City pursuant to this Paragraph no later than thirty (30) days after the objections are filed. 40. No later than seventy-five (75) days before the date set for the Fairness Hearing on Individual Relief, the United States shall send by certified U.S. mail to each claimant, addressed to the last known or corrected/updated address of such individual, a Notice of Fairness Hearing on Individual Relief and Instructions for Filing an Objection to Individual Relief and Objection form, in the formats attached as Appendix F to this Decree, as well as a cover letter, in the format attached as Appendix G, notifying the claimant of the United States' determinations regarding the claimant's eligibility for relief under the Decree, the reasons for any determination that the claimant is ineligible for any particular form of relief, and the claimant's proposed share
of the Settlement Fund, if any. 41. Claimants who object to the United States' proposed relief determinations may file
objections, in accordance with the requirements and format set forth in Appendix F, as follows:
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(a) Objections shall state the objector's name, address and telephone number; set forth a description of the objector's basis for disputing the United States' relief determination; include copies of any documentation supporting the objections; state the name and address of the objector's counsel, if any; and state whether the objector wishes the opportunity to be heard in court at the Fairness Hearing on

Individual Relief.
(b) Objections shall be submitted by mailing a copy of any objection to the

United States Department of Justice at the following address:

Meredith L. Burrell Senior Trial Attorney Employment Litigation Section U.S. Department of Justice Civil Rights Division PHB, Room 4924 950 Pennsylvania Avenue, NW Washington, DC 20530

(c)

Objections must be mailed to the United States no later than forty-five

(45) days prior to the date set for the Fairness Hearing on Individual

Relief. The United States shall serve upon the City copies of the

objections it has received no later than thirty (30) days prior to the date set

for the Fairness Hearing on Individual Relief. 42. No later than ten (10) days prior to the Fairness Hearing on Individual Relief, the United

States shall file with the Court copies of all objections received by the United States. In

addition, no later than ten (10) days prior to the Fairness Hearing on Individual Relief, the

United States and the City shall file their responses, if any, to all objections timely received by

the United States in accordance with the deadlines set forth in Appendix F.

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I.

Approval of Final Relief Awards List

43. At or following the Fairness Hearing on Individual Relief, the Court shall determine

which, if any, objections to the United States' Relief Awards List filed pursuant to Paragraph 36

of this Decree are well-founded. The Court shall then approve the Relief Awards List as

submitted or, if the Court finds that any objection(s) are well-founded, shall amend the list to

adjust the amount and nature of the relief to be awarded to the claimants consistent with such

finding, while maintaining, to the extent possible, the proportionate shares of monetary relief

awarded to all other claimants. The list approved by the Court will be the Final Relief Awards

List.
44. The Court shall find that any objection by a claimant regarding the amount of monetary relief to be awarded to a claimant is well-founded only if the amount is not reasonable and equitable in relation to the claimant population and the total amount of monetary relief to be

awarded under this Decree.
45. The Court shall find that any objection, including any objection made by the City, challenging a claimant's eligibility for priority hiring relief is well-founded only if the objector(s) prove(s) by a preponderance of the evidence that at the time the claimant took the NFST, the claimant was not qualified for the position of entry-level firefighter in the City's Fire Department using the lawful, objective hiring criteria in use by the City at that time. In the case of an objection filed by a claimant challenging his or her ineligibility for priority hiring consideration (as reflected on the Relief Awards List filed pursuant to Paragraph 36), the Court shall determine that the objection is well-founded only if it finds that, at the time the claimant took the NFST, the claimant was qualified for the position of entry-level firefighter using the

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lawful, objective hiring criteria in use by the City at that time.

J.

Notice of Relief Award and Acceptance and Release

46. No later than thirty (30) days after the Court determines, at or following the Fairness

Hearing on Individual Relief, each claimant's eligibility for relief under this Decree, the United

States shall mail by certified U.S. mail (return receipt requested) a notice of award of individual

relief to all claimants determined by the Court to be entitled to individual relief, as stated in the

Final Relief Awards List, at their current or last known address. Each notice shall include:

(a)

a statement of the amount of the monetary relief award for that claimant as stated

on the Final Relief Awards List and an explanation of the time limit for

acceptance of the monetary relief offer;

(b)

if the claimant has been determined by the Court to be eligible for consideration

for an offer of priority hire, a statement of the claimant's eligibility for such

consideration and the retroactive seniority date the claimant will receive if he or

she is ultimately hired by the City and successfully completes the applicable

probationary period;

(c)

an Acceptance of Relief and Release of Claims as described in the following

Paragraph of this Decree; and

(d)

any withholding forms provided that are necessary for the City to comply with its

withholding obligations under law.

47.

As a condition for the receipt of a monetary relief award and/or priority hiring

consideration, each claimant otherwise entitled to relief as indicated in the Final Relief Awards

List shall be required to execute a copy of the Acceptance of Relief and Release of Claims form

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set forth in Appendix H of this Decree, along with any withholding forms if the claimant is eligible for monetary relief, and return them to the United States no later than sixty (60) days after the Court approves the Final Relief Awards List. The date the Acceptance of Relief and Release of Claims form was mailed, faxed or otherwise delivered to the United States shall be deemed the date of return of the claimant's form. In the event that an Acceptance of Relief and Release of Claims form is returned by U.S. Mail but no date of mailing is indicated by a postmark of the United States Postal Service, the date of return of the Acceptance of Relief and Release of Claims form shall be deemed to be ten days prior to the date the form was received by
the Employment Litigation Section of the Civil Rights Division. A claimant's failure to return an executed Acceptance of Relief and Release of Claims form within the time allowed shall constitute a rejection of the offer of relief and shall release the parties from any further obligation under this Decree to make an award of relief to that claimant. 48. No later than seventy-five (75) days after the Court approves the Final Relief Awards List, the United States shall forward to the City copies of all executed Acceptance of Relief and Release of Claims forms and withholding forms it received from claimants listed in the Final
Relief Awards List.
49. If any claimant listed on the Final Relief Awards List rejects a monetary relief award, the United States shall reallocate the amount of monetary relief allocated to that claimant to those other claimants who timely returned all forms required by Paragraph 47, in a manner consistent with the limitation set forth in Paragraph 37 and designed to allocate the total amount of monetary relief available in the Settlement Fund while preserving the relative proportions of the claimants' shares of the Settlement Fund as stated on the Final Relief Awards List. No later than
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ninety (90) days after the Court approves the Final Relief Awards List, the United States shall either amend the Final Relief Awards List to reflect any such reallocation of monetary relief and to reflect any rejections of priority hiring relief and provide a copy of the Amended Final Relief Awards List to the City, or inform the City that no amendments are required. If the amount reflected for each claimant on the Amended Final Relief Awards List after any reallocation under this Paragraph (or on the Final Relief Awards List if no amendments are required) is the maximum amount each claimant may be entitled to receive under Paragraph 37, any additional monies remaining in the Settlement Fund shall revert to they City one hundred and fifty (150) days after the United States provides the City with the Amended Final Relief Awards List or informs the City that no amendments are required. 50. No later than thirty (30) days after the United States provides to the City the Amended Final Relief Awards List or informs the City that no amendments are required, the City shall mail a monetary relief award check to each claimant eligible for monetary relief, as listed on the Amended Final Relief Awards List (or original Final Relief Awards List if no amendments were required), in the amount stated for the claimant on the relevant List, less all appropriate taxes and other amounts required to be withheld by law in accordance with Paragraph 28. 51. No later than forty-five (45) days after the United States provides to the City the Amended Final Relief Awards List (or notifies the City that no amendment is required), the City shall provide to the United States a copy of each monetary relief award check mailed to a claimant pursuant to the preceding Paragraph, along with a statement indicating the amounts withheld from each such check and the purpose of each withholding. 52. No later than one hundred and twenty (120) days after the United States provides to the
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City the Amended Final Relief Awards List (or informs the City that no amendments are required), the City shall provide to the United States a list of all checks that have been returned to the City as undeliverable and of any other checks that have not been cashed, as well as a statement of the amount of funds remaining in the Settlement Fund. If each claimant listed on

the Amended Final Relief Awards List (or the Final Relief Awards List of no amendments are

required) did not receive the maximum award to which he or she may be entitled under Paragraph 37, the amount remaining in the Settlement Fund will be redistributed as directed by

the United States in a manner consistent with this Decree, unless the United States determines

that the amount of money represented by the returned and uncashed checks is de minimis. If

each claimant received the maximum amount of monetary relief to which he or she may be

entitled under Paragraph 37, the amount of money represented by the returned and uncashed

checks shall revert to the City within thirty (30) days of the date the City gives the United States

the notice required by this Paragraph.

K.

Priority Hiring with Retroactive Hire Date

53. The City shall make up to, but no more than, ten (10) priority hires of claimants eligible

for priority hiring relief as indicated on the Final Relief Awards List (or the Amended Final

Relief Awards List). Any claimant on the Final Relief Awards List (or the Amended Final

Relief Awards List) who did not return an Interest in Relief Form in accordance with Paragraph

47, or who returned an Interest in Relief Form rejecting priority hiring relief, will not be eligible

to receive consideration for an offer of priority hire.

54.

In order for a hire to count as a priority hire under this Decree, the person hired must be a

claimant eligible for priority hire as listed on the Amended Final Relief Awards List (or the Final

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Relief Awards List if no amendment was required), who is hired by the City after receiving an offer of priority hire as defined in Paragraph 57. A claimant is considered hired only when the claimant begins his/her first day of paid employment as a Portsmouth entry-level firefighter
trainee.
55. In order to obtain an offer of priority hire, claimants must appear for and successfully complete the City's lawful entry-level firefighter screening and selection procedures then in effect and required of all other entry-level firefighter applicants, except for any written examination requirement. The screening and selection procedures may include, but are not limited to: the applicable minimum qualification requirements, a background screening, a physical ability screening, and an oral interview. The City shall make reasonable efforts to accommodate claimants in scheduling the screening and selection procedures described in this
Paragraph.
56. If the City disqualifies any claimant listed on the Amended Final Relief Awards List (or the Final Relief Awards List if no amendment was required) from an offer of priority hire based on any part of its screening and selection process, the City shall, within ten (10) days of making such determination, send the United States written notice of its determination, the basis of its determination and any supporting documentation. If the United States disagrees with the City's determination to disqualify any claimant, it shall notify the City in writing and the parties shall make a good faith effort to meet and confer in order to resolve the disagreement. If the parties are unable to resolve the disagreement, the United States may submit an objection to the claimant's disqualification to the Court no later than thirty (30) days after receipt of the City's
written notice of determination.
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57. An offer of priority hire is made to a claimant only when the City sends to the claimant, by certified mail (return receipt requested), a written offer of employment in the entry-level
firefighter position, prominently indicating:
(a) that the offer is an offer of priority hire being made pursuant to this Decree; (b) that, at the completion of the claimant's probationary period, the claimant will be
entitled to retroactive seniority as of the claimant's presumptive hire date as
provided by this Decree;
(c) the beginning salary the City will pay the claimant and the benefits the claimant will receive if the offer is accepted, as well as the salary and benefits the claimant
will receive after completion of the probationary period;
(d) the date on which the claimant will begin employment if the offer is accepted; (e) the telephone numbers at which the claimant may contact the City and the United
States with any questions regarding the offer of priority hire; and
(f) that the claimant has at least thirty (30) days from the date on which the claimant receives the written offer of priority hire to notify the City that the claimant
accepts the offer.
On the date on which such an offer of priority hire is sent to a claimant, the City shall send a
copy of the offer of priority hire to the United States.
58. Beginning one hundred and fifty (150) days from the date the Court approves the Final Relief Awards List, the City shall not hire any person other than a claimant eligible for priority hire into an entry-level firefighter position until either: (a) ten (10) priority hires have been made or (b) all eligible claimants either have been hired as priority hires pursuant to this Decree, have
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rejected an offer of priority hire, have accepted an offer of priority hire but failed to appear to begin the fire academy on the date scheduled without good cause as determined by the United States, or have failed the post-offer medical or psychological examination regularly required of

newly-hired Portsmouth firefighters. 59. If a claimant fails to timely accept the City's offer of priority hire, or if the claimant fails to report for work on the start date identified in the City's offer of priority hire, the City's obligation to provide the offer to or make a priority hire of that claimant ceases, except for good

cause as determined by the United States. 60. No later than thirty (30) days after the beginning of any academy class for which offers

of priority hire have been made, the City shall provide to the United States a written report

identifying the name of each claimant who accepted such an offer of priority hire, whether or not

each claimant who accepted such an offer was actually employed by the City, and a statement of

the reason(s) that any claimant to whom an offer of priority hire was made was not hired, along

with all available documentation of such reason(s).

61.

On the date on which a claimant who was hired as a priority hire under this Decree

completes his/her probationary period, the City shall credit the claimant with a retroactive hire

date in the firefighter position that corresponds to the claimant's presumptive hire date as stated

on the Amended Relief Awards List (or the original Final Relief Awards List if no amendments

were required).

62.

Any claimant hired as a priority hire pursuant to this Decree who, at the time of hire, is

already certified by the Commonwealth of Virginia as a firefighter will be given credit for any

experience the claimant may have had as a certified firefighter with a department other than the

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City's Fire Department, in accordance with the City's existing policy regarding certified or

experienced firefighters at the time of hire. 63. Nothing in this Consent Decree shall preclude any claimant from applying for hire or

being hired into the entry-level firefighter position under any of the City's regular selection or

hiring processes. However, hire of a claimant under one of the City's regular selection or hiring

processes shall not be counted toward fulfillment of the City's priority hiring obligations under this Decree. Hire of a claimant under one of the City's regular selection or hiring processes shall

not affect the claimant's eligibility for monetary relief under this Decree. The City also may not

refuse to select or hire a claimant under one of its regular selection or hiring processes because

the claimant is eligible for priority hiring or monetary relief under this Decree.

VII. RECORD KEEPING AND COMPLIANCE MONITORING

64.

While this Decree remains in effect, the City shall maintain all of the following records

(including those created or maintained in electronic form):

(a)

all applications for entry-level firefighter positions in the City's Fire Department;

(b)

all documents relating to the screening, evaluation or selection of applicants for

the entry-level firefighter position;

(c)

all records relating to the development and/or validation of any selection practice

or procedure the City uses to screen or select entry-level firefighters;

(d)

all documents relating to written or verbal complaints made by any person or

organization regarding discrimination in hiring of entry-level firefighters on the

basis of race;

(e)

all documents relating to the evaluation or selection of claimants to be offered

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priority hire and/or to the employment of claimants hired as priority hires under

this Decree; and

(f)

all other documents relating to the City's compliance with the requirements of

this Decree, including but not limited to documents relating to the payment or

award of individual relief to any claimant under this Decree.

65. Except as otherwise provided in this Decree, the City will make available to the United

States, no later than thirty (30) days after the United States so requests in writing, any records

maintained in accordance with the preceding Paragraph of this Decree and any additional

documents relating to any dispute arising under the Decree.

66. When possible, all records furnished to the United States shall be provided in a

computer-readable format to be agreed upon by the parties prior to production.

67.

Within thirty (30) days after the United States so requests in writing, the City shall make

available for interview by the United States any agent, employee or official of the City who the

United States reasonably believes has knowledge of information necessary to verify the City's

compliance with the terms of this Decree or to resolve a dispute arising under this Decree.

VIII. DISPUTE RESOLUTION

68. The parties shall attempt in good faith to resolve informally any disputes that arise under

this Decree. If the parties are unable to resolve the dispute expeditiously, either party may

submit the disputed issue to the Court for resolution upon seven (7) days written notice to the

other party, unless a different time period has been specified elsewhere in this Decree.

IX. DURATION OF DECREE

69. This Decree shall be dissolved and this action shall be dismissed, without further order of

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the Court, upon the occurrence of the later of the following two events: (a) 30 days after the establishment of an eligibility list based on the City's adoption

of an alternative selection device that has been agreed upon by the United States, or approved by the Court, pursuant to Paragraphs 14 through 17 of this Decree; (b) the fulfillment of all the parties' obligations regarding Individual Relief contained in Section VI of this Decree, including crediting by the City of retroactive

seniority in accordance with the retroactive hire date assigned to claimants hired

as priority hires. If both of these events have not occurred within three years of the entry of this Decree, the

parties shall jointly move the Court for a status hearing to determine a procedure and timeline for

fulfilling the parties' obligations under the Decree.

X.

COSTS AND FEES

70.

Except as set forth in this Decree, each party shall bear its own costs and expenses

incurred as a result of obligations imposed by this Decree, including the cost of all notification

and publication procedures.

71.

Each party shall bear its own costs, expenses, and attorney's fees incurred in this

litigation.

XL MISCELLANEOUS

72. The Court shall retain jurisdiction over this Decree for the purpose of resolving any

disputes or entering any orders that may be appropriate to implement the Decree.

73.

Except as otherwise provided in this Decree, all documents required to be delivered

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under this Decree to the United States by the City shall be sent to the attention of:
Meredith L. Burrell Senior Trial Attorney Portsmouth Fire Department Settlement Team U.S. Department of Justice Civil Rights Division Employment Litigation Section-PHB 4924 950 Pennsylvania Ave., NW Washington, D.C. 20530
74. Any documents required to be delivered under this Decree by the United States to the
City shall be sent to the attention of:
Alfred W. Bates III Deputy City Attorney Office of the City Attorney 801 Crawford Street Portsmouth, VA 23704

It is so ORDERED, this 33>oi) day of

_, 2009.

MarkS. Davis United States District Judgg UNITED STATES DISTRICT JUDGE

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AGREED AND CONSENTED TO:
FOR PLAINTIFF UNITED STATES OF AMERICA:
LORETTA KING Acting Assistant Attorney General Civil Rights Division
zichowski(WI Bar No. 1014294)
Attorney for United States of America U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4906 Washington, D.C. 20530 Telephone: (202)514-3831 Facsimile: (202)514-1005 John. M.GadzichowskifS) usdoi.gov
By: _
Jodi B. Dam's (DC Bar No. 453493)
Deputy Gnief Attorney for United States of America U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4040 Washington, D.C. 20530 Telephone: (202) 307-5768 Facsimile: (202)514-1005 Jodi.Danis@usdoi.gov
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By: ^
Meredith L. Burrell (MD Bar - No Bar No. Issued) Senior Trial Attorney Attorney for United States of America U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4924 Washington, D.C. 20530 Telephone: (202) 305-9053 Facsimile: (202) 514-1005 Meredith.Burrell@usdoj.gov DANA J. BOENTE Acting United States Attorney for the Eastern District of Virginia
By: Susan L. Watt (VA Bar No. 17733) Supervisory Assistant United States Attorney Attorney for United States of America United States Attorney's Office 8000 World Trade Center 101 West Main Street Norfolk, Virginia 23510-1671 Telephone: (757)441-6331 Facsimile: (757)441-6689 Susan. Watt@usdoi.tiov
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FOR DEFENDANT CITY OF PORTSMOUTH: G. Timothy Oksman (VA Bar No. 12761)
City Attorney
Alfred W. Bates III (VA Bar No. 19834)
Deputy City Attorney
Attorneys for City of Portsmouth
Office of the City Attorney 801 Crawford Street Portsmouth, VA 23704 Telephone: (757) 393-8731 Facsimile: (757) 393-5062 oksmantffiportsmouthva.gov batesa@porstsmouthva.gov
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 </s> Case 2:09-cv-00133-MSD-LRL Document 24 Filed 04/29/10 Page 1 of 5 PageID# 405
FILED IN OPEN COURT

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

APR 2 9 2010
CLERK, U.S. DISTRICT COURT
NORFOLK. VA

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF PORTSMOUTH, VIRGINIA,
Defendant.

) ) ) Civil Action No. 2:09cvl 33 ) Judge Mark S. Davis )

ORDER This matter comes before the Court for a Fairness Hearing on Individual Relief. The Court has considered the objections to the Relief Awards List filed by Anthony Powell, Larry Elliott and Janet Jefferson, the United States' Response to Objections to the Relief Awards List (Dkt. No. 21), and the Notice of Additional Objection to Relief Awards List and United States' Response (Dkt. No. 22). The Court has also considered the sworn statement of Anthony Powell, who stated his objection in person at the hearing. Neither Larry Elliot nor Janet Jefferson appeared at the hearing. The Court has further considered the request by the United States, with the agreement of the City, that the Relief Awards List be amended to provide that the relief determination for claimant Shawn Alston include hiring relief. For the reasons stated on the record, the Court FINDS that there is good cause for the objection of Anthony Powell, and that his objection is well-founded. The Court FINDS that there is no good cause for the objections of Larry Elliott and Janet Jefferson, and that those objections are not well-founded. The Court FINDS that there is good cause to amend the Relief Awards List to provide that the relief determination for claimant Shawn Alston include hiring

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relief.
Therefore, it is ORDERED that the objection by Anthony Powell is SUSTAINED, and the objections by Larry Elliott and Janet Jefferson are OVERRULED. It is ORDERED that the Relief Awards List is amended to provide that the relief determination for claimant Shawn Alston include hiring relief. It is ORDERED that the Final Relief Awards List attached to this Order is approved and entered by this Court.

Norfolk, Virginia April 29,2010

Mark S. Davis United States District -Tnrfgg MARK S. DAVIS UNITED STATES DISTRICT JUDGE

Case 2:09-cv-00133-MSD-LRL Document 24 Filed 04/29/10 Page 3 of 5 PageID# 407

UNITED STATES v. CITY OF PORTSMOUTH, Civil Action No. 2:09cvl33 RELIEF AWARDS LIST

I.

CLAIMANTS WHO RETURNED AN INTEREST IN RELIEF FORM

Case 2:09-cv-00133-MSD-LRL Document 24 Filed 04/29/10 Page 4 of 5 PageID# 408
The notations and abbreviations in the above table are defined as follows: The "**" notation in the Last Name column indicates an untimely Interest in Relief Form. The United States determined there was good cause to accept forms from both Claimants whose forms were not timely submitted to the United States. Every other Claimant listed above timely returned his or her Interest in Relief Form. The "***" notation in the Last Name column indicates the claimant did not return an Interest in Relief Form to the United States, but was added to the Relief Award List pursuant to the Court's rulings at the Fairness Hearing on Individual Relief. "AA" in the Race column indicates African American. The Presumptive Hire Date column indicates the retroactive seniority date with which the Claimant will be credited if he or she receives and accepts an offer of priority hiring from the City of Portsmouth and meets all of the other requirements under the Consent Decree necessary for receiving retroactive seniority. See Consent Decree, Tf 61. The column is not applicable for individuals who did not seek hiring relief. "H" and "M" in the Relief Requested and Relief Determination columns stand for hiring relief and monetary relief, respectively.

' A
Case 2:09-cv-00133-MSD-LRL Document 24 Filed 04/29/10 Page 5 of 5 PageID# 409
II. INDIVIDUALS WHO DID NOT RETURN AN INTEREST IN RELIEF FORM
The following individuals were listed in Appendix B to the Consent Decree and did not return an Interest in Relief Form. Under the Consent Decree, persons who did not submit a timely Interest in Relief Form shall be deemed to have waived the right to be considered for an award of
relief. See Consent Decree, f 32.
Last Name. First Name Adair, Antonio Ash, Toumani Autry, Michael Barnes, Calvin Cooke, Clarence Covil, Darnel Dash, Eddie Davie, Emmanuel Dublin, Dannis Elliott, Larry Gray, Reinhardt Gregory, Rudolph Holmes, Darious Jefferson Janet Johns, Norman Jones, Robert Jones, Rodney Mclntyre, Darrell Muhammad, Kenneth Norfus, Andre Parker, Kenya Perry, Darius Reynolds, Brandon Roberts, Devin Royal, Jamel Stancil, Alvin Thomas, Anthony Thomas, Jonathan White, Shawnte Williams, Jonathan** Wilson, Jaymaine
**This Jonathan Williams sat for the NFST in 2004, and is a different individual than the Jonathan Williams who sat for the NFST in 2007 and who returned an Interest in Relief Form.

 </s> Case 2:09-cv-00133-MSD-LRL Document 37 Filed 01/29/13 Page 1 of 4 PageID# 517

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

FILED
JAN 2 9 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF PORTSMOUTH, VIRGINIA,
Defendant.

CLERK, US DISTRICT COURT NORFOLK, VA
Civil Action No. 2:09cvl33
Judge Mark S. Davis

FINAL ORDER This matter is before the Court for consideration of final dismissal of the Consent Decree
approved and entered by the Court on July 23, 2009. On January 23, 2013, the parties filed a Joint Status Report describing their implementation of the injunctive and individual relief provisions of the Consent Decree. Based on the parties' Joint Status Report and the entire record herein, the Court hereby finds as follows.
WHEREAS, Paragraph 69 of the Consent Decree provides that the Consent Decree shall be dissolved upon the occurrence of the later of two events: (1) 30 days after the City's adoption of an eligibility list derived from a selection procedure agreed upon by the United States, and (2) the fulfillment of the parties' obligations regarding individual relief to claimants, including the crediting of retroactive seniority to claimants who accepted priority hire positions; and
WHEREAS, the City of Portsmouth established an eligibility list on November 17, 2011 based upon a new selection procedure adopted pursuant to Paragraphs 12-18 of the Consent
Decree; and

Case 2:09-cv-00133-MSD-LRL Document 37 Filed 01/29/13 Page 2 of 4 PageID# 518

WHEREAS, the parties represented that all individual relief set forth in the Consent
Decree was fully implemented as of January 9, 2013;
The Court FINDS that the parties have fulfilled their obligations regarding injunctiveand
individual relief and that dissolution of the Consent Decree is warranted.
The Court hereby ORDERS that the Consent Decree between the parties is
TERMINATED and the underlying action is DISMISSED.
,/OTUfe-
Mark S. Davis
United States District Judge

Norfolk, Virginia
2&-^ Day of 3«n\gry. 2013

MARK S. DAVIS UNITED STATES DISTRICT JUDGE

Case 2:09-cv-00133-MSD-LRL Document 37 Filed 01/29/13 Page 3 of 4 PageID# 519

AGREED AND CONSENTED TO: FOR PLAINTIFF UNITED STATES OF AMERICA:

DELORA KENNEBREW Chief
Employment Litigation Section

By; JNUa^IK, /-J1>i^AMjU

Meredith L. Burrell (MD Bar - No Bar No. Issued)

:

Deputy Chief

!

Attorney for United States of America

j

U.S. Department of Justice

Civil Rights Division

:

Employment Litigation Section

'

950 Pennsylvania Avenue, N.W.

Patrick Henry Building, Room 4615

(

Washington, D.C. 20530

Telephone: (202)305-9053

:

Facsimile: (202)514-1105

\

Meredith,Burrell@usdoj. gov

|

By
ElizaWhR Banaszak^IL Bar 6299035)
Trial Attorney Attorney for United States of America U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4236 Washington, D.C. 20530 Telephone: (202) 305-4071 Facsimile: (202)514-1105 Elizabeth.Banaszak@usdoj.gov

Case 2:09-cv-00133-MSD-LRL Document 37 Filed 01/29/13 Page 4 of 4 PageID# 520
NEIL H. MACBRIDE
United States Attorney for the Eastern District of Virginia
By: >JLtosO*^Whd&-~
Susan L. Watt (VA Bar 17733) Supervisory Assistant United States Attorney Attorney for United States of America United States Attorney's Office
8000 World Trade Center 101 West Main Street
Norfolk, Virginia 23510-1671 Telephone: (757)441-6331 Facsimile: (757)441-6689 Susan. Watt@usdoj.gov
FOR DEFENDANT CITY OF PORTSMOUTH:
Cheran D. Cordell (VA Bar No. 65361) Deputy City Attorney Attorney for City of Portsmouth Portsmouth City Attorney's Office
801 Crawford Street
Portsmouth, Virginia 23704 Telephone: (757)393-8731 Facsimile: (757)393-5062 (facsimile) cordellc@portsmouthva.gov

 </s> Case: 2:09-cv-00133-MSD-LRL As of: 10/24/2014 01:17 PM EDT 1 of 6
U.S. District Court Eastern District of Virginia − (Norfolk) CIVIL DOCKET FOR CASE #: 2:09−cv−00133−MSD−LRL

CLOSED

United States of America v. City of Portsmouth, Virginia Assigned to: District Judge Mark S. Davis Referred to: Magistrate Judge Lawrence R. Leonard Cause: 42:2000 Job Discrimination (Race)
Plaintiff

Date Filed: 03/25/2009 Date Terminated: 01/29/2013 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Elizabeth Belle Banaszak United States Department of Justice 950 Pennsylvania Ave NW PHB 4236 Washington, DC 20530 **NA** (202) 514−3831 Fax: (202) 514−1005 Email: elizabeth.banaszak@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jodi Beth Danis U S Department of Justice Civil Rights Division 950 Pennsylvania Ave NW PHB 4022 Washington, DC 20530 **NA** (202) 514−3831 Fax: (202) 514−1005 Email: jodi.danis@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John M Gadzichowski U. S. Department of Justice Civil Rights Division 601 D St NW Room 4040 Washington, DC 20004 **NA** (202) 514−3831 Fax: (202) 514−1005 Email: john.m.gadzichowski@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Meredith Lynn Burrell U S Department of Justice Civil Rights Division 950 Pennsylvania Ave NW PHB 4924 Washington, DC 20530 **NA** (202) 514−3831 Fax: (202) 514−1005 Email: meredith.burrell@usdoj.gov

Case: 2:09-cv-00133-MSD-LRL As of: 10/24/2014 01:17 PM EDT 2 of 6

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Susan Lynn Watt United States Attorney's Office 101 W Main St Suite 8000 Norfolk, VA 23510 (757) 441−6331 Email: susan.watt@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant City of Portsmouth, Virginia

represented by Alfred William Bates , III Office of the City Attorney 801 Crawford St PO Box 820 Portsmouth, VA 23704 (757) 393−8731 Fax: (757) 393−5062 Email: batesa@portsmouthva.gov TERMINATED: 06/28/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cheran Denise Cordell Office of the City Attorney 801 Crawford St PO Box 820 Portsmouth, VA 23704 (757) 393−8731 Email: cordellc@portsmouthva.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Timothy Oksman Office of the City Attorney 801 Crawford St PO Box 820 Portsmouth, VA 23704 (757) 393−8731 Email: oksmant@portsmouthva.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/25/2009 03/25/2009 03/25/2009
03/25/2009

# Docket Text
1 COMPLAINT against City of Portsmouth, Virginia, filed by United States of America. (Attachments: # 1 Civil Cover Sheet)(lhow, ) (Entered: 03/26/2009)
2 Joint MOTION for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing by United States of America. (Attachments: # 1 proposed order)(lhow, ) (Entered: 03/26/2009)
3 Memorandum in Support re 2 MOTION for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing filed by United States of America. (lhow, ) (Additional attachment(s) added on 7/9/2009: # 1 proposed consent decree) (lhow, ). (Entered: 03/26/2009)
4 MOTION for John M. Gadzichowski to appear Pro hac vice by United States of America. (lhow, ) (Entered: 03/26/2009)

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03/25/2009 03/25/2009 04/02/2009 04/02/2009 04/02/2009 04/09/2009
04/10/2009 07/13/2009 07/13/2009
07/23/2009

5 MOTION for Jodi Beth Danis to appear Pro hac vice by United States of America. (lhow, ) (Entered: 03/26/2009)
6 MOTION for Meredith Lynn Burrell to appear Pro hac vice by United States of America. (Attachments: # 1 attachment)(lhow, ) (Entered: 03/26/2009)
7 ORDER granting 4 Motion for Pro hac vice, Appointed John M Gadzichowski for United States of America. Signed by District Judge Mark S. Davis and filed on 4/2/09. (lhow, ) (Entered: 04/03/2009)
8 ORDER granting 5 Motion for Pro hac vice, Appointed Jodi Beth Danis for United States of America. Signed by District Judge Mark S. Davis and filed on 4/2/09. (lhow, ) (Entered: 04/03/2009)
9 ORDER granting 6 Motion for Pro hac vice, Appointed Meredith Lynn Burrell for United States of America. Signed by District Judge Mark S. Davis and filed on 4/2/09. (lhow, ) (Entered: 04/03/2009)
10 ORDER GRANTED 2 Motion for Provisional Entry of Consent Decree. ORDERED that the Consent Decree agreed to and executed by the parties is provisionally approved and entered by this court. Further ORDERED that a Fairness Hearing will be held before this Court on Thursday, 7/23/09 beginning at 10:30 a.m. at the Walter E. Hoffman United States Courthouse located at 600 Granby Street, Norfolk, Virginia. Signed by District Judge Mark S. Davis and filed on 4/9/09. (lhow, ) (Additional attachment(s) added on 7/9/2009: # 1 Proposed consent decree) (lhow, ). (Entered: 04/09/2009)
Set Fairness Hearing: Fairness hearing set for 7/23/2009 at 10:30 AM (lhow, ) (Entered: 04/10/2009)
11 NOTICE by United States of America of Objection to Consent Decree (Attachments: # 1 Exhibit 1)(Watt, Susan) (Entered: 07/13/2009)
12 Memorandum in Support of Entry of the Consent Decree and in Response to Objections filed by United States of America, City of Portsmouth, Virginia. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Watt, Susan) (Entered: 07/13/2009)
13 AGREED CONSENT DECREE that the City, its officials, agents, employees, and successors, and all persons acting on its behalf or in active concert or participation with it, are enjoined from using any selection device, including a written examination for the entry−level firefighter position, that has a disparate impact upon African−American applicants on the basis of race and is not job related for that position and consistent with business necessity, or otherwise does not meet the requirements of Title VII. Further, during the term of this Consent Decree, the City shall not administer any written examination for use in the selection of entry−level firefighters without the prior agreement of the United States or, absent such agreement, prior approval of the Court (see order for specifics). No later than 90 days after the date of the entry of this Decree the City shall submit to the United States a proposal to use a selection device in place of the NFST for selecting entry−level firefighters. Upon execution of this Decree the parties shall file a joint motion for the provisional approval and entry of the Decree by the Court and shall request a fairness hearing on the Consent Decree. If the Court determines that the terms of this Decree are fair, reasonable, equitable and otherwise consistent with federal law the Court shall enter the Decree at or following the fairness hearing. Within 30 days after the date of the entry of this Decree by the Court or January 15, 2010, whichever is later, the City shall deposit the sum of $145,000 into an interest bearing account established for this purpose in a federally insured financial institution agreed to by the parties. The funds in the settlement fund, including any interest, shall be distributed by the City to claimants entitled to monetary relief under this Decree. While this Decree remains in effect, the City shall maintain prescribed records. (see order for specifics) This Decree shall be dissolved and that this action shall be dismissed without further order of the Court upon the occurrence of the latter of (a) 30 days after the establishment of an eligibility list or (b) the fulfillment of all the parties obligations regarding individual relief. If both of these events have not occurred within three years of the entry of this Decree the parties shall jointly move the Court for a status hearing. Except as set forth in this

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07/23/2009
08/11/2009 12/20/2009 12/20/2009 01/06/2010 01/08/2010 01/28/2010 01/28/2010 04/19/2010 04/26/2010 04/29/2010

Decree, each party shall bear its own costs and expenses incurred as a result of obligations imposed by this Decree, including the cost of all notification and publication procedures. Each party shall bear its own costs, expenses, and attorney's fees incurred in this litigation. The Court shall retain jurisdiction over this Decree for the purpose of resolving any disputes or entering any orders that may be appropriate to implement the Decree. Signed by District Judge Mark S. Davis and filed in open court on 7/23/09. (Attachments: # 1 Appendix)(lhow, ) (Entered: 07/23/2009)
HEARING minutes for proceedings held before District Judge Mark S. Davis: Paul McManus, OCR. Susan Watt, AUSA, Meredith Burrell and Jodi Danis, present on behalf of the United States; Alfred Bates, III and George Oksman, present on behalf of the the City of Portmsouth, VA. Hearing on Approval of Consent Decree held on 7/23/2009. Matter came on for approval of the Consent Decree; argument/presentation of counsel; comments of the Court; Court APPROVES and enters Consent Decree. Status Hearing scheduled for 7/23/12 at 10:00 a.m.; court adjourned. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (vwar) (Entered: 07/23/2009)
15 TRANSCRIPT of Proceedings held on July 23, 2009 before Judge Mark S. Davis. Court Reporter, Paul L. McManus. The transcript is a paper document which may be viewed at the Clerk's Office. (lhow, ) (Entered: 08/11/2009)
16 MOTION to Schedule Fairness Hearing on Individual Relief by United States of America. (Attachments: # 1 Proposed Order)(Watt, Susan) (Entered: 12/20/2009)
17 Memorandum in Support re 16 MOTION to Schedule Fairness Hearing on Individual Relief filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Watt, Susan) (Entered: 12/20/2009)
18 MOTION for Elizabeth Belle Banaszak to appear Pro hac vice by United States of America. (lhow, ) (Entered: 01/06/2010)
19 ORDER granting 18 Motion for Pro hac vice, Appointed Elizabeth Belle Banaszak for United States of America. Signed by District Judge Mark S. Davis and filed on 1/8/10. (lhow, ) (Entered: 01/08/2010)
20 ORDER 16 Motion to Schedule Fairness Hearing on Individual Relief is GRANTED. It is further ORDERED that a Fairness Haring on Individual Relief will be held before this Court on 4/29/10, beginning at 10:00 a.m. Signed by District Judge Mark S. Davis and filed on 1/28/10. (lhow, ) (Entered: 01/28/2010)
Set Fairness Hearing on Individual Relief for 4/29/2010 at 10:00 AM (lhow, ) (Entered: 01/28/2010)
21 Response to Objections to the Relief Awards List filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Watt, Susan) (Entered: 04/19/2010)
22 NOTICE by United States of America of Additional Objection to Relief Awards List and United States' Response (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhbiit E, # 6 Exhibit F)(Watt, Susan) (Entered: 04/26/2010)
FAIRNESS HEARING on Individual Relief held before District Judge Mark S. Davis on 4/30/2010. Elizabeth B. Banaszak and Meredith L. Burrell, attorneys with the Dept. of Justice, and Susan Watt, AUSA, present on behalf of plaintiff. Alfred W. Bates, III, attorney with the Office of the City Attorney, present on behalf of the defendant. (Court Reporter, Sue Ash, OCR.) Comments of counsel re. three objectors and background history of case. Objector sworn and testified. Argument for good cause. Court stated findings and rulings on the record. Court rules no good cause exist for two objectors and that it does exist for one. Court rules one objector to be included in the claim. Comments of Court and counsel for plaintiff to recalculate relief to include one objector. Court directed plaintiff to submit an Order including the one objector in claim with attached Relief Awards List. Court stated Court to recess and reconvene at 2:00 p.m. today for plaintiff to submit

Case: 2:09-cv-00133-MSD-LRL As of: 10/24/2014 01:17 PM EDT 5 of 6

04/29/2010 12/21/2010 12/21/2010 12/22/2010
01/26/2011 06/24/2011 06/28/2011
10/25/2011 10/26/2011 11/16/2011
12/06/2011

Order. Counsel for plaintiff addresses Court for ruling on additional amendment for claimant to be eligible for hiring relief. Court stated findings and rulings on the record. Court finds good cause for claimant to be eligible for hiring relief. Court adjourned to reconvene at 2:00 p.m. LATER at 2:00 − Counsel for plaintiff presents to Court for entry, Order for redistribution of funds. Comments of Court and counsel re. Order. Order executed, entered and filed in open Court. Court adjourned. (THIS IS A TEXT ONLY ENTRY, A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY). (evans) (Entered: 04/30/2010)
24 ORDER re. Fairness Hearing finding good cause and to amend the Relief Awards List, signed by District Judge Mark S. Davis on 4/29/10; executed, entered and filed on 4/29/10.(evans) (Entered: 04/30/2010)
25 MOTION for Extension of Time to Submit Objections, if any, to the City of Portsmouth's Determinations Regarding Priority Hiring Claimants by United States of America. (Watt, Susan) (Entered: 12/21/2010)
26 Memorandum in Support re 25 MOTION for Extension of Time to Submit Objections, if any, to the City of Portsmouth's Determinations Regarding Priority Hiring Claimants filed by United States of America. (Watt, Susan) (Entered: 12/21/2010)
27 ORDER 25 Motion for Extension of Time to Submit Objections is GRANTED; and further ORDERED that the United States shall submit its objections, if any, to the City of Portsmouth's determinations regarding priority hiring claimants on or before 1/26/11. Signed by Magistrate Judge F. Bradford Stillman and filed on 12/22/10. (lhow, ) (Entered: 12/23/2010)
28 NOTICE by United States of America Regarding the United States' Objection to the City of Portsmouth's Determination Regarding Priority Hiring Claimant (Watt, Susan) (Entered: 01/26/2011)
29 MOTION to Withdraw as Attorney by City of Portsmouth, Virginia. (Attachments: # 1 Proposed Order Withdrawal as Counsel)(Bates, Alfred) (Entered: 06/24/2011)
30 AGREED ORDER granting 29 Motion to Withdraw as Attorney. Attorney Alfred William Bates, III terminated. ORDERED that Alfred W. Bates, III, Attorney for defendant City of Portsmouth, Virginia, be hereby granted leave to withdraw as counsel of record in this case and is relieved of all responsibility as counsel of record. G. Timothy Oksman, City Attorney, and the Office of the City Attorney for Portsmouth, Virginia, will remain as counsel for the aforesaid. Signed by District Judge Mark S. Davis and filed on 6/28/11. (jcow, ) (Entered: 06/28/2011)
31 NOTICE of Appearance by Cheran Denise Cordell on behalf of City of Portsmouth, Virginia (Cordell, Cheran) (Entered: 10/25/2011)
Status Conference set for 11/16/2011 at 10:00 AM in Norfolk Courtroom 5 before District Judge Mark S. Davis. (vwar) (Entered: 10/26/2011)
32 STATUS CONFERENCE held before District Judge Mark S. Davis: Paul McManus, OCR. Susan Watt, Meredith Burrell and Elizabeth Banaszak, present on behalf of the United States. Cheron Cordell and George Oksman, present on behalf of the City of Portsmouth. Status Conference held on 11/16/2011. Matter came on for a status hearing. Comments of the Court. Comments of counsel heard re: status concerning Consent Decree. Testimony of Chief Don Horton and Captain William Quilian, Jr. Further comments of the Court. Court adjourned. (vwar) (Entered: 11/16/2011)
33 TRANSCRIPT of Status Hearing proceedings for date of 11/16/11, before Judge Mark S. Davis, Court Reporter/Transcriber Paul McManus, Telephone number 757−222−7077. NOTICE RE REDACTION OF TRANCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for

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07/13/2012 07/17/2012
10/03/2012 01/23/2013 01/29/2013

Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 1/5/2012. Redacted Transcript Deadline set for 2/6/2012. Release of Transcript Restriction set for 3/5/2012.(McManus, Paul) (Entered: 12/06/2011)
34 Status letter by both parties. (jcow, ) (Entered: 07/17/2012)
35 ORDER − The status conference currently set for July 23, 2012 is cancelled. Pursuant to the joint representations in the parties' July 13, 2012 letter to the Court, the parties are ORDERED to submit a final order by January 23, 2013, or notify the Court by then if there are any objections to submission ofsuch Order. Signed by District Judge Mark S. Davis and filed on 7/17/12. (jcow, ) (Entered: 07/17/2012)
Case reassigned to Magistrate Judge Lawrence R. Leonard. Magistrate Judge F. Bradford Stillman no longer assigned to the case. (jcow, ) (Entered: 10/03/2012)
36 STATUS REPORT by City of Portsmouth, Virginia, United States of America. (Attachments: # 1 Exhibit 1 − Eligible Candidates, # 2 Exhibit 2 − Letters to Priority Hire Claimants)(Watt, Susan) (Entered: 01/23/2013)
37 AGREED FINAL ORDER − The Court FINDS that the parties have fulfilled their obligations regarding injunctive and individual relief and that dissolution of the Consent Decree is warranted. The Court hereby ORDERS that the Consent Decree between the parties is TERMINATED and the underlying action is DISMISSED. Signed by District Judge Mark S. Davis on 1/28/13 and filed on 1/29/13. (jcow, ) (Entered: 01/29/2013)


[CONTENT] March 25, 2009 | the United States Department of Justice | the Eastern District | Virginia | African-American ||| 2004-2008 | the City of Portsmouth | African-Americans | Title VII of the Civil Rights Act | 1964 |||  ||| 2004 | 70% |||  ||| African Americans ||| 86 | African Americans ||| July 23, 2009 | the District Court | Mark S. Davis ||| African Americans ||| 2008 |||  ||| US ||| 145,000 | African-American | between 2004 and 2008 ||| 145,000 ||| second | April 29, 2010 | the District Court | Davis ||| ten | African Americans |||  ||| January 29, 2013 | the District Court | Davis | US [SUMMARY] On March 25, 2009, the United States Department of Justice filed a complaint in the Eastern District of Virginia on behalf of African-American applicants to entry-level firefighter positions.  The plaintiff alleged that, from 2004-2008, the City of Portsmouth fire department's practice of requiring applicants to pass an examination in order to be considered for an entry-level firefighter positions had a disparate impact on the hiring of African-Americans, in violation of Title VII of the Civil Rights Act of 1964.  They sought injunctive relief to stop the defendant's discriminatory hiring practices, and damages for those who have been impacted by them.

Specifically, the plaintiff alleged that, since 2004, the city has administered a standardized test that applicants must pass with a minimum score of 70%, in order to be considered for hire into entry-level firefighter positions.  The results of the test are then combined with scores from a personal interview to rank candidates for selection.  The test passage rate of white test-takers was twice that of African Americans.  The test is not essential to the job of firefighting and it prematurely eliminated 86 African Americans from the application process.

On July 23, 2009, following a hearing on the matter, the District Court (Judge Mark S. Davis) ruled that a joint settlement agreement was fair and that the court would enforce it.  The agreement held that the city could not use any selection method for entry-level firefighting positions that had a disparate impact on African Americans or was not job related (preferably both).  It could, however, use the 2008 test to fill essential vacancies as long as they did not do so in a way that maintained the discriminatory impact.  After these essential hires the city must use a new selection method.  Both of these conditions were subject to either US or court approval.

According to the settlement agreement, the city must also pay out a total of $145,000 to African-American applicants who failed the test between 2004 and 2008, but who did well on the reading comprehension part of the test.  The city had to notify these former applicants and they, in turn, had to make a claim for an award out of the $145,000.  Following a second fairness hearing, on April 29, 2010, the District Court (Judge Davis) set the final list of people eligible for this relief.

The city also had to make ten priority hires of African Americans who were discriminatorily eliminated from the application process, based on the list of people eligible for monetary relief.  These applicants must finish all of the nondiscriminatory parts of the application to be hired, but once hired they would receive retroactive seniority regarding pay and benefits.

On January 29, 2013, the District Court (Judge Davis) terminated the consent decree because the city had implemented a nondiscriminatory hiring practice with US approval, and they had met all of their obligations to individuals by either paying them their damage award or hiring them with the full benefits of retroactive seniority.