White firefighters win $1.2 million award
By Gwen Filosa
Times-Picayune (New Orleans)
Copyright 2007 The Times-Picayune Publishing Company
NEW ORLEANS — The city of New Orleans must pay $1.2 million in back wages and attorneys’ fees to a group of white firefighters who were racially discriminated against when hired in the early 1990s, a federal appeals court said Friday.
The award arises from a lawsuit filed in 1999 by Armand Bourdais and 31 other firefighters who, in 1991, filled out applications to work with the New Orleans Fire Department, yet were made to wait for one year or more to make the cut due to the city’s hiring plan later ruled as a civil rights violation.
In an effort to boost its ranks of black firefighters at the time, the city’s policy in 1991 dictated that the department would hire one African-American for every Caucasian, without first considering an applicant’s qualifications.
That policy led to black applicants getting hired before white applicants who had scored higher on the required aptitude tests. Former Fire Superintendent William McCrossen testified in 1998 for another civil lawsuit that the 1991 applicants were hired using a racial quota system.
Each applicant who sued eventually got a job as a New Orleans firefighter, but the hirings didn’t begin until September 1992. At issue for the white firefighters was that the delay cost them in wages as well as in seniority.
In April 2005, U.S. District Judge Marcel Livaudais Jr. ruled that the city owes the Bourdais group $486,913 in wages, plus interest that began accumulating in 1992. The individual awards range from $779 to $55,403 in back pay.
The city must also pay the plaintiffs’ attorneys, Clement Donelon and Vaughn Cimini, $367,000 in fees and an additional $34,000 for costs and expert witnesses.
Friday’s ruling marks an end to the eight-year litigation, said Donelon, since the city has no other further appeal than the U.S. Supreme Court -- which takes up very few cases each session. In order to appeal to the 5th Circuit, the city told the court that it had set aside $1.5 million to pay the firefighters.
Prior to 1991, NOFD hired applicants from the eligibility tests, top down, giving no preferential treatment based on race.
The city, run by former Mayor Sidney Barthelemy when Bourdais’ lawsuit was filed, argued that the 1991 group had missed the one-year statute of limitations in which to sue. But a federal court found that they were not properly notified of the quota policy, and should not have been forced to rely on the grapevine or previous lawsuits in order to know of the legal time limit.
The discrimination took place between 1992 and 1995, but Bourdais and his colleagues didn’t file until 1999, when Marc Morial had assumed the mayor’s office. The city’s liability for its 1991 hiring policy was established through two separate and prior lawsuits, specifically when McCrossen testified in 1998.
The 5th Circuit agreed Friday with the lower federal court that the plaintiffs’ time limit to sue the city began with that testimony -- well within the 1999 filing date. While the city argued that the Bourdais group should have learned long before 1998 that the discriminatory hiring policy caused their delay in getting on the payroll, the appeals court ruled otherwise.
“We cannot conclude that these plaintiffs should have known about or should have investigated potential discriminatory hiring claims,” wrote Judge Fortunato Benavides, who was joined by Judges Grady Jolly and Thomas Reavley in affirming the firefighters’ case.
Like the lower federal court, the 5th Circuit panel found that the firefighters aren’t entitled to any lost pensions, since nothing ensures all will put in the 20 years needed to become vested.
Benavides was appointed to the appeals court in 1994 by President Clinton, while Jolly was appointed by President Reagan and Reavley by President Carter.