Full opinion text
MEMORANDUM & ORDER NICHOLAS G. GARAUFIS, District Judge. For over 200 years, the New York City Fire Department has served the people of New York with uncommon bravery, skill, and determination. New York’s status as one of the world’s great cities is owed in no small part to the commitment and unflagging effort of its firefighters, who provide the city with a degree of security that is rarely acknowledged only because it is so rarely called into question. On September 11, 2001, the world witnessed the magnitude of that commitment, and nobody who was in the city on that day or in the years after will forget the heroism that was displayed by firefighters as the tragedy unfolded, or the role that the Fire Department played in rallying and sustaining the city during the aftermath. Nonetheless, there has been one persistent stain on the Fire Department’s record. For decades, black and other minority firefighters have been severely underrepresented in the Department’s ranks. According to the most recent census data, black residents make up 25.6% of New York City’s population; when this case was filed in 2007, black firefighters accounted for only 3.4% of the Department’s force. In other words, in a city of over eight million people, and out of a force with 8,998 firefighters, there were only 303 black firefighters. This pattern of underrepresentation has remained essentially unchanged since at least the 1960s. While the city’s other uniformed services have made rapid progress integrating black members into their ranks, the Fire Department has stagnated and at times retrogressed. When it comes to being a New York firefighter, blacks and other minorities face entry barriers that other applicants do not. In July 2009, this court found that the written examinations that the Fire Department used to screen and rank applicants between 1999 and 2007 had discriminatory effects on certain minority applicants, including black applicants, and failed to test for relevant job skills. These examinations unfairly excluded hundreds of qualified black applicants from the opportunity to serve as New York City firefighters. Today, the court holds that New York City’s use of these examinations constitutes a pattern and practice of intentional discrimination against blacks, in violation of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, and State and City Human Rights Laws. I. BACKGROUND The factual and procedural background of this case is substantially detailed in United States v. City of New York, 637 F.Supp.2d 77 (E.D.N.Y.2009) (“D.I. Op.” or “Disparate Impact Opinion”) (granting Federal Government’s and Intervenors’ motions for summary judgment on their Title VII disparate-impact claims). Only a general summary and the facts relevant to the instant motions are recited below. In May 2007, Plaintiff United States of America (the “Federal Government”) brought suit against the City of New York (the “City”) under Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5 & 2000e-6, alleging that the City’s procedures for screening and selecting applicants for entry-level firefighter positions discriminated against black and Hispanic applicants. (See Compl. (Docket Entry # 1) ¶¶ 1, 29-31, 34-37.) The Federal Government challenged two separate employment practices, each involving the City’s use of two written examinations to appoint applicants to the rank of entry-level firefighter in the Fire Department of the City of New York (“FDNY” or the “Department”). The first challenged practice was the City’s use of the two examinations — Written Examination 7029, first administered in February 1999, and Written Examination 2043, first administered in December 2002 — as “pass/ fail screening devices” to eliminate applicants who failed the examination from the pool of potential appointees. The second challenged practice was the “rank-order processing” of applicants, whereby applicants who passed the written examination and a physical performance test (“PPT”) were placed on a hierarchical hiring list in descending rank order of their combined written-examination and PPT scores, plus applicable “bonus points.” See generally D.I. Op., 637 F.Supp.2d at 84-86. The Federal Government alleged that these practices had a disparate impact upon black and Hispanic applicants and were not job-related for the position in question or consistent with business necessity, in violation of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k). These claims were resolved by the Disparate Impact Opinion. See generally D.I. Op., 637 F.Supp.2d 77. In September 2007, the court permitted the Vulcan Society, Inc., Marcus Haywood, Candido Núñez, and Roger Gregg (the “Intervenors”) to intervene in this action. (See Docket Entry #47.) The Intervenors challenge the same practices challenged by the Federal Government, but the scope of their claims is substantially different. The Intervenors’ Complaint alleges discrimination only against black, rather than black and Hispanic, applicants. (Intervenors’ Compl. (Docket Entry # 48) ¶¶2, 3.) The Complaint adds four defendants to the action: the FDNY, the New York City Department of Citywide Administrative Services (“DCAS”), Mayor Michael Bloomberg, and former New York City Fire Commissioner Nicholas Scoppetta (collectively, with the City, “Defendants”). Most importantly, in addition to reiterating the “disparate impact” claims from the Federal Government’s Complaint, the Intervenors allege that Defendants’ use of the pass/fail and rank-ordering procedures constituted intentional discrimination against black applicants. (Id. ¶¶ 3, 51, 56.) This allegation serves as the basis for five additional claims not found in the Federal Government’s Complaint: that Defendants’ acts violated (1) the “disparate treatment” provisions of Title VII, 42 U.S.C. §§ 2000e-2(a) & 2000e-2(m); (2) the Civil Rights Act of 1866, 42 U.S.C. § 1981; (3) the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983; (4) the New York State Human Rights Law, New York Executive Law §§ 290 and 296; and (5) New York City Local Law 59 of 1986, as amended by Local Rule 39 of 1991, §§ 8-101, et seq. (Id. ¶¶ 57-61.) This court has issued several decisions in this case that affect the posture and determination of the instant motions. First, this case has been bifurcated into separate liability and relief phases. (Docket Entry # 47.) Therefore, the questions currently before the court on the parties’ various dismissal and summary judgment motions concern only the Defendants’ liability for the charged acts, and not their obligations, if any, to remedy their behavior. Second, upon the Intervenors’ motion, this court certified a class consisting of: All black firefighters or firefighter applicants who sat for either Written Exam 7029 or Written Exam 2043 and were harmed by one or more of the following employment practices: (1) Defendants’ use of Written Exam 7029 as a pass/fail screening device with a cutoff score of 84.75; (2) Defendants’ rank-order processing of applicants who passed Written Exam 7029; (3) Defendants’ use of Written Exam 2043 as a pass/fail screening device with a cutoff score of 70.00; and (4) Defendants’ rank-order processing of applicants who passed Written Exam 2043. United States v. City of New York, 258 F.R.D. 47, 67 (E.D.N.Y.2009). Thus, the Intervenors are proceeding as a class rather than as individuals, a fact which, as will be developed below in Section IV.A.2, has important implications for the analysis of their discrimination claims. See generally 1 Lex K. Larson, Employment Discrimination § 9.03[1] (2d ed. 2008). A. Disparate Impact Ruling In July 2009, this court issued a decision granting the Federal Government’s and Intervenors’ joint motions for summary judgment on their prima facie case of disparate impact and on the City’s business necessity defense. D.I. Op., 637 F.Supp.2d at 82-83. This ruling established that the City was liable for disparate-impact discrimination under Title VII. Id. at 132. The ruling itself was based on two basic conclusions: First, Plaintiffs have shown that there is no triable issue of fact as to whether the City’s use of Written Exams 7029 and 2043 has resulted in a statistically and practically significant adverse impact on black and Hispanic firefighter applicants. Black and Hispanic applicants disproportionately failed the written examinations, and those who passed were placed disproportionately lower down than white candidates on the hierarchical hiring lists resulting from their scores. Second, although the City has had the opportunity to justify this adverse impact by showing that it used the written examinations to test for the relevant skills and abilities of entry-level firefighters, the City has failed to raise a triable issue on this defense. Under Second Circuit precedent, the evidence presented by the City is insufficient as a matter of law to justify its reliance on the challenged examinations. Id. at 83. 1. The Plaintiffs’ Prima Facie Case To establish a prima facie ease of disparate-impact discrimination, the Federal Government and Intervenors (collectively, “Plaintiffs”) presented extensive statistical evidence. For each challenged employment practice, Plaintiffs’ experts conducted analyses that demonstrated the existence of statistically significant disparities between groups of candidates. For each of the pass/fail uses of the examinations, these analyses demonstrate that the disparities between the pass rates of whites and minority candidates were between 10.5 and 33.9 units of standard deviation. For each of the rank-ordering uses of the examinations, the analyses demonstrate that the disparities between the rankings of whites and minority candidates were between 4.6 and 9.7 units of standard deviation. These statistical disparities show that black and Hispanic candidates disproportionately failed Written Exams 7029 and 2043, and were placed disproportionately lower on the eligibility lists created from those examinations. Id. at 93. Under clearly established Second Circuit precedent, this showing was more than adequate to make out a prima facie case against the City. See id. at 94. Plaintiffs’ evidence also demonstrated that the statistical disparities were significant as a practical matter. According to the expert analyses, [Approximately one thousand additional black and Hispanic candidates would have been considered for appointment as FDNY firefighters had it not been for the disparities resulting from the examinations. Further, absent these disparities, approximately 293 additional black and Hispanic candidates would have been appointed from the eligibility lists used from 2001 through 2008, and approximately 249 black and Hispanic applicants who were actually appointed would have been appointed sooner. Given that, in 2007, the FDNY had 8,998 firefighters, including only 303 black firefighters and 605 Hispanic firefighters, it is clear that these disparities have a substantial practical significance. In fact, the disparities are overwhelming. Id. The City did not dispute either the accuracy or practical significance of Plaintiffs’ statistical analyses. Id. Instead, the City attacked Plaintiffs’ reliance on statistical-significance testing as a general matter. The City’s principal contention was that the large sample sizes at issue in this case rendered statistical-significance testing unreliable because, as the City stated in its opposition papers, “the larger the group we are examining, the more candidates who sit for the exam, the greater our likelihood that some of them will not do as well as others.” (City’s Memorandum of Law in Opposition to Pis.’ Motion for Summary Judgment on Prima Facie Case of Disparate Treatment (Docket Entry # 256) at 5.) As noted in the opinion, this argument flew in the face of common sense, Second Circuit precedent, the testimony of one of the City’s statistical experts, and the City’s own admissions. See D.I. Op., 637 F.Supp.2d at 94-96. “Rather than undermining confidence in statistical significance testing, large sample sizes make such testing more reliable. Larger sample sizes create a greater likelihood that random differences between individuals will even out among all groups, and a lower likelihood that significant differences between the performance of racial or ethnic groups will have resulted from chance.” Id. at 95. The City also argued that Plaintiffs’ statistical analyses “inappropriately compare[d] the racial disparity in test results to a hypothetical world in which racial and ethnic groups perform equally well,” id. at 96, and that the disparities between white, black, and Hispanic candidates could be explained by native differences in those groups’ “capability and preparedness,” id. at 97. This argument misconstrued both the purpose of statistical-significance analysis and the nature of the prima facie disparate-impact case. Because the goal of statistical-significance testing is to determine whether an observed disparity is the product of chance rather than some other factor, statistical testing properly assumes equal aptitude across groups. Id. This determination is crucial at the prima facie stage, because the elimination of random chance as an explanation for the observed disparity permits the plaintiff to carry its burden of demonstrating that the disparity is attributable to the challenged employment practice. The City’s identification of a possible explanation (however dubious) for the disparity, which would only be germane to a second-stage “business necessity” defense, was irrelevant to the question of whether Plaintiffs had demonstrated the existence of a practice that adversely affected minority applicants. Id. Finally, the City urged the court to rely on the so-called “80% Rule,” rather than statistical significance testing, to assess Plaintiffs’ statistical evidence. The 80% Rule derives from a Department of Labor regulation stating that a selection rate for a racial group that is less than four-fifths the selection rate for the group with the highest rate (in this case, white applicants) “will generally be regarded by Federal enforcement agencies as evidence of adverse impact.” 29 C.F.R. § 1607.4(D). This court denied the City’s request, observing that the 80% Rule is merely a “rule of thumb” that is not binding on courts and may be ignored when other statistical evidence demonstrates disparate impact. D.I. Op., 637 F.Supp.2d at 98. Given the large sample size and overwhelming standard-deviation evidence, the court refused to exclude statistical-significance testing in favor of the 80% Rule. Id. Accordingly, based on the strength of Plaintiffs’ statistical evidence and the City’s inability to demonstrate any material dispute regarding that evidence, this court granted summary judgment to Plaintiffs on their prima facie case of disparate-impact discrimination. Id. at 98-99. 2. The City’s Business-Necessity Defense The court next turned to the merits of the City’s business-necessity defense, which shields employers from Title VII liability if they can demonstrate that a challenged practice is justified by legitimate business and job-related considerations. D.I. Op., 637 F.Supp.2d at 99. To be considered job-related, an employment examination must be properly “validated,” Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 383 (2d Cir.2006), meaning that it must be “shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). The validity of an employment examination is assessed using the five-part test set forth in Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission: (1) the test-makers must have conducted a suitable job analysis; (2) they must have used reasonable competence in constructing the test itself; (3) the content of the test must be related to the content of the job; (4) the content of the test must be representative of the content of the job; and (5) there must be a scoring system that usefully selects from among the applicants those who can better perform the job. 630 F.2d 79, 95 (2d Cir.1980). This court held that the City had failed to meet its burden to show that the challenged examinations were job-related under the Guardians standard. The undisputed facts established, inter alia, that (1) the City could not demonstrate a correspondence between the tasks or work behaviors required of entry-level firefighters and the abilities that the examinations were meant to measure, D.I. Op., 637 F.Supp.2d at 110-115; (2) the City failed to consult outside experts to construct appropriate test questions, and did not conduct sample testing on the questions it adopted, id. at 115-16; (3) the examinations did not actually test for the job-related abilities they were intended to test for, .id. at 116-18; (4) the examinations failed to test for cognitive and non-cognitive abilities that are important to the job, the cognitive abilities that were tested for were not the most important cognitive abilities for the job, and as a general matter, non-cognitive abilities were more important to the job than cognitive abilities, id. at 118-22; (5) the examinations were written at an unnecessarily high reading level, id. at 122-23; and (6) the chosen cutoff scores for the examinations did not bear any relationship to the necessary job qualifications, id. at 123-28. The undisputed facts also demonstrated that the rank-ordering procedure failed to distinguish between qualified and unqualified candidates because it relied on the faulty written examinations and produced significant differences in ranking based on statistically insignificant differences in test performance. Id. at 128-31. Moreover, the City could not show that an applicant’s ranking corresponded to future job performance. Id. at 130-31. Because Plaintiffs had demonstrated the absence of any genuine issue of material fact with respect to their prima facie case of discrimination and the City’s business-necessity defense, and because the undisputed evidence was insufficient to demonstrate that the City’s pass/fail and rank-ordering practices were job-related, this court found that the City was liable as a matter of law for disparate-impact discrimination against black and Hispanic firefighter applicants in violation of Title VII. Id. at 132. B. Prior Litigation 1. The Vulcan Society Litigation As this court noted in its previous opinion, “[t]his is not the first time the City has been brought to federal court to defend its entry-level firefighter examinations against charges of discrimination.” D.I. Op., 637 F.Supp.2d at 81. In 1973, Judge Edward Weinfeld in the Southern District of New York held that the City’s written and physical examinations for entry-level firefighters violated the Equal Protection Clause because of their discriminatory impact on black and Hispanic applicants. See Vulcan Soc’y of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 360 F.Supp. 1265, 1269 (S.D.N.Y.1973) (hereafter, “Vulcan Society ”), affirmed in relevant part by 490 F.2d 387 (2d Cir.1973). The Vulcan Society opinion is instructive not only for its breadth and acuity, but because it furnishes proof of an old adage: the more things change, the more they remain the same. In Vulcan Society, the Vulcan and Hispanic Societies brought suit against the New York City Civil Service Commission, among others, alleging that the FDNY’s hiring procedures discriminated against blacks and Hispanics in violation of the Equal Protection Clause. Vulcan Society, 360 F.Supp. at 1266. The gravamen of plaintiffs’ claim was that the FDNY’s use of a pass/fail written examination and a rank-ordering protocol based on applicants’ performance on the written examination resulted in the disproportionate exclusion of minority applicants. Plaintiffs further alleged that the examination did not test the skills and qualifications needed to become a firefighter. Id. at 1266, 1288. The testing procedure at issue in Vulcan Society was strikingly similar to the testing procedures in this case. Applicants were required to take a written examination, which was administered approximately every four years; those who scored below 70% were disqualified, while those who passed were placed on an “eligible list” in order of their scores. Id. at 1267. As openings occurred in the FDNY, they were filled by candidates in order of their ranking on the eligible list, provided the candidates passed a second-stage process consisting of a physical fitness test, medical examination, and character evaluation. Id. Judge Weinfeld held a bench trial, at which plaintiffs used statistical evidence to make out a prima facie case of discrimination. These statistics demonstrated that, while 11.5% of the applicants who took the written examination were black or Hispanic, only 5.6% of the applicants who passed the written examination and were called to take the second-stage physical and medical examinations were black or Hispanic. Id. at 1268. Plaintiffs’ statistical expert established that, among those applicants who passed the written and second-stage examinations, the ratio of whites to minorities was 2.3 to 1. Id. at 1269. Among those applicants who ranked in the top half of the eligible list and passed both sets of examinations, the ratio of whites to minorities was 2.8 to 1. Id. Plaintiffs’ expert testified that this latter disparity was “statistically significant to a very high degree,” in that the odds of such a result obtaining by chance were less than 1 in 10,000. Id. The expert concluded, in sum, that “the entire examination process had a substantial discriminatory impact on the minority groups.” Id. Judge Weinfeld also noted the “overwhelming disparity between minority representation in the Department (5%) and in the general population of New York City within the age group eligible for appointment (32%),” an “extreme incongruity” that was “confirmatory of plaintiffs’ statistical showing.” Id. Defendants did not contest the accuracy of the plaintiffs’ statistical analyses. Id. Instead, they enfiladed the accuracy of the raw data relied on by plaintiffs, the sufficiency and scope of the data sample, and the precision of the expert’s findings. Id. at 1270-72. Judge Weinfeld rejected each of defendants’ arguments, three of which bear mentioning here. First, in contradistinction to the City’s current defense strategy, the Vulcan Society defendants argued that the sample size at issue was too small to yield meaningful analysis. Judge Weinfeld declared this attack to be “without substance,” as the 14,168 candidates who sat for the written examination and the 7,987 candidates on the eligible list constituted a data sample that was “certainly sufficient ... to yield meaningful information.” Id. at 1271. Second, defendants argued, as the City did in the present case, that “the adverse impact of the examination on minorities [was] explicable in terms of the educational and cultural deprivations of minority groups.” Id. at 1272. Judge Weinfeld rejected that contention in language that the City would have done well to heed here: It is no defense ... that the discriminatory impact of the examination procedure may be due to socio-economic disadvantages suffered by minority groups. The very essence of the concept of de facto discrimination ... is that when state action which is neutral on its face unintentionally disadvantages racial minorities in areas such as public employment, the state has the burden of demonstrating that the action in question has at least a substantial relation to a legitimate state interest such as hiring qualified employees. Inquiries into ultimate causes are irrelevant. The law views de facto racial classifications, whatever their ultimate sociological explanation, as sufficiently suspect to place upon the state a heavy burden of justification. Id. Finally, defendants objected that plaintiffs’ evidence did not prove that the adverse impact was the result of the written examination, rather than the second-stage examination procedures. Id. at 1271. Judge Weinfeld found, to the contrary, that the evidence established the “overwhelming likelihood” that the written portion standing alone had a substantial discriminatory impact. Id. at 1272. Moreover, any apportionment of fault among the constituent parts of the testing procedure could not obscure the ultimate conclusion that the overall procedure had a “significant and substantial discriminatory impact upon minorities.” Id. at 1272. Plaintiffs’ statistics therefore made out a prima facie case of discrimination. Id. Judge Weinfeld further held that defendants had failed to carry their burden of demonstrating that the examination was job-related. Some of the reasons for this holding have the quality of déjá vu. For example, Judge Weinfeld found that (1) the FDNY failed to validate the written examination, inasmuch as the Department failed to identify the job-related abilities that the examination was meant to test, id. at 1274-75; (2) many of the questions on the examination had “little apparent relationship to the job of fireman” and therefore did not test for job-related abilities, id. at 1276; (3) miniscule differences in test performance produced significant differences in applicants’ rankings, id.; and (4) defendants failed to demonstrate that an applicant’s performance on the written examination corresponded to future job performance, id. at 1273. Accordingly, Judge Weinfeld held that plaintiffs had proved that the FDNY’s written examination violated the Equal Protection Clause because of its discriminatory impact on black and Hispanic applicants. Id. at 1277. 2. History of the FDNY Posh-Vulcan Society As part of the remedy in Vulcan Society, Judge Weinfeld ordered the defendants to hire one minority applicant for every three non-minority candidates hired. Vulcan Soc. of New York City Fire Dep’t. Inc. v. Civil Serv. Comm’n, 490 F.2d 387, 391 (2d Cir.1973). This order and the underlying liability finding were upheld by the Second Circuit. Id. at 398-99. Judge Weinfeld also ordered the defendants to create a new examination that did not discriminate against blacks and Hispanics, as described in Berkman v. New York, 536 F.Supp. 177, 183 (E.D.N.Y.1982). In 1973, the City, using money obtained from a Congressional grant, contracted with a private consulting firm to construct validated written and physical tests; three years later, however, the City cancelled these contracts, ostensibly due to a fiscal crisis. Id. at 184. The Vulcan Society injunction lapsed in 1977. (Int. 56.1 ¶ 9.) That year, the City abandoned the 3:1 hiring ratio and instituted a hiring procedure that required applicants to take a cognitive examination and demonstrate minimum appointment requirements such as college credits, a driver’s license, and certified first responder with defibrillation training. (Affidavit of Paul Washington (Docket Entry # 125) (“Wash. AS") ¶ 5.) The subsequent history of the FDNY demonstrates that whatever practical effect Judge Weinfeld’s injunction may have had on minority hiring dissipated shortly after the injunction expired. Indeed, the history suggests that any such effect constituted little more than a brief departure from an otherwise relentless pattern. In 1963, ten years before the Vulcan Society litigation, 4.15% of all FDNY employees (including non-uniformed employees) were black. (Id. ¶ 1.) In 1971, that number was essentially unchanged. (Id.) At the time of the Vulcan Society litigation, blacks and Hispanics constituted 32% of the City’s population, but only 5% of the Department. Vulcan Society, 360 F.Supp. at 1269. In 1990, almost two decades later, blacks made up 29% of the City’s population, but only 4% of firefighters. (Int. 56.1 ¶ 11.) In 2002, 25% of the City’s residents were black, compared to only 2.6% of its firefighters. D.I. Op., 637 F.Supp.2d at 80. Between 1991 and 2007, black firefighters never constituted more than 3.9% of the force, and by the time this case was filed in 2007, the percentage of black firefighters in the FDNY had dropped to 3.4%. (Int. 56.1 ¶¶ 14-15.) This pattern of underrepresentation becomes starker when juxtaposed against the hiring patterns of other large municipal fire departments. The following table, based on a report by the City’s Equal Employment Practices Commission (“EEPC”) and data from the most recent census, compares the racial composition of the fire departments and local populations in eight of America’s nine largest cities : Table 1. The ratios in the right-hand column of Table 1 measure the degree to which the actual percentage of blacks in each municipal fire department departed from the percentage that would obtain if blacks were represented in the fire department in proportion to their representation in the local population. What this table demonstrates is that, of the fire departments in the nine largest American cities, two had roughly the expected number of black firefighters, and in a third, the Los Angeles Fire Department, black firefighters were actually overrepresented. Four of these fire departments had between one-half and seven-tenths the expected number of blacks. The FDNY, however, had approximately one-tenth the expected number of blacks. The proportional representation of blacks in the FDNY was five times lower than the municipal fire department with the next-lowest ratio, and over 11 times lower than the department with the highest such ratio. This pattern of underrepresentation has been repeated at the local level as well. In May 2001, the New York City Public Advocate sent a letter to the Fire Commissioner and Deputy Mayor that included the following table illustrating that “the firefighter force is the least diverse ethnically [and] racially ... of all the uniformed services in the City”: Table 2. As Table 2 demonstrates, the proportional representation of blacks was over four times greater in the New York City Police Department (“NYPD”), over six times greater in the Sanitation Department, and over 16 times greater in the Correction Department. This disparity has only become more pronounced: as of June 2009, the percentage of black rank- and-file officers in the NYPD had increased to 18%, while the percentage of black firefighters had actually decreased to 3.4%. II. DEFENDANTS’ MOTIONS TO DISMISS Motions from both parties are currently before the court. The Intervenors have moved for summary judgment against all Defendants on all claims that were not resolved by the Disparate Impact Opinion. (Docket Entry #343.) The Intervenors’ remaining claims allege four types of illegality: (1) disparate treatment, in violation of Title VII; (2) intentional discrimination, in violation of the Equal Protection Clause and 42 U.S.C. § 1981; (3) intentional discrimination, in violation of State and City human rights laws; and (4) disparate impact, in violation of State and City human rights laws. Defendants have filed a motion seeking: (1)dismissal of all claims against the FDNY and DCAS; (2) dismissal of the Title VII claims against Mayor Bloomberg and Commissioner Scoppetta; (3) dismissal of the intentional discrimination claims against the City, Mayor Bloomberg, and Commissioner Scoppetta; and (4) in the alternative, summary judgment with respect to the intentional-discrimination claims against Mayor Bloomberg and Commissioner Scoppetta, on the basis of qualified immunity. (See Docket Entry # 319.) Because Defendants’ three dismissal motions seek to pare down the number of claims and defendants, the court discusses them here first in order to clarify the issues for summary judgment. Mayor Bloomberg’s and Commissioner Scoppetta’s entitlement to qualified immunity, however, turns on questions of constitutional law that are necessarily raised by the Intervenors’ motion for summary judgment, and the court will return to the Defendants’ qualified immunity motion in Section VII, following its discussion of the Intervenors’ intentional discrimination claims. A. Dismissal of All Claims Against the FDNY and DCAS Defendants assert, and Intervenors do not dispute, that the FDNY and DCAS are not suable entities. Under Rule 17(b)(3) of the Federal Rules of Civil Procedure, a party’s amenability to suit in federal court is determined by the law of the state in which the district court is located. The State of New York has neither stated nor implied that the FDNY or DCAS can be sued individually. To the contrary, under the New York City Charter, “all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law.” N.Y. City Charter Ch. 17, § 396. It follows that the FDNY and DCAS are not suable entities, and that all claims against them must be dismissed. See Warheit v. City of New York, 2006 WL 2381871, at *13, 2006 U.S. Dist. LEXIS 58167, at *40 (S.D.N.Y. Aug. 15, 2006) (FDNY not suable); Damino v. City of New York, 2004 WL 2032515, at *3, 2004 U.S. Dist. LEXIS 18243, at *11 (E.D.N.Y. Sept. 13, 2004) (DCAS not suable). B. Dismissal of Title VII Claims Against Mayor Bloomberg and Commissioner Scoppetta It is firmly established that individuals are not subject to liability under Title VII. Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir.2004); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000) (per curiam). Accordingly, the Title VII claims against Mayor Bloomberg and Commissioner Scoppetta are dismissed in their entirety. C. Dismissal of Intentional Discrimination Claims Against the City, Mayor Bloomberg, and Commissioner Scoppetta Defendants move to dismiss the Intervenors’ Complaint on the ground and to the extent that it fails to state a claim for intentional discrimination against the City, Mayor Bloomberg, and Commissioner Scoppetta. The timing of this motion is curious, to say the least. The Intervenors filed their complaint in September 2007, and Defendants filed the instant motion in September 2009. (See Docket Entries## 48, 319.) In the two-year interim, there were 270 entries in the case docket. The parties have engaged in extensive motion practice, and this court has issued rulings denying the Intervenors’ motion to amend their complaint (Docket Entry # 182), denying Defendants’ motion to dismiss the Intervenors’ Complaint on timeliness grounds (Docket Entry #231), partially granting the Intervenors’ motion for class certification (Docket Entry #281), and granting the Intervenors’ request to compel the deposition of Mayor Bloomberg (Docket Entry # 301). The parties have also engaged in extensive discovery, the fruits of which are currently before the court in the form of five separate declarations submitted in connection with the parties’ various motions. Interrogatories and document requests have been exchanged, litigated, and answered; the named defendants have been deposed; experts on both sides have exchanged reports and been deposed; and both sides have moved for summary judgment. In short, this case has moved well beyond the pleadings. Nonetheless, Defendants now assert for the first time that the Intervenors’ Complaint is deficient on its face. Although Defendants decline to cite any particular Federal Rule of Civil Procedure in support of their motion (see Def. MTD Mem. at 1-7), it is clear from the substance of the motion that Defendants seek relief under Rule 12(c). Specifically, Defendants assert that the allegations against the City and individual defendants fail to meet the pleading standard announced in Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In addition to their motion papers, both parties have submitted declarations and exhibits in support of or in opposition to Defendants’ motion to dismiss. (See, e.g., Levy Deck; Wahsington Aff.; Fraenkel MTD Deck; Fraenkel SJ Deck; Pierre Deck; Morrongiello Deck; Johnston Deck) Both parties’ submissions are voluminous, and draw heavily from the discovery materials produced in this litigation. The exhibits to these declarations include, inter alia, expert testimony, deposition transcripts, city administrative reports, scores of letters and emails, reports and communications from the EEPC and Equal Employment Opportunity Commission, and the deposition testimony of numerous individuals. When matters outside the pleadings are presented in connection with a motion to dismiss for failure to state a claim, “a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material.” Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000) (internal quotation marks omitted). This rule applies where, as here, a motion to dismiss for failure to state a claim upon which relief can be granted is brought under Rule 12(c) rather than Rule 12(b)(6). Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988). In either case, the District Court has broad discretion to determine whether to convert a motion to dismiss into one for summary judgment. Carione v. United States, 368 F.Supp.2d 186, 191 (E.D.N.Y.2005). Because a summary judgment motion can result in a binding determination on the merits, the non-movant must be given notice and an opportunity to respond before the court converts a motion to dismiss. Groden v. Random House, 61 F.3d 1045, 1052 (2d Cir.1995). However, formal notice is unnecessary when “the parties were ... apprised of the likelihood of conversion by less formal or direct means and, in fact, had a sufficient opportunity to present the materials relevant to a summary judgment motion.” 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004). “The essential inquiry is whether the [nonmovant] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.” In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir.1985). Significantly, “[a] party cannot complain of lack of a reasonable opportunity to present all material relevant to a motion for summary judgment when both parties have filed exhibits, affidavits, counter-affidavits, depositions, etc. in support of and in opposition to a motion to dismiss.” Id. The court finds that conversion is appropriate in this case. Both parties have presented substantial factual materials in connection with the dismissal motion. Moreover, both parties have submitted materials and briefing in connection with the Intervenors’ motion for summary judgment. That is, the parties have not only had a “reasonable . opportunity to meet facts outside the pleadings” — they have in fact engaged in full motion practice over facts outside the pleadings. Given the highly developed record before the court, neither party should be surprised by the court’s decision to convert Defendants’ motion to dismiss to a motion for summary judgment, and neither party should be surprised by the court’s reluctance, at this late date, to ignore years’ worth of discovery materials and confine its inquiry to the facial sufficiency of the Intervenors’ Complaint. Accordingly, the court converts Defendants’ motion to dismiss the intentional discrimination claims against the City, Mayor Bloomberg, and Commissioner Scoppetta into a motion for summary judgment. Because the Intervenors have moved for summary judgment on the same claims, and because the disposition of both motions will turn on common questions of law and fact, the court addresses the motions jointly in Sections V and VII below. D. The Intervenors’ Remaining Claims Based on the disposition of Defendants’ dismissal motions, the Intervenors’ motion for summary judgment is reduced to the following claims: (1) disparate treatment under Title VII against the City only; (2) intentional discrimination under § 1981 and the Equal Protection Clause; against the City only; (3) intentional discrimination under the State and City Human Rights laws against the City; (4) intentional discrimination under federal and state law against Mayor Bloomberg and Commissioner Scoppetta, subject to a finding of qualified immunity; and (5) disparate impact under state and local law, against the City only. The court considers qach of these claims in turn. III. SUMMARY JUDGMENT STANDARD “Summary judgment is appropriate when the pleadings and admissible evidence proffered to the district court show that there is ‘no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008) (quoting Fed.R.Civ.P. 56(c)). “Material facts are those which ‘might affect the outcome of the suit under the governing law,’ and a dispute is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Conclusory allegations or denials are insufficient to create a genuine issue of material fact. Fed.R.Civ.P. 56(e)(2); Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Factual disputes that are irrelevant or immaterial to the disposition of a case cannot preclude a grant of summary judgment. See Loria v. Gorman, 306 F.3d 1271, 1282-83 (2d Cir.2002). In considering a motion for summary judgment, the court construes the facts “in the light most favorable to the nonmoving party,” and draws “all reasonable inferences in its favor.” SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009). “[T]he moving party bears the burden of demonstrating the absence of a genuine issue of material fact.” Baisch v. Gallina, 346 F.3d 366, 371-72 (2d Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In response, the nonmoving party “ ‘mustj do more than simply show that there is some metaphysical doubt as to the material facts ....’” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). IV. INTERVENORS’ TITLE VII PATTERN-OR-PRACTICE DISPARATE TREATMENT CLAIM A. Proving Pattern-or-Practice Disparate Treatment Claims 1. Standard of Proof The Intervenors assert that the City’s use of the written examinations and rank-ordering procedure to screen entry-level firefighters constitutes a pattern or practice of intentional discrimination against black applicants. This “disparate treatment” claim differs significantly from the “disparate impact” claim previously litigated in this case. Whereas disparate impact liability can be established by proof that an employer’s policy had unjustified adverse effects on a protected group, a disparate treatment claim requires additional proof that the challenged policy was adopted with the intent to discriminate against the protected group. Ricci v. DeStefano, — U.S. -, 129 S.Ct. 2658, 2672-73, 174 L.Ed.2d 490 (2009). In pattern-or-practice disparate treatment cases, plaintiffs must establish by a preponderance of the evidence that the defendant took the challenged action “because of’ its adverse effects on the protected class, Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-986, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988), and that such intentional discrimination was the defendant’s “standard operating procedure.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). 2. Mode and Order of Proof Courts recognize that “direct evidence of intentional discrimination is hard to come by,” Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O’Connor, J. concurring), and that plaintiffs will rarely be able to produce “ ‘eyewitness’ testimony as to the employer’s mental processes.” USPS Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). Accordingly, the Supreme Court has devised a system of shifting evidentiary burdens for Title VII disparate-treatment claims that is “intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see also Watson, 487 U.S. at 986, 108 S.Ct. 2777. The plaintiff bears “the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion .... ” Teamsters, 431 U.S. at 358, 97 S.Ct. 1843; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The burden then shifts to the defendant to “provide a nondiscriminatory explanation for the apparently discriminatory result.” Teamsters, 431 U.S. at 360 n. 46, 97 S.Ct. 1843; see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. This general back-and-forth framework applies to both individual and pattern-or-practice suits. Teamsters, 431 U.S. at 358, 360, 97 S.Ct. 1843. A class-action pattern-or-practice suit is typically divided into “liability” and “remedial” phases, as has been done in this case. See id. at 360-62, 97 S.Ct. 1843; United States v. City of New York, 2007 WL 2581911, 2007 U.S. Dist. LEXIS 65668 (E.D.N.Y. Sept. 5, 2007). At the liability stage, the plaintiffs must first make out a prima facie case of a policy, pattern, or practice of intentional discrimination against the protected group. Teamsters, 431 U.S. at 360, 97 S.Ct. 1843; Cooper v. Federal Reserve Bank, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). At this stage, the plaintiffs are “not required to offer evidence that each person [who] will ultimately seek relief was a victim of the employer’s discriminatory policy. [Plaintiffs’] burden is to establish a prima facie case that such a policy existed.” Teamsters, 431 U.S. at 360, 97 S.Ct. 1843. In order to meet this burden, plaintiffs typically depend on two types of circumstantial evidence: “(1) statistical evidence aimed at establishing the defendant’s past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination.” Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 158 (2d Cir.2001) (internal quotation marks omitted). As the Supreme Court has observed, statistical evidence of workforce disparities is particularly probative of widespread intentional discrimination: Statistics showing racial or ethnic imbalance are probative in [disparate-treatment cases] because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of long-lasting and gross disparity between the composition of a work force and that of the general population thus may be significant .... Teamsters, 431 U.S. at 340 n. 20, 97 S.Ct. 1843. Therefore, although anecdotal evidence may be useful to bring “the cold numbers convincingly to life,” id. at 339, 97 S.Ct. 1843, statistical evidence is sufficient, on its own to establish a prima facie case. Robinson, 267 F.3d at 158-59; Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 604 (2d Cir.1986). If the plaintiffs make out a prima facie case, “the burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the [plaintiffs’] proof is either inaccurate or insignificant.” Teamsters, 431 U.S. at 360, 97 S.Ct. 1843. The Second Circuit has clarified the means by which a defendant can meet this burden of production: Three basic avenues of attack are open to the defendant challenging the plaintiffs’] statistics, namely assault on the source, accuracy, or probative force. The defendant can present its own statistical summary treatment of the protected class and try to convince the fact finder that these numbers present a more accurate, complete, or relevant picture than the plaintiffs’ statistical showing. Or the defendant can present anecdotal and other non-statistical evidence tending to rebut the inference of discrimination. The prudent defendant will follow all three routes if possible, presenting its own version of the numbers game, attempting to undermine the plaintiffs’ version with specific attacks on [the] validity of the plaintiffs’ statistics, and garnering non-statistical evidentiary support as well. Robinson, 267 F.3d at 159 (quoting 1 Arthur Larson et al., Employment Discrimination § 9.03(2), at 9-23 to 9-24 (2d ed. 2001)). If the defendant either does not respond or fails to sustain its burden, judgment must be entered for the plaintiffs. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. If the defendant meets its burden of production, “the trier of fact then must consider the evidence introduced by both sides to determine whether the plaintiffs have established by a preponderance of the evidence that the defendant engaged in a pattern or practice of intentional discrimination.” Robinson, 267 F.3d at 159. Upon a finding that such a policy existed, “the court may proceed to fashion class-wide injunctive relief.” Id. If, as in this case, the plaintiffs seek individual relief such as back pay or compensatory recovery in addition to injunctive relief, the court must conduct an additional “remedial” phase. The proof at this phase (that is, each individual’s entitlement to relief) is also established using a burden-shifting framework. By virtue of the adverse finding against the employer at the “liability” stage, however, class plaintiffs “enter this second phase with a presumption in their favor ‘that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.’ ” Id. (quoting Teamsters, 431 U.S. at 362, 97 S.Ct. 1843). Thus, a class plaintiff at the remedial stage “need only show that he or she suffered an adverse employment decision and therefore was a potential vietim of the proved class-wide discrimination. The burden of persuasion then shifts to the employer to demonstrate that the individual was subjected to the adverse employment decision for lawful reasons.” Id. at 159-60 (internal quotation marks omitted). B. The Intervenors’ Prima Facie Case As outlined above and detailed in the Disparate Impact Opinion, the Intervenors have presented sufficient undisputed statistical evidence to support a prima facie case that the City had a pattern or practice of discriminating against black applicants. The expert analyses that Plaintiffs used to make out their disparate impact case establish that, from February 2001 through at least January 2008, the City engaged in four employment practices — the use of Exams 7029 and 2043 on a pass/fail basis, and the rank-order processing of applicants on the basis of their performance on the two examinations— that had statistically significant adverse effects on black candidates. See D.I. Op., 637 F.Supp.2d at 85-86, 89-92. Plaintiffs’ analyses demonstrate that while the pass rate of white candidates for Exam 7029 was 89.9%, the pass rate of black candidates was only 60.3%, a disparity equivalent to 33.9 standard deviations. Id. at 88. The practical effect of this disparity, according to Plaintiffs’ experts, is that somewhere between 457 and 519 black candidates who would not have failed the examination but for the disparity were eliminated from consideration. Id. According to one expert’s calculations, 114 additional black firefighters would have been appointed to the force absent the disparity. Id. For Exam 2043, the pass rates of white and black candidates were 97.2% and 85.4%, respectively, a disparity equivalent to 21.8 units standard deviations. Id. at 89. Plaintiffs’ experts estimated that, absent the disparity, between 150 and 165 black candidates would have passed Exam 2043, and 30 additional black firefighters would have been appointed to the force. Id. The net effect of the City’s pass/fail examination policy is that between 607 and 684 black applicants who would not have failed the exams but for the disparity were eliminated, and 144 black firefighters were denied appointments they would have otherwise received. With respect to the rank-ordering use of the examinations, Plaintiffs’ experts determined that, on average, black candidates who passed Exam 7029 were ranked 630 places lower than white candidates, a disparity equal to 6.5 units standard deviations. Id. at 90. As a result, 68 out of 104 black candidates were appointed to the force a total of approximately 20 years later than they would have been absent the disparity. Id. Within the pool of applicants who passed Exam 2043, black candidates were ranked an average of 974 places lower than white candidates, amounting to a disparity of 9.6 standard deviations. Id. at 91. As a practical matter, 44 out of 80 black candidates were appointed a total of approximately 14 years later than they would have been absent the disparity. Id. The net effect of the City’s rank-ordering policy is that 112 black applicants were denied approximately 34 years’ worth of wages and seniority that they would have received absent the policy’s disparate effects. This statistical showing is plainly sufficient to establish a prima facie case of disparate treatment. The Second Circuit has consistently recognized that statistical disparities exceeding two or three standard deviations can make out a prima facie case that an employer had a pattern or practice of intentional discrimination. See Waisome v. Port Auth. of N.Y. & N.J., 948 F.2d 1370, 1376 (2d Cir.1991) (“Social scientists consider a finding of two standard deviations significant, meaning there is about one chance in 20 that the explanation for a deviation could be random and the deviation must be accounted for by some factor other than chance. A finding of two or three standard deviations (one in 384 chance the result is random) is generally highly probative of discriminatory treatment.”) (citation omitted); Ottaviani v. State University of New York, 875 F.2d 365, 372 (2d Cir.1989) (“It is certainly true that a finding of two to three standard deviations can be highly probative of discriminatory treatment”); see also Hazelwood School Dist. v. United States, 433 U.S. 299, 309 n. 14, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) (“general rule” in employment discrimination cases with large samples is that “if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that [employees] were hired without regard to race would be suspect”). The calculated standard deviations in this case range from 6.5 to 33.9 units, well in excess of both the Second Circuit’s benchmark and the statistical showings that have established a prima facie case of pattern-or-practice disparate treatment in similar cases. See Wright v. Stern, 450 F.Supp.2d 335, 347-48 & 364 n. 18 (S.D.N.Y.2006) (disparities in “wage promotions” between minority and white employees ranging from 4.2 to 5.3 standard deviations “demonstrate a pattern or practice of discrimination”); NAACP v. Town of East Haven, 892 F.Supp. 46, 48, 50 (D.Conn.1995) remanded on other grounds by 70 F.3d 219 (2d Cir.1995) (statistical disparity of 4 to 6 standard deviations between number of blacks employed in town’s private sector and number of blacks employed by city sufficient to establish prima facie case of pattern-or-practice discrimination); Brown v. Nucor Corp., 576 F.3d 149, 154, 156 & n. 9 (4th Cir.2009) (statistical disparity in promotions between white and black employees of 2.54 standard deviations sufficient to establish prima facie case of pattern-or-practice discrimination). Moreover, as described above in Section I.B and below in Section V.B, the Intervenors have supplemented their statistical showing with extensive historical, anecdotal, and testimonial evidence that intentional discrimination was the City’s “standard operating procedure.” Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. Together, Vulcan Society, Guardians, and this court’s Disparate Impact Opinion demonstrate that the City’s use of discriminatory testing procedures to select uniformed service-members is a decades-old problem. The historical data amassed by the Intervenors shows that blacks have been consistently and drastically underrepresented in the FDNY relative to their representation in the City population; that blacks have been underrepresented in the FDNY relative to their representation in the fire departments of other large cities; and that blacks have been underrepresented in the FDNY relative to their representation in New York’s other uniformed-services agencies. The City does not dispute this evidence. As developed below in Section V.B, there is also convincing evidence that the City, its agencies, and relevant decision-makers have been aware that the FDNY’s hiring procedures discriminate against black applicants and have nonetheless refused to take steps to remedy this discrimination. Over several years, the EEPC repeatedly informed Commissioner Scoppetta and his predecessor that the preliminary results of Exam 7029 revealed a wide disparity between the pass rates of white and black test-takers, and that this disparity violated the 80% Rule. (Int. 56.1 ¶¶ 75-76, 80-93.) Neither Commissioner took corrective action, despite a municipal law requiring them to assess the discriminatory impact of the FDNY’s hiring practices and to explore viable alternatives. (Id. ¶¶ 47, 52, 81-93.) When the EEPC sent a report documenting the FDNY’s hiring disparities and compliance failures to May- or Bloomberg, he responded that he was satisfied with the FDNY’s efforts. (Id. ¶¶ 95-97, 100; Fraenkel MTD Decl. Ex. 3; Levy Decl. Ex. Z.) The Department of Citywide Administrative Services (“DCAS”), which is the City agency responsible for designing and administering the Exams, was also aware of the challenged policies’ discriminatory impact. DCAS analyzed test-takers’ scores on Exam 7029 and determined that setting the cutoff score at 84.705 would result in an 89.84% pass rate for whites, but only a 61.19% pass rate for blacks. (Int. 56.1 ¶ 103.) Although DCAS officials lobbied against the 84.705 cutoff score due to its discriminatory effect, the FDNY required DCAS to use it. (Fraenkel SJ Decl. Ex. 9 (“Wachter Dep.”), at 74-75, 165-66,177-78,181-82.) The Intervenors’ undisputed statistical and anecdotal evidence is powerful evidence that, when it came to the City’s firefighter hiring policies, intentional discrimination was the City’s “standard operating procedure.” Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. Accordingly, the court finds that, as a matter of law, the Intervenors have established a prima facie case that the City had a pattern or practice of disparate treatment. C. The City’s Defense 1. Sufficiency of the Intervenors’ Proof Because the Intervenors have satisfied their prima facie requirement, the City bears the burden of “demonstrating that the [Intervenors’] proof is either inaccurate or insignificant” by att