Gulino v. Board of Education Litigation
www.gulinolitigation.com

Frequently Asked Questions

Helpful Hint: Using the general subject of your question may provide the best search results. For example, enter the word "exam" in the search box to find information about the LAST.

The Plaintiffs in this case are African-American and Latino individuals employed as New York City school teachers on or after June 29, 1995 who failed the Liberal Arts and Sciences Test ("LAST"), and as a result either lost or were denied a permanent teaching position.

The remaining Defendant in this case is the New York City Department of Education ("DOE"). The DOE is the employer of teachers in public schools in New York City. Defendant New York State Education Department ("SED") was dismissed from the case in 2006.

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The LAST was an exam created and administered by SED to teacher candidates. The exam had eighty multiple choice questions, only sixty-four of which were scored, and an essay question intended to assess a candidate's reading comprehension, writing skills, and analytical ability. Test-takers were required to achieve a passing score on the LAST in order to receive state certification to teach in New York State public schools.

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In November 1996, Plaintiffs filed suit against the DOE in the United States District Court for the Southern District of New York (case number 1:96-cv-8414). At that time, the DOE had begun to fill permanent teaching positions based on results of the LAST. Plaintiffs alleged, among other claims, that the DOE's use of the LAST violated Title VII of the Civil Rights Act of 1964 because the test had an unlawful disparate impact on African-American and Latino test-takers and did not adequately determine who was or was not qualified for the job of a permanent teacher.

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On December 5, 2012, the Court found that the DOE failed to establish that the LAST that was administered prior to February 14, 2004 was related to the job of teaching as required by federal law. The Court also found that as a result, the DOE had violated Title VII by requiring plaintiffs to pass the LAST in order to receive a teaching license. On June 5, 2014, the Court made a similar finding regarding the LAST administered on and after February 14, 2004-the exam was not job related and the DOE's use of the exam in making employment decisions violated Title VII. The plaintiffs' complaint in this case is not based on a theory of intentional discrimination. Rather, the plaintiffs have alleged, and the Court found, that the DOE was liable for making employment decisions based on the state's exam under a "disparate impact" theory of discrimination.

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Title VII of the Civil Rights Act of 1964 prohibits not only intentional discrimination, but also employment practices that appear to be fair in form but are discriminatory in operation. A facially neutral employment practice, such as a written examination, that disproportionately excludes individuals from employment opportunities on the basis of their membership in a protected group, such as a particular race or national origin, and cannot be shown to be related to job performance, violates Title VII. As the Equal Employment Opportunity Commission has explained,

[An employer] can be found liable under Title VII if it uses a facially neutral practice that has the effect of disproportionately excluding members of a particular protected group. In such cases, which apply the disparate impact theory of discrimination, the individual alleging discrimination must prove . . . that the challenged practice has a substantial and significant adverse effect on a protected group. If the individual can make this demonstration, the employer will be liable for discrimination unless it can show that the practice in question is job-related and consistent with business necessity. It is the employer's burden to make this showing, and a failure to provide any justification for the practice will likely result in a finding of liability. Even if an employer can demonstrate that a practice is justified, moreover, the individual will be given an opportunity to prove that there are other available practices that would also serve the employer's purposes, but with less impact on the protected group.

http://www.eeoc.gov/eeoc/foia/letters/2000/titlevii_disparate.html

These facially neutral practices include the use of some written tests by employers, which have, intentionally or not, screened out people of a particular race, national origin or sex who are in fact qualified. Although using written tests to screen applicants may present the appearance of objective, merit-based selection, written tests often do not actually identify applicants who will be successful at performing a particular job. If appropriate analysis finds a test to be a poor assessment of an applicant's ability to do a job, then the test stands in the way of identifying the best qualified candidates. As a result, it is in everyone's interest to find a better measure.

In Gulino v. Board of Education, the Court found that African-American and Latino teachers failed the LAST at a significantly higher rate than white teachers. The Court then found that the DOE's use of the LAST did not predict which applicants would be best able to teach, which means that the use of the LAST was not job related or consistent with business necessity. As a result, the Court found the DOE liable for disparate impact discrimination under Title VII.

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Individuals who meet the class definition are eligible to seek lost wages, employment positions, and pension service credits lost or denied as a result of the DOE's discrimination. To determine whether you are eligible, you must submit a claim form. Claim forms were mailed to potential claimants on September 30, 2014 and January 20, 2017. If you did not receive a claim form and failed the LAST, you may complete the claim form process online or download a copy here. Please note that the deadline to complete the claim forms mailed on September 30, 2014 was December 31, 2014, and the deadline to complete claim forms mailed on January 17, 2017 was May 31, 2017. Even though the deadlines have passed, you may continue to submit claim forms, but you should be prepared to explain why you were unable to submit a claim form earlier. Please continue to check this website often for updates.

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No. Individual relief is available only to individuals who took and failed the LAST. Please note that in this case, the Court found that the Core Battery Exam did not violate Title VII.

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No. As long as you failed the LAST and otherwise meet the remaining components of the class definition, you may be eligible for individual relief.

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At the request of Plaintiffs' counsel, the New York State Education Department and the DOE provided Plaintiffs' counsel with a list of African-American and Latino individuals who were employed by the DOE and failed the LAST. This list contained potential claimants' names, addresses and dates for when they first failed the LAST.

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Individuals who meet the class definition are eligible to seek lost wages, employment positions and seniority benefits lost or denied as a result of the DOE's discrimination.

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All information submitted through this website will be maintained and utilized in accordance with applicable federal law, including the Privacy Act of 1974, 5 U.S.C.A. § 552a, et seq. To the extent any information submitted is protected by the Privacy Act, that information would not be used or disclosed except as permitted under the Privacy Act. Your social security number will not be filed in any public document.

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No, although the Consent Form (SSA-7050-F4) for the Social Security Earnings Information report, included with your claim form, states that there is a fee associated with receiving this report, the City of New York as the requester of the information will be responsible for making payment to the Social Security Administration. Claimants in this case will not be responsible for or required to make any payment for the gathering of information to be used in this matter. You must complete and return the Consent Form (SSA-7050-F4) to GCG in order to be eligible for monetary damages. Please click here, if you need another copy of this form.

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No. If you first failed the LAST after June 1995, you can start your employment history on the date you first failed the LAST.

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No, it is not too late, but you need to act now. In February 2021, the Court extended the deadline for all class members to demonstrate their satisfaction of the Court's requirements for provisional certification (for class members who first failed the LAST on or before February 13, 2004) or initial certification (for claimants who first failed the LAST on or after February 14, 2004) to August 26, 2022. In order to meet this deadline, all documents must be received by Plaintiffs’ counsel no later than June 30, 2022 so that the Court-appointed evaluator can complete his work before August 26, 2022. Therefore, if you have not yet submitted the necessary transcripts or other documents to Plaintiffs' counsel, you must do so now. If you already submitted documents to Plaintiffs' counsel, please reach out again now to Rachel Stevens (rstevens@stroock.com or 212-806-1313) to make sure Plaintiffs' counsel know you are still interested.

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No, you are not too late. If you are interested in becoming certified through this class action, please contact Plaintiffs' counsel at 212-806-1224. The injunction which allows class members who failed the LAST for the first time after February 13, 2004 to become certified expires on August 26, 2022. At that point, the Court will no longer allow class members who failed the LAST after February 13, 2004 to become certified pursuant to the pre-2014 requirements, minus the LAST.

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If you already communicated with Plaintiffs' counsel regarding certification, please follow up with them at 212-806-1224 about any additional coursework or exams you have completed. If you have forgotten what requirements you needed to fulfill or have questions about certification, please contact Plaintiffs' counsel immediately. The deadline to complete all remaining coursework and provide documents to Plaintiffs’ counsel is June 30, 2022 so please contact Plaintiffs' counsel as soon as possible.

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No, you can become certified through this case and collect monetary damages.

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Plaintiffs' counsel will work with you to make sure you complete all requirements for permanent certification before your provisional certification expires. If you received your provisional certificate through the case 5 years ago, please reach out to Plaintiffs' counsel rstevens@stroock.com or 212-806-1313) to get information about the status of your certification.

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We do not have a timeline as to when class members will receive judgments. Plaintiffs' counsel are diligently working to contact all class members; however, with approximately 4,700 class members, it may be sometime before you are contacted. If you have not discussed your claim with Plaintiffs' counsel, you can contact them at 212-806-1224 to get a status update. The sooner you send in the documents Plaintiffs' counsel need to evaluate your eligibility for damages, the sooner you can get a judgment.

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If you have a judgment already, then your name will appear periodically in Court filings, which may show up on one of these website that provide access to federal court documents. Plaintiffs' counsel should have sent you a copy of your judgment, which is the most important document for your records. There are other documents filed by the parties and/or the Court that may include your name but do not change the status of your judgment. If you have questions about anything you see on these websites, you can contact Plaintiffs' counsel. You should not pay money to either of these websites to see any of these documents.

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On Thursday, January 28, 2021, the United States Court of Appeals issued a summary order affirming the first 347 judgments entered by the district court (these are judgments that were filed and appealed prior to September 3, 2019). In affirming these judgments, the Court of Appeals rejected the arguments of the Board of Education and held that the methods by which the final judgments have been, and are being, calculated is proper. The Board of Education has indicated that it may seek a re-hearing from the Court of Appeals and/or further review from the United States Supreme Court. We will continue to update this site with news of the case as we learn more.

If your judgment was filed and appealed after September 3, 2019; the appeal of your judgment has been held pending the outcome of the appeal that was just decided. Our understanding is that the ruling of the Court of Appeals will, therefore, apply to your judgment as well. We will update this site to reflect the next steps regarding these judgments as they occur.

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You should make decisions now based on what is best for you now. This case will continue for many years and the final outcome is unknown, therefore, you should plan for retirement and make other important decisions, such as moving or changing jobs, without regard to this case. If you have specific questions about retirement, you can contact Plaintiffs' counsel.

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COVID-19 has caused some delays in some activities related to this case. All of the lawyers, the Special Master and Court personnel continue to work on the case from home and you can continue to contact Plaintiffs' counsel as usual, but there may be brief delays in their ability to respond. Email is the most efficient way to communicate with Plaintiffs' counsel.

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Plaintiffs' counsel is working closely with the lawyers for the BOE and the pension systems to ensure as little delay as possible, but the BOE is very busy managing remote learning and we do anticipate there may be delays in the pension systems' ability to update individual member accounts due to the pandemic.

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Yes. The BOE is very busy managing remote learning and has been unable to process seniority and salary adjustment for the last several months. Plaintiffs' counsel is working with the lawyers for the BOE to ensure that this process happens as soon as possible.

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We are aware that testing centers are closed in most states, including New York. If you need to pass the ATSW to get provisionally certified, or the CST to get permanently certified through the case, please attempt to register for the exam and send Plaintiffs' counsel (rstevens@stroock.com) an email explaining your efforts. Please check the testing center website(s) again as soon as stay-at-home orders are lifted so that you can register as soon as you are permitted to do so. Plaintiffs' counsel will seek extensions of time to get certified as needed for class members who have made diligent efforts to register for exams but were unable to do so due to the pandemic.

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No, certification through this case is different than certification through the State. Plaintiffs' counsel can request extensions of time for you to get certified if you have made diligent efforts to register for exams but were unable to do so due to the pandemic. Please contact Plaintiffs' counsel (rstevens@stroock.com) if you have questions about exam requirements.

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