The lawsuit had been argued and dismissed once before, but was remanded to the trial court in 2010 by a decision of the U.S. Court of Appeals for the Second Circuit. On September 9, Senior U.S. District Judge Charles S. Haight Jr. again found there was no evidence the city’s firefighter promotion exam “caused a disparate impact on the basis of race.”
The lawsuit in many ways appeared to be a response to the 2009 Supreme Court decision in Ricci v. DeStefano, in which a group of white New Haven firefighters filed suit after the city invalidated the 2003 promotions test because minority candidates did not do well. The white firefighters claimed reverse discrimination, and in a decision that drew national attention, the high court backed their claim.
The latest lawsuit was brought by firefighter Michael Briscoe, who claimed he was unfairly passed over for a promotion in 2003. Briscoe stated in his lawsuit that he was a top scorer on the oral portion of the exam, but scored 59 on the written portion, which was 60 percent of the higest possible score.
The final scores were weighted 60 percent for the oral section and 40 percent for the written section. Briscoe’s final overall score placed him 24th out of the 77 firefighters who took the exam.
Briscoe argued the test was discriminatory. When he filed his lawsuit, he maintained that he would have been promoted to lieutenant if the exam followed the industry norm and calculated the results with 30 percent based on answers to the written questions and 70 percent based on oral answers.
He argued the Ricci decision, in which the Supreme Court ordered New Haven to enforce its 2003 exam results leading to the promotion of 17 white firefighters, was irrelevant to his case.
The Supreme Court had in Ricci said that local governments can nullify the outcomes of promotions tests only if they can prove there is “strong basis in evidence” that the tests were discriminatory. Briscoe did not seek to have the test results nullified, but wanted the written portion of the test to be weighted less heavily to reduce its overall importance.
Last year, the U.S. Supreme Court declined to take up the Briscoe case, leading to oral arguments before Haight. In his order, Haight said he didn’t think Briscoe’s argument made sense.
“I find myself unable to discern in his pleadings or the surrounding circumstances any basis for concluding that the City used an employment practice which caused a disparate impact on the basis of race. It would be one thing if the statistics showed that the City’s use of the 60/40 weighting resulted in no African-Americas being promoted, whereas reducing or discarding the written exam component would result in three African-Americans being promoted.”
Haight agreed that the scoring system might have hurt Brisco as an individual. But its groups, not individuals, who are protected under Title VII of the federal Civil Rights Act, the law Briscoe complained had been violated.
Briscoe’s lawyer, David Rosen, has said previously that the lawsuit was meant to show that “tests which arbitrarily exclude any group, be it based on sex, religion, national origin, or other categories, is illegal.” Rosen has 30 days to appeal the recent decision. In an email message, Rosen said the matter is not over.
Karen Lee Torre, who was the lead attorney in the Ricci case and joined the City of New Haven as an intervening party in the Briscoe lawsuit, called the case “some of the craziest litigation I’ve ever seen.”
She said Judge Haight was patient in allowing Rosen to submit written pleadings after the oral arguments had been heard. “This was a very patient judge,” Torre said.
Victor Bolden, corporation counsel for the City of New Haven, did not return a call seeking comment. Torre said she is confident that any appeal that might be filed by Briscoe will be dismissed.
“After four years of contentious litigation and three amended complaints from Briscoe along the way, obviously the city and many of its firefighters hope this time, the litigation is finally over for good,” Torre said. “This decision will hopefully go a long way to lifting the freeze on the New Haven fire department’s ability to move on and start filling vacancies.”
“Not so fast,” Rosen said in the email. “The district judge is going to review a proposed amended complaint, and if he dismisses the complaint the court of appeals will weigh in. Stay tuned. Meanwhile, the City of New Haven should give a lieutenant test soon and should have given one years ago. Just please make it fair.”