Larry's Legal Lessons: Supreme Court Agrees to Hear New Haven Reverse Discrimination Case

The Supreme Court has the chance to make a landmark decision regarding the the promotion of fire officers, based on race.

Legal Lessons Learned: On Jan. 9, 2009, the U.S. Supreme Court agreed to hear the appeal of 17 Caucasian and one Hispanic firefighters seeking promotions in the New Haven, CT, Fire Department; Frank Ricci (firefighter(, et al., Petitioners v. John DeStefano (Mayor of New Haven), et al. The city's Civil Service Commission threw out the results of the 2003 promotion tests for promotion because no African-American and possibly two Hispanic candidates would have been promoted to the seven captain or eight lieutenant openings The U.S. Supreme Court has an opportunity to make a "landmark decision."

Test Results
In November and December, 2003 the fire department administered its promotion exams for captain and lieutenant. The city had reportedly paid $100,000 to an Illinois company, IO Solutions, Inc., a seven-year-old company that specializes in entry-level and promotion exams for fire and police departments.

Unfortunately, the 2003 test results were so disappointing that the mayor asked the city's Civil Service Commission to not certify the results. By a tie vote of 2 to 2, the Commission, after several days of hearings, refused to certify the results.

Captain's Test: The captain's test had 41 applicants, 25 Caucasians, eight African-Americans, and eight Hispanics. Per the Collective Bargaining Agreement with the union, the written exam counted for 60 percent of the candidate's final score, and the oral exam was 40 percent. The exam was passed with a total score of at least 70 points by 22, including only three African-Americans. The top 10 scores were by eight Caucasians, and two Hispanics. The Hispanics ranked seven, eight and 13. The African-American candidates ranked 16, 19 and 22.

Therefore, of the seven open captain positions ("rule of three" required one of top three on list be promoted each time), no African-Americans and only two Hispanics would likely be promoted.

Lieutenant's Test
The lieutenant's test had 77 applicants, including 43 Caucasians, 15 Hispanics and 19 African-Americans. Once again, per the Collective Bargaining Agreement with the union, the written exam counted for 60 percent of the candidate's final score and the oral exam was 40 percent. Forty-four applicants passed with a total score of at least 70 points. The top 13 scorers were Caucasian. The Hispanic applicants ranked 27, 28 and 31 and African-Americans ranked 14, 15, 16, 20, 22 and 24.

Therefore, of the eight vacant lieutenant positions, none of the African-American and Hispanic candidates would likely be promoted.

The promotions have not occurred and the officer positions have been temporarily occupied by acting captains and lieutenants.

In June 2004, Firefighter Frank Ricci and others retained legal counsel, who filed an appeal to the state's Commission on Human Rights and Opportunities (CHRO). The commission ruled for the city.

On Feb. 9, 2005, a lawsuit was filed in U.S. District Court in New Haven, and assigned to District Judge Janet Bond Arterton. On Sept. 28, 2006, the judge dismissed the lawsuit, granting summary judgment to the city. The firefighters appealed to the U.S. Court of Appeals for the Second Circuit in New York City. After hearing oral arguments by legal counsel for both sides, a three-judge panel upheld the dismissal of the lawsuit on Feb. 15, 2008. The firefighters sought a rehearing "en banc" by all the judges on the Court of Appeal, which was denied on June 12, 2008 (six of the 13 judges dissented; significantly they urged the U.S. Supreme Court to take this case "of first impression").

U.S. Court of Appeals - Dissent
On June 12, 2008, six circuit judges, dissenting from refusal of the seven other active judges to hear the appeal "en banc" (entire court), urged the Supreme Court to review the case.

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