Twelve white Buffalo firefighters will get an average of $230,430 each in back pay, pension benefits and damages -- a total of almost $2.77 million -- for emotional distress because the City of Buffalo illegally passed them over for promotions, a state judge has ruled.
The 12 men sued the city in 2007, contending that the city illegally allowed two promotional lists to expire because minority firefighters had fared poorly on civil service exams.
The case was affected by a 2009 U.S. Supreme Court decision that said city officials cannot void the results of civil service exams simply because they are afraid of being sued.
The ruling on damages came 15 months after State Supreme Court Justice John A. Michalek ruled that the city illegally failed to promote based on its 2005 and 2006 tests for racial reasons.
A trial on damages was held late last year, and Michalek ruled Tuesday on the compensation for the 12 firefighters who lost promotions.
"This never should have happened. These are solid, hardworking firefighters. The city should have given them the promotions they earned and not put them through five years of litigation," said attorney Andrew P. Fleming, who represented the firefighters with co-counsel Christen Archer Pierrot.
The administrations of Mayor Byron W. Brown and his predecessor, Anthony M. Masiello, are both to blame for what happened, Fleming said.
"The original decision not to promote these men was made at the tail end of the Masiello administration, and it carried on into the Brown administration," Fleming said. "Mayor Brown had the opportunity to make it right but chose to continue on with this unnecessary litigation."
Brown took office in January 2006.
Fleming added that former Fire Commissioner Michael S. Lombardo testified in a deposition in the damages trial that he urged the Mayor's Office to promote the men in early 2006 but that his suggestion was vetoed.
The mayor's spokesman, Michael J. DeGeorge, said city attorneys are examining the judge's decision, and he declined to comment further.
Lawyers hired by the city took the position in the trial that none of the firefighters was entitled to any damages. One of those lawyers, Adam W. Perry, said city officials disagree with Michalek's rulings on both liability and damages. He said the firefighters "were originally seeking just under $8 million in damages."
"The city, at all times, acted under its rights under federal law," Perry said. "The city has maintained its position that the liability determination made by Justice Michalek was erroneous and should be reversed on appeal."
Fleming also told The Buffalo News on Wednesday that he has seen city records showing that Perry's law firm, Hodgson Russ, has been paid at least $700,000 to litigate the case. Perry, a partner in the firm, declined to comment, saying he does not discuss fees paid by clients.
Michalek ruled that 12 firefighters should receive damages from the city. They are Mark A. Abad, Brad J. Arnone, David T. Denz, Timothy R. Cassel, Joseph P. Fahey, Timothy J. Hazelet, Peter F. Kertzie, Peter J. Lotocki, Eugene J. Margerum, Matthew S. Osinski, Thomas J. Reddington and Scott T. Skinner.
Margerum was awarded $30,000 for "emotional damages," and Fahey was awarded $25,000. Each of the other firefighters got $20,000 for that.
Depending on his years of service and individual situation, each firefighter also was awarded between $49,859 and $528,706 in "general damages."
No money was awarded to a 13th plaintiff, Anthony J. Hynes, who has retired from the Fire Department. "[There] was simply never a vacancy available for him," Michalek wrote.
According to Fleming, being passed over for promotions that they had earned was a "nightmare" that caused years of anguish for many of his clients.
In addition to Hynes, Fleming said, about three other of the claimants have retired since the lawsuit was filed in 2007.
Fleming said trial testimony also showed that the situation caused morale problems in a large segment of the Fire Department.
Fahey said the case pointed to "the true nature of reverse discrimination: When it happens to blacks, everybody is correctly upset about it, but when it happens to whites, nobody cares."
In Michalek's ruling, he said some of the firefighters suffered from emotional distress, depression and self-medication issues. The judge wrote that some of the firefighters lost their enthusiasm for their jobs and became "bitter and cynical" because they felt they had legitimately earned promotions but were illegally passed over.
Copyright 2012 - The Buffalo News, N.Y.
McClatchy-Tribune News Service
