New Haven Independent

On Monday, a group of seven black firefighters filed a Motion to Intervene in Ricci v. DeStefano, the controversial case stemming from a 2003 firefighter promotions exams. If successful, the motion would allow the seven to become plaintiffs in the case.

Attached to the motion is a complaint against the city by the seven firefighters. Their complaint seeks to prevent the city from going forward with any promotions based on the 2003 exams. The lawsuit would go forward if the motion to intervene is successful.

Read the motion and the lawsuit here.

The filing comes on the heels of a similar complaint by African-American firefighter Michael Briscoe. The new complaint differs from Briscoe’s in that Briscoe does not seek to prevent the city from making promotions based on the 2003 exams.

In 2004, Frank Ricci and 19 fellow firefighters sued the city after it threw out the results of the 2003 exams. The city argued that verification of the results would have opened it to a discrimination lawsuit, since no African-American firefighters would have passed. The group of mostly white firefighters — dubbed the “New Haven 20” — argued the city’s actions amounted to “reverse discrimination.”

In June, the U.S. Supreme Court sided with the New Haven 20, and sent the case back to New Haven’s U.S. District Court, where a jury trial to determine damages looms. The question of who is to be promoted also remains unanswered.

Since the case landed back in New Haven, black firefighters have taken steps to add their perspective before any promotions are made. (Click on the play arrow to watch the arguments of national civil rights leaders at a March rally about the case.)

In November, eight African-American firefighters filed complaints with the Equal Employment Opportunities Commission. They argued that their rights were violated by an unfair promotional exams that had an adverse impact on blacks and Latinos. (Read one of those complaints here.)

On Monday, seven of those eight firefighters submitted a motion to intervene as plaintiffs in the Ricci case. The motion, which is prepared by Ohio law firm Thompson and Bishop, argues that intervention is a necessary step to protect the rights of the seven firefighters.

The lead plaintiff on the motion is Gary Tinney (pictured at the top of the story), head of the black firefighters’ organization, the Firebirds.

The motion presents the following argument:

The city acted “rashly and hastily” when it threw out the test results, since it never fulfilled its legal obligation to prove that the test was valid or invalid. “Validity is an objective thing; it is not mindful of social issues, or racial divides,” the motion states.

Instead of arguing about the “objective” matter of validity, the city presented race and speculative liability as the bases of its argument. “The City has used race as a strawman in all sorts of ways to attempt to benefit itself, to the detriment of others,” the motion states. “‘Fear of liability’ is the pusillanimous way of ducking one’s responsibility as a civil servant.”

Since the question of validity was never addressed, the rights of the seven black firefighters have not been represented in the case, the motion states. The seven should now be allowed to intervene as plaintiffs, the motion concludes.

As part of their motion, Tinney and the six other firefighters seek to bring a lawsuit against the city. Their complaint argues that the 2003 promotion exams are invalid and that their results would have had an adverse impact on African-Americans and Latinos.

The lawsuit states: “The actions by the City have resulted in irrevocable delays in the promotional process and cycles over the years of the litigation between the City and the original Plaintiffs, as well as unlawful denials of promotions to Plaintiffs and lost opportunity for promotions to more senior ranks.”

The suit seeks to either prevent the city from making any promotions based on the 2003 exams or to promote the seven black firefighters.

City spokeswoman Jessica Mayorga issued the following statement following the filing of the motion: “The city’s response is rather simple: it is our intention to move forward and not focus on the past. As our proposal stated last week, we are interested in making promotions as appropriate and strengthening the future of the New Haven Fire Department.”

“The motion should not affect anything,” wrote Karen Lee Torre, attorney for the New Haven 20, in an email. “We would be surprised, to say the least, if the district court were to allow these intervention attempts to delay the promotions of my clients given the clear directions of the U.S. Supreme Court.”

The complaint is meritless, Torre argued. She wrote, “These firefighters who are attempting to intervene have no right to a promotion; they did not qualify for promotion in 2004 under the civil service rules and laws. Thus, they have no ‘right’ that will be impaired by the promotion of the plaintiffs.”

Torre further argued that the motion amounts to sour grapes on the part of Thompson and Bishop, the Ohio firm that drafted it. “Their lawyers [Thompson and Bishop] were active allies of the city in defending against us before the Supreme Court. They filed an amicus brief supporting the City,” Torre wrote. “Indeed, when [city Corporation Counsel] Victor Bolden addressed the media in front of the Supreme Court after the oral argument on April 22, 2009, he was flanked by none other than Attorneys Bishop and Thompson. So, here you have an obviously odorous development where the city’s ‘amici’ just happen to be the ones now suing the city in an effort to stop the promotions they and the city unsuccessfully tried to prevent before the Supreme Court.”

Thompson and Bishop appear to have not understood the Supreme Court opinion, Torre went on. “In a wise exercise of forethought, the Supreme Court took the extra step of stating that ‘it should be clear’ that in light of its decision, the city may not be held liable for disparate impact should a subsequent suit be filed. It is unfortunate that these intervenors’ lawyers cannot abide by that admonishment or are so blinded by upset over the outcome that they cannot read.”

“Their complaint boils down to a whine that the dissent should have prevailed,” Torre concluded. “Filing a motion and a lawsuit which essentially invites a district court to indulge their defiant disagreement with the Supreme Court’s ruling is, in my opinon, a serious matter.”

Past stories on fire department promotions and the Ricci case:

• Promotions Pitched In Ricci Case
• Ricci’s Back In Court
• After Ricci Ruling, Black Firefighter Sues City
• Ricci Takes The Stand
• In D.C., Two Latino Views On Sotomayor
• Dems Swing Back On Ricci
• ConnectiCOSH Kibosh
• Sotomayor: I Didn’t “Hide” Ricci Case
• Is Ricci Being Smeared?
• Sotomayor Speaks On Ricci
• Ricci Takes Center Stage
• Watley: I’d Have Promoted Ricci
• Firebirds, NAACP: Ricci Won’t Stop Us
• “If You Work Hard You Can Succeed In America”
• Was He The Culprit?
• Supreme Court Overturns City On Ricci
• On Page 25, A Hint
• Minority Firefighters Vow Post-Ricci Unity
• Ricci Ruling Won’t End Quest
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• Justices Zero In On Race-Based Distinctions
• Rights Groups Back Black Firefighters
• The Supreme Stakes: Title VII’s Future
• Dobbs v. Bolden
• Latino Group Backs White Firefighters
• Black Firefighters: Ricci Case Poses Grave Threat
• NAACP Backs City In Firefighter Case
• Paging Justice Kennedy
• Fire Inspectors Promoted
• Fire Inspector List Approved
• U.S. Supreme Court To Hear Firefighters’ Case
• Fire Promotions Examined in Supreme Court