New Haven Independent

Ricci’s Back In Court

by Thomas MacMillan | November 11, 2009 7:31 AM | Permalink | Comments (6)

Four months after the U.S. Supreme Court ruled in favor of 20 New Haven firefighters, the controversial case has landed back in a local courthouse, where a jury trial looms.

The case is Ricci v. DeStefano, the reverse discrimination suit filed by city firefighters that made national waves this year. The U.S. Supreme Court ruled in June in favor of Frank Ricci and 19 fellow firefighters, who claimed their rights were violated when the city threw out results of 2003 promotion exams because African-American firefighters performed poorly. (Ricci is pictured at right in photo, with attorney Karen Torre at center, celebrating the “SCOTUS,” or Supreme Court of the United States, ruling.)

The case has now returned to New Haven U.S. District Court Judge Janet Bond Arterton, who first heard the case and ruled for the city.

Last Thursday, lawyers for the city and for the firefighters met in Arterton’s chambers in the federal courthouse next to City Hall to set out a timetable for the proceedings. Arterton laid out several deadlines for both sides.

The first filings are due this Friday on the issue central to the case: Who should be promoted?

No one has been promoted in the six years since the city held exams for captain and lieutenant on the city firefighting force. Fourteen of the New Haven 20 would have been promoted if the city had acted on the test results as was originally planned. Many saw the SCOTUS decision as basically ordering the city to promote off of that list.

A jury trial will determine a stickier issue in the case: How much money is due the firefighters who were denied promotion.

“There’s definitely going to be a trial,” said Karen Torre, attorney for the New Haven 20. Her original suit in 2004 called for compensatory and punitive damages, both of which are determined by jurors.

A jury will decide the amount of damages, she said.

As she follows through with the Supreme Court’s decision, Judge Arterton will decide the type of damages awarded in the suit. She will also rule on who should be promoted and perhaps also when and how such promotions should take place.

Promotions

Arterton first set a Friday deadline for both sides to draft a proposed order regarding promotions.

The deadline was laid out in a scheduling order issued by the judge following last week’s conference in her chambers. According to the order, attorneys must recommend who among the 20 plaintiffs should be promoted and how or when they should be promoted.

If the two parties are not able to agree on this, they are to draft separate orders for the judge to consider, according to the order.

The city’s position after the Supreme Court ruling is that the promotions should proceed according to the original results, said New Haven Corporation Counsel Victor Bolden (pictured).

The 2003 exams would have been used only for the first two years following the test, said Bolden during a phone interview this week. Fourteen of the New Haven 20 would have been promoted during that time.

In a follow-up email, Bolden said the city is committed to promoting those successful test-takers “as soon as practicable.”

“Since the Supreme Court’s decision, the City has been and remains committed to ensuring that the Ricci plaintiffs, whose performance on the 2003 exams for either the position of Lieutenant or Captain would have warranted promoting them, be promoted as soon as practicable. We plan to submit an Order to the Court that would require this to happen in the near future,” Bolden wrote.

It’s possible that the city’s attorneys and the attorneys for the New Haven 20 will be able to agree on promotions, said Bolden. “We’re obviously talking,” he said. He declined to predict success.

The firefighters’ lawyer, attorney Torre, declined to comment on that topic.

“It’s not my habit to try cases in the media,” she said.

To Be Resolved

Arterton also ordered the parties to prepare briefs concerning the nature of damages to which members of the New Haven 20 are entitled.

The plaintiffs must file by Dec. 1. The city will have three weeks to respond.

The briefs will present a case for “what issues should be sent to a jury for determination,” Torre said.

The briefs will also address the question of whether any claims of legal violations remain to be settled. In their complaint, the New Haven 20 claimed that the city had violated a number of different laws, including the First Amendment and the 14th Amendment. The Supreme Court took up only one of those claims, the one pertaining to Title VII of the Civil Rights Act of 1964. The question is whether the justices’ decision on that one claim has decided the remaining claims.

“With respect to whether there are any other issues in the case and what damages may be appropriate under Title VII for any of the Ricci plaintiffs who should be promoted, these matters remain to be resolved,” Bolden wrote in an email.

Past stories on fire department promotions and the Ricci case:

• 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

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Comments

Posted by: JR | November 11, 2009 12:04 PM

And meanwhile, while this handing over of money damages and promotions plays out in Arterton's courtroom, New Haven separately has to defend itself against a disparate impact lawsuit by the black firefighter who scored highest on the oral exam (but because the union demanded that the written exam get more weight, he will not be promoted). This separate disparate impact lawsuit was what New Haven was trying to avoid when it took the actions that have landed it in hot water with Karen Torre and five right-wing Supreme Court justices.

New Haven is truly, as Justice Souter said at the time, "damned-if-you-do, damned-if-you-don�t." The rule of Ricci will tie up cities like New Haven in massive litigation for decades to come.

As a lawyer, I can't complain -- this kind of ridiculousness is great for business. The Ricci case is a litigation bonanza.

Posted by: moreorless | November 11, 2009 1:55 PM

JR--it was a mutual agreement between the Union and the City of New Haven--don't spin--get your facts straight. Briscoe was the only Black candidate who scored as well as he did on the oral--he topped it by a little over 2 points. Even if the weighting was 50/50 Briscoe would not have moved much further up from his 23 spot--he scored a 59 on the written, which pretty much says a great deal about his general knowledge of how fire control, building construction, Life Safety, Department Rules & Regulations, and a multitude of other fire and rescue tactic--but I guess those do not matter--right.

The way to stop these frivolous lawsuits is for Activist Judges to stop accepting Prima-Facia cases from fools like Briscoe and others that have no merit; the US legal system should also institute a "you lose, you pay 'all' fees associated with both sides clause." That would easily decrease the amount of these frivolous lawsuits. Once individuals realize that they need legitimate evidence to even enter a suit, then the "damned if you do, damned if you don't" cases will go right out the window too. As long as liberal judges allow even a slight entertainment of these types of ridiculous arguments into the court system, we will continue to be prisoner to their waste of the courts time.
So man up and take responsibility for your own actions, and don't blame the color of your skin, or lies like "orals are more representative of a firefighters job" or "written tests measure nothing." The entire test was job-related and a business necessity as decided by the SCOTUS--so grow up and let it go--you lost.

Posted by: USJustice | November 11, 2009 2:19 PM

So you mean to tell me the US Supreme Court ruled in favor of the firefighters 4 MONTHS ago and it is just getting back to the new haven court now. What was the delay? It's ridiculous enough these men had to wait 5 YEARS to get judgement. 5 years to wait to get to the highest court in the land. 4 more months after they rule in your favor to BEGIN negotiations. That is insane. These mens lives and careers were held hostage by the city and a liberal court system. That is sad. Promote those deserving promotions immediatly. When will this city ever do the right thing???? It scares me to imagine how much we, as taxpayers, will end up shelling out in this mess. The sad part is those guys deserve every dime they get after what this administration put them through. Re-elected King John again...good job new haven.

Posted by: LtMike | November 12, 2009 11:49 AM

Esentially Briscoe's case is just a waste and will not overshadow the bombshell jury case taking place soon. I am sure there are some other misguided, not scoring well, change the rules after the fact, try to make a buck, 'do I really have to study', whining folk who will try to sue. Good luck 20, and all that cash you recieve, God Bless You! We the tax payers of the city should SUE all those responsible for allowing it get to this point! Maybe as taxpayers we can sue Kimber, King John, The Firebirds, and everyone else that was involved in trying to hold up promotions and costing the city... dare we say millions?!? Man I can't wait for the next exam!

Posted by: QQ | November 12, 2009 3:51 PM

What happens to the fire fighters that did not sue but passed???

Posted by: nascar29 | November 12, 2009 6:31 PM

Moreorless hit it right on, if people would have to put up or shut up, I'm sure most fo them would choose to shut up. As for monetary damages owed to the 20, while they deserve everything they COULD get, they would be better served in the public eye to be happy with the city paying all legal expenses and back pay for those promoted. If a huge settlement were to lead to layoffs, in any department in the city, because of a huge multi-million dollar punative settlement, what has been gained? Just a fellow firefighter giving his thoughts.

Ricci’s Back In Court

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