New Haven Independent

Meanwhile, lawyers for the city and for the New Haven 20 filed papers arguing that the group should not be allowed to intervene in the case.

The legal sparring is laid out in three court filings submitted on Monday to U.S. District Court Judge Janet Bond Arterton. They are the latest salvos in the ongoing case of Ricci v. DeStefano.

The filings come just days before a ceremony in which members of the New Haven 20 and 10 other firefighters — including three African-Americans and two Latinos — are to receive their new badges. The department promoted them last week.

Karen Torre, attorney for the New Haven 20, said that the motion to prevent promotions comes too late. The ceremony on Thursday is simply an event to recognize promotions that were made official last week, she said.

The Ricci case pits a group of mostly white firefighters against the city of New Haven. The group, called the New Haven 20, argued that the city was wrong to throw out the results of a 2003 promotions exam after African-Americans scored poorly on the test. The case went all the way to the Supreme Court, which decided for the New Haven 20 in June and sent the matter back to New Haven.

That’s when the group of eight black firefighters sought to become a party to the case. The group is led by Gary Tinney (pictured at the top of the story), the head of the local branch — the Firebirds — of the International Association of Black Professional Firefighters (IABPFF).

Tinney and his colleagues filed their petition to join the case as plaintiffs on Nov. 16. They argued that the 2003 exams were invalid, had a disparate impact on minorities, and that promotions based on the exam should not go forward. In two separate filings, lawyers for the city and for the New Haven 20 responded to Tinney’s group’s motion on Monday.

Read the city’s response here. Read the New Haven 20 response here.

The two documents lay out similar arguments. City and New Haven 20 lawyers argue that the group of eight black firefighters — the “Tinney Intervenors” — should have sought to intervene sooner; their motion is not timely. Further, intervention would infringe on the rights of the original parties, they argue.

“The motion is untimely because the movants have been aware of their interest in Ricci since 2004, but failed to intervene until the eleventh hour,” the city’s filing states. Moreover, although the Tinney Intervenors argue that the city’s scoring methodology is flawed, it has stood for 20 years without objection, the city’s motion states. “[T]here is no reason why the movants could not have intervened sooner.”

Torre makes similar arguments in her response to the Tinney Intervenors’ petition. But she begins by singling out Gary Tinney for personal attack. She accuses him of using his “nepotistic and political connections” to find out that he had failed the captain’s exam. “Tinney proceeded to use his relationships, his race and racial rhetoric to escape the consequences of his exam performance,” the filing states.

He began by falsely accusing white firefighters of cheating, then he lobbied the civil service board to toss out the test results, Torre writes. It was Tinney’s efforts, and others’, that led to the city scrapping the test, and Tinney’s motion is only the latest manifestation of his unhappiness with his test score, Torre argues.

Judge Arterton has not yet ruled on Tinney and his colleagues’ motion to intervene.

Stay, Stay Again

In addition to arguing that the Tinney Intervenors’ motion is untimely and prejudicial, the city’s filing also argues that any attempt to block promotions is futile. “[I]t is now impossible for the movants to challenge the tests before promotions are made, because the promotions have already been made,” the document states.

On Nov. 24, after the Tinney Intervenors filed their motion to intervene, Judge Arterton ordered the city to promote the 14 members of the New Haven 20 who would have scored highly enough to have been promoted in the first two years after the tests, had they been certified. The city complied with that order and also promoted 10 other non-plaintiff firefighters who would have been promoted in the first two years. A promotions ceremony is planned for Thursday.

On Monday, Tinney and his colleagues tried again. They filed a motion to stay the second 10 promotions until after Judge Arterton has ruled on their Nov. 16 motion to intervene.

The new motion is nearly identical to a motion to stay the first 14 promotions, which the Tinney Intervenors filed on Nov. 30. Judge Arterton denied that motion just three days later, on Dec 2.

Read the first motion here. Read the second here.

The group’s motions to stay offer a reason for why they waited so long to try to intervene. They argue that there were no grounds to intervene until the test results were actually certified, which happened last Monday.

The group’s motions to stay again argue that the 2003 tests were invalid. They cite “Friend of the Court” briefs filed to the Supreme Court by industrial psychologists.

The latest document also argues that the test is patently flawed based on the race of the high scorers. “There is not a single black firefighter among the first 14 promotions; there are only two, maybe three in the next proposed group of promotions,” the motion states. “In the testing context, this indicates that the test itself may be flawed.”

Responses from the city and the New Haven 20 to the new motion to stay are due by Dec. 28, more than two weeks after the promotions ceremony scheduled for Thursday.

Briscoe Moves To Intervene, Too

The Tinney Intervenors’ motions do not state what testing or scoring circumstances would have had to exist in order for them to have scored highly enough to be promoted. That’s not the case for Michael Briscoe, the black firefighter who sued the city on Oct. 15. As the highest scorer on the oral component of the Lieutenant’s exam, he argues that he would have been promoted if the city scored the exam the way other cities do, with a greater emphasis on the oral portion rather than on the written portion.

Like the Tinney Intervenors, Briscoe filed his own own motion to intervene in the Ricci case, on Dec. 1. (Read it here.) Responses to that motion are due from the city and from the New Haven 20 by Dec. 22.

Past stories on fire department promotions and the Ricci case:

• 10 More Firefighters Promoted
• Judge Blocks Black Firefighters’ Move
• Board Promotes 14 Firefighters
• Judge Orders Firefighter Promotions
• Black Firefighters Seek To Halt Promotions
• 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