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Commissioner Changed Testimony 50 Times

by Melissa Bailey | Feb 27, 2014 1:04 pm

(7) Comments | Commenting has been closed | E-mail the Author

Posted to: Legal Writes

Melissa Bailey File Photo A civil service commissioner who felt “uncomfortable” that no Latino cops passed a promotions test testified under deposition that she voted to toss out a promotions list—then changed her testimony 50 times, according to a new legal decision that gave momentum to black cops’ discrimination lawsuit.

The suit was filed 2011 in state Superior Court by Bruce Bonner and nine fellow African-American city cops.

The officers—who dubbed themselves the “New Haven 10”—passed a sergeants exam in April 2009 and never got promoted. They claim the city discriminated against them when the Civil Service Commission certified the eligibility list for only one year instead of two because no Latinos passed the exam. The case has since been working its way through court, against the backdrop of racial tension in the department.

The city tried to get the court to toss out the case before a trial, arguing that the facts are irrefutable that the city did not intentionally discriminate against the plaintiffs.

Judge Matthew Frechette disagreed.

In a Feb. 21 decision, Frechette denied the city’s request for summary judgment, a routine request asking the judge to throw out the case.

(Click here to read the decision.)

Why? Frechette argued there is “genuine issue of material fact” to lead jurors to potentially conclude that the city discriminated against black cops—in large part because of the “inconsistent testimony” of one civil service commissioner.

That commissioner, Anne Massaro, provoked concern from the judge when she made 50 corrections to a transcript of a deposition she gave the court—without giving any explanation why, according to the decision.

The judge’s decision means the cops will get to continue making their case in court.

“The African-American police officers who have clearly demonstrated their suitability for promotion are going to be given a chance to get justice,” said John R. Williams, who’s representing the New Haven 10. “It’s obvious from reading the decision that the judge is troubled by the fact that a sworn city official saw fit to change her testimony not once or twice but 50 times in a case ... It clearly suggests impropriety.”

Reached Wednesday, Massaro declined comment for this story. Nicole C. Chomiak of the law firm of Nuzzo & Roberts, who is representing the city in this case, said Massaro “was extremely nervous about being deposed” and incorrectly recollected the facts of a meeting that took place three years earlier, and so subsequently corrected the record. She said that despite Massaro’s confusion, the facts of the case are clear. The city will ask the judge to reconsider his decision, Chomiak said in a written statement Thursday.

Here’s what happened, according to the judge’s decision:

Massaro was one of the volunteer civil service commissioners who reviewed the results of a promotions exam that cops took in April 2009. The commission voted on July 14, 2009, to approve the promotions list—but for only one year, not the usual two.

“Regarding the Hispanics, like, I feel uncomfortable that none of them passed the test,” Massaro said during the July 14 board meeting. That’s how she’s quoted in the minutes of the meeting, according to Judge Frechette.

Before raising her concern, she asked to go off the record. “Can we go into executive session? I have a question,” Massaro said in the minutes. “The question I have, I don’t think that the public should hear what (inaudible) say,” she is quoted as saying.

Massaro changed her story as to what happened one year later, in 2010, when the board opted to let the promotions list expire instead of extending it for a second year.

Massaro was deposed in the New Haven 10 lawsuit on Aug. 8, 2013. During her deposition in this case, she “testified that the commission voted affirmatively not to extend the eligibility list.”

Then she was given the chance to review her testimony and make any corrections to the transcript.

Massaro made 50 corrections to the transcript. One correction concerned the expiration of the list after one year: Commissioners had the option to extend it for a second year and took no action.

“Tell me about the process of expiring the list. Did you take a vote?” the plaintiffs’ attorney asked Massaro, according to the judge.

“Yes,” Massaro responded.

When she reviewed the transcript, she later changed her answer to “no.”

The “errata sheet,” the list of changes Massaro made to the transcript, is “full of similar instances of Massaro correcting affirmative responses to questions regarding a vote to expire the eligibility list,” Frechette wrote.

Massaro failed to give any explanation as to why she changed her answers to any of the questions, even though she is required to by state law, according to Judge Frechette.

Frechette said it is not credible that the 50 changes could be due to transcription errors. Massaro’s initial deposition and her corrections are both admissible as evidence in court, Frechette wrote.

Massaro’s “inconsistent testimony is far less than a ‘smoking gun’ indicating Massaro actually discriminated against the plaintiffs,” Frechette wrote.

But employers rarely leave a “smoking gun” in discrimination cases. Discrimination cases are more often built of “pieces of circumstantial evidence which cumulatively undercut the credibility of various explanations offered by the employer,” wrote Frechette, quoting the case Hollander v. American Cyanamid Co., 1990.

Massaro’s inconsistent testimony “could create an inference of discrimination in the mind of a reasonable juror,” Frechette wrote.

“A juror could view Massaro’s changes in the errata sheet,” her request to go into executive session to discuss a question she didn’t “think the public should hear,” and her comments on Latino candidates, as “circumstantial evidence” that undercuts the credibility of her explanations, Frechette wrote.

Thus, Frechette ruled it would be inappropriate to toss out the case, because there is a “genuine issue of material fact” concerning whether the city discriminated against the cops.

In her statement, Chomiak, the city’s lawyer, said the judge’s ruling was based on “a single question of fact: the testimony of Ms. Massaro.”

“Ms. Massaro’s testimony does not create a factual dispute because public records document what actually happened,” Chomiak argued. “As for the correction of the deposition testimony of Ms. Massaro, Ms. Massaro, who was extremely nervous about being deposed and who became very confused during her deposition in 2013 about a meeting three years earlier, originally and mistakenly testified to something that did not happen. Ms. Massaro originally testified that, in 2010, the City’s Civil Service Board voted to end the use of the eligibility list for promotion to the rank of Sergeant in the New Haven Police Department after one year of use.

“No such vote ever happened, as all of the public records—the minutes of that Civil Service Board meeting, the transcript of the audio recording of that meeting and the audio recording of that meeting itself—make clear,” Chomiak continued. “In addition, all of the other Civil Service Board Commissioners present for that meeting similarly testified that no such vote occurred. As a result, Ms. Massaro’s earlier and indisputably incorrect testimony had to be corrected and was, as Ms. Massaro attested to in the submitted errata sheet.”

“The court’s decision to the contrary should be reversed and the city will file a motion for reconsideration seeking to do so,” Chomiak wrote.

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posted by: RACISMISALIVEANDWELL on February 27, 2014  2:03pm

This is what happens when you attempt to do something in the dark!  Eventually it will come out in the light!

If the City was smart, they would settle quickly!  Their track record of winning cases are not good, especially with the stench of John Destefano and his appointees still lingering around!

posted by: NewHavenTaxTooHigh on February 27, 2014  2:43pm

I’ve said it a hundred times: The City needs to get out of the business of testing and certifying civil service exams. Unload the responsibility and liability to an independent, impartial third-party that does this as it’s core business.

posted by: SwampfoxII on February 27, 2014  4:01pm

Looks like Attorney Williams did a fine job of defeating an attempt to get the case dismissed. Kudos to him. I hope these guys win and get promoted. It seems obvious the city departed from the norm of a 2 year list because of Latino scores. The solution to these endless problems is simple enough.  Respect a promotion test’s outcome no matter who the winners (or the losers) are, and race should be a NON-factor. That said, the hypocrisy of the organized black groups in New Haven’s civil service deserves comment. In the Ricci vs Destefano case, the black group demanded the city throw out the promotion scores because of an “adverse impact” on blacks.  When blacks score well, and the adverse impact is on Latinos, the blacks insist the test outcome should be respected and the list given its normal 2 year effect. It makes their rantings in the Ricci case seem shallow and based purely on selfish interests. Not a respectable history there.

posted by: Bradley on February 27, 2014  9:59pm

I would have a hard time reconstructing a meeting I participated in three months ago, much less three years ago. Notwithstanding this, the bar for summary judgment is quite high andI think Judge Frechettemade the right call.

posted by: RACISMISALIVEANDWELL on February 27, 2014  10:06pm

SwampfoxII, the only difference between this case and the Ricci case is that the Ricci list was thrown out from its inception, while this list was thrown out after 1 year.  Both achieved the same results for the City (Destefano).

I must add, in one sentence you applaud the Lawyer and claim you hope these guys win, but in another sentence you are claiming they are selfish, “When blacks score well, and the adverse impact is on Latinos, the blacks insist the test outcome should be respected and the list given its normal 2 year effect. It makes their rantings in the Ricci case seem shallow and based purely on selfish interests. Not a respectable history there.”  Which one is it? 

The last time I checked, discrimination was real!  As the court noted, “employment discrimination is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence.”  Getting passed over for promotion because someone doesn’t like the racial make up of the list is selfish, go ask Ricci!

posted by: SwampfoxII on February 28, 2014  12:37am

@racismisaliveandwell:  Just because black groups have been hypocrites on the issue doesn’t mean I should think these 10 men should lose their case because of that.  I just think these “black officer” organizations would have more credibility if thy didn’t change their tune depending on whether “they” did well or poorly on a given test. The Ricci guys weren’t being selfish.  They did what EVERYONE should do, which is insist that all respect the outcome, not use the race card to jump the line ahead of those who did better than you. If you read the many stories about the Ricci lawsuit group, it included guys who didn’t pass the test or score high. But they still said everyone should respect the outcome. How is that being selfish??  It was not only unselfish, but honorable.

posted by: Jones Gore on February 28, 2014  4:51am

Destefano used race to stay in office. The only people who suffer from this are those who have to work together, and the residents of this city.

The Politics in New Haven stink.

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