“Tinney Intervenors” Step Down In Ricci Case

Almost two months after filing to intervene in the Ricci promotions case, seven black firefighters are bowing out of that battle — with a promise to file a new suit against the city.

The development is spelled out in a document filed by the firefighters on Monday to U.S. District Court Judge Janet Bond Arterton. It’s the latest twist in the ongoing case of Ricci v. Destefano.

The Ricci case centers on a group of 20 mostly white firefighters who sued the city in 2004. They claimed the city discriminated against them by throwing out the results of a 2003 promotions exam after no African-Americans scored highly enough to be among the first round of promotions. The Ricci plaintiffs won their case in the U.S. Supreme Court in June and 14 of the 20 firefighters were promoted in December.

Monday’s filing requests the withdrawal of a motion to intervene in the case. The motion had been submitted in November by the group of black firefighters. The group — led by Firefighter Gary Tinney (pictured above) — argued the promotions exam was invalid and sought to prevent promotions from going forward. Since those promotions have now been made, the new filing argues, the motion to intervene is now moot.

On Thursday, Judge Arterton granted the request to withdraw the motion to intervene.

In the first paragraph of their request to withdraw, the so-called ​“Tinney Intervenors” signaled that they are not done fighting. The filing states the group asks to withdraw the motion to intervene ​“in order to file an independent action on behalf of the parties previously seeking intervention for the purpose of staying promotions.” In other words, the group intends to file a separate complaint regarding the firefighter promotions exam.

Attorney Dennis Thompson, the Ohio-based counsel for Tinney and his fellow plaintiffs, said the group will file a complaint against the city, likely next week. That complaint will be a ​“disparate impact claim,” Thompson said. It will argue that the test is invalid and will seek promotions for the group of black firefighters. The complaint will further seek injunctive relief to force the city to change its testing methods.

“The exams don’t test on merit. The exams are just bad. That’s just the way it is,” Thompson said. Around the country, municipalities are moving away from the kind of tests New Haven uses, because scientific study shows that they are not valid, Thompson said. ​“They don’t measure what they’re supposed to measure.”

The promotions exams used by the city of New Haven place too much of an emphasis on memorization and written questions, Thompson said. Elsewhere, cities are beginning to use simulations and other high-tech test-taking method to measure leadership and decision-making under high-pressure circumstances, he said. ​“Go right to the science. You’ll see that we’re right.”

Even the oral portion of New Haven’s test is invalid, Thompson continued. The questions are not relevant to the actual duties of a firefighter, nor is the oral portion comprehensive, he said.

For these reasons, Thompson said, he will be arguing that his clients be promoted. ​“If they can promote a bunch of white guys on an invalid exam, you can promote us.”

Further, Thompson will be arguing that the city get rid of its current tests and start using valid tests. Better tests would mean ​“you’d end up with better officers who look more like the city of New Haven,” he said. Not one of the members of the New Haven 20 lives in New Haven, while the majority of the Tinney Intervenors do, Thompson said.

The proof that the test was not valid is obvious from the results, Thompson said. No one believes white firefighters are more competent than black, or vice versa, he said. Therefore, if the test were a valid test of job competency, then there would be an even distibrution of whites and blacks among the top scorers in proportion to the demographics of the department, he said. Since there wasn’t, the test is clearly invalid, he said.

“These aren’t merit-based exams,” Thompson said. ​“They’re just not.”

Frank Ricci himself said he studied for the exam with weeks of memorization, Thompson said. Memorizing answers and then reproducing them is not a test of leadership, he argued. ​“That’s nothing. Come on.”

Thompson said the Supreme Court’s June decision will not affect his new complaint because the question of test validity and disparate impact was not addressed by the high court. Instead, the city argued that it would have been sued if it had not tossed out the promotions test. ​“The issue of validity has never been litigated,” Thompson said.

Thompson’s law firm, Thompson and Bishop, works on cases like this all across the country, the attorney said. ​“We have had disparate impact cases for white firefighters and black firefighters and been successful with both,” he said.

City Responds

In an email on Thursday, city Corporation Counsel Victor Bolden expressed satisfaction that the motion to intervene was withdrawn, and disappointment that more litigation is coming.

“There is no need for any additional litigation around the 2003 exams,” he wrote. ​“As promised, the City has promoted consistent with this exam’s results. The City’s decision to do so, one fully consistent and appropriate given the Supreme Court’s ruling, must be respected by all and not further challenged in court.”

Briscoe Remains

In a separate filing on Wednesday, the Tinney intervenors requested to be excused from Jan. 20 oral arguments on their motion to intervene, since it is being withdrawn. Judge Arterton granted that request on Thursday.

A separate motion to intervene on Ricci remains to be discussed on Jan. 20. That’s the one brought by African-American firefighter Michael Briscoe. He argues that he should have been promoted after the 2003 test, but for the city’s scoring system, which he says has a disproportionately adverse impact on minority test-takers.

Past stories on fire department promotions and the Ricci case:

• Ricci Victors Seek Damages
• After 6‑Year Battle, Firefighters Get Badges
• Ricci Case’s ​“Tinney Intervenors” Try Again
• 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