Melissa Bailey File Photo
Mayor DeStefano and Tinney, at the Firebirds endorsement.
Only two months after the city seemed to have dealt with the last vestiges of the Ricci case by settling for $5 million with a group of mostly white firefighters, it now faces a new lawsuit — this time from a group of black firefighters.
It’s exactly the situation the city was trying to avoid when it threw out the results of a 2003 fire department promotions exam after no African-American test-takers scored highly enough to be promoted. The city argued that it would be sued for using a biased test if it certified the results.
Instead, the city was sued by a mostly white group of firefighters who claimed “counter-racism.” The case went all the way to the U.S. Supreme Court, which sided with the so-called New Haven 20. The city finally settled with the group in July of this year.
On Oct. 7, a group of black firefighters filed precisely the suit the city had feared eight years ago. Lead plaintiff Gary Tinney and his six co-plaintiffs argue that in the same 2003 exam, the city violated their 5th and 14th Amendment rights by using a testing mechanism that clearly demonstrated an adverse impact on African-American promotion candidates.
Click here to read the complaint.
Two weeks later, Tinney and several of his co-plaintiffs appeared at a press event to endorse Mayor John DeStefano in his pursuit of another term in office.
“We are aware of this lawsuit and will respond accordingly at the appropriate time,” said city Corporation Counsel Victor Bolden.
The complaint also names the Local 825 firefighter’s union as a defendant. “A lot of the test structure is dictated by some agreement that the union has with the city,” said Dennis Thompson, the Ohio-based attorney who’s representing Tinney and his co-plaintiffs. “They’re directly responsible.”
“The union is very disappointed in this legal action,” said Jimmy Kottage, head of Local 825. “We believe the case has no merit, and we will fight this action.”
“Sure, We Want Promotion”
Despite eight years of litigation associated with the 2003 promotions exam, no one has yet challenged the validity of the test, said Thompson.
“We do these all over the country,” Thompson said of the case. His firm specializes in proving that promotions tests demonstrate racial bias. “This is not a new theory, nor is it something that’s unheard of in the fire profession. The problem is the tests do not adequately test.” That’s widely attested to by industrial and organizational psychiatrists, Thompson said.
It’s not just a matter of weighting the written and oral components of the test differently, Thompson said. That’s the argument that firefighter Michael Briscoe is making in a separate complaint against the city stemming from the test.
The test probably needs to be re-designed completely by a third-party “competent testing development” service, Thompson said. The test should not be shaped by collective bargaining or by the city deciding how it wants the exam to be, he said. “That’s really all we’re saying.”
“It’s the union that originally wanted the validation study to see if this test was proper,” said Kottage. “I believe the union took the right stance right from the beginning.”
The suit calls for the promotion of the plaintiffs, along with back pay and other damages.
“You already promoted a bunch of white guys off an invalid test,” Thompson said. “Sure, we want promotion.”
Thompson said race enters the equation because science shows that “cognitively loaded” tests, that is, ones that depend on memorization and regurgitation, have a disparate impact on African-Americans.
“The natural tendency is to say we all have the same opportunities to study,” Thompson said. But the research shows race is a factor in certain kinds of tests, he said.
What’s more, the tests don’t measure the skills one actually needs on the job, Thompson said.
“Frank Ricci’s a prime example. He spends all these hours memorizing stuff. What does that do?” Thompson said. “It shows you can memorize a bunch of stuff.”
Paul Bass File Photo
Mayor DeStefano and Ricci, at an endorsement by the fire union.
“Knowing information cold may not concern Attorney Thompson. However our job is dangerous,” Ricci responded in an email. “At a building or house fire there is no time to look something up in a book. … You must know the information. This information comes from books and training. Reading comprehension is critical. The lives of your fellow firefighters and citizens depend on it.”
The test measured the “knowledge, skills and abilities” needed to be an officer, Ricci said.
“Lets make it clear, they are trying to invalidate the promotions of qualified individuals who studied, worked hard and dedicated themselves to their profession,” Ricci said. “These members earned promotion based on merit and they just happen to be white, black and hispanic.”
“We’ve Got A Horse Race”
Asked about the timing of the complaint, Thompson said the case could not be brought until the promotions had been made. “The reality is that they couldn’t file suit when the city did not certify the list because they didn’t have an adverse action.”
The same group of black firefighters did attempt — unsuccessfully — to intervene in the Ricci case after it was sent back to New Haven by the U.S. Supreme court. After the promotions were made, the group filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). It wasn’t until that complaint had gone through the EEOC that the group could file suit, Thompson said. Hence the recent filing date.
Thompson said the fact that Ricci and his fellow firefighters won their U.S. Supreme Court case should have no impact on the new complaint by Tinney and his fellow firefighters. “You can’t say that that decision, which never even looked at this issue, has any kind of bearing on this.”
The EEOC, however, saw it differently. When the commission closed the file on the black firefighters’ complaints in July, it did so with a one line explanation: “Dismissed in light of Ricci v. DeStefano.” Click here to read it.
A recent appeals ruling in favor of firefighter Briscoe, however, does bode well for his clients, Thompson said. It shows that challenges to the test itself do have merit, he said.
“I’m not a betting man, but we’ve got a horse race in this one,” he said.
Past stories on fire department promotions and the Ricci case:
• New Haven 20 Win $2M+; Lawyers Win $3M
• Arterton Asks 2nd Judge To Look At Ricci Conflict Claim
• Torre Blasts Ricci Judge For Consorting With “Feminists”
• Judge Swings Back; Ricci Case Stalls
• “Tinney Intervenors” Step Down In 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