Nearly 10 years after he sat down to take a fateful promotions exam, firefighter Michael Briscoe’s ongoing pursuit of a lieutenant’s rank hit another wall.
U.S. District Judge Charles Haight has dismissed a discrimination case brought by Briscoe (pictured), who had argued that a 2003 fire department exam had a disparate impact on African-Americans and kept him from a promotion that should have been his.
Briscoe’s lawyer, David Rosen, said Haight will now allow him to argue that Briscoe should be able to amend his complaint. If the judge rejects the explanation, Rosen plans to appeal, he said.
Briscoe’s claim stems from the same that 2003 promotions exam that spawned Ricci v. DeStefano, a case that went all the way to the U.S. Supreme Court.
In that case, firefighter Frank Ricci and a mostly-white group of 19 other firefighters sued the city after it threw out the results of the exam because African-Americans scored poorly. The city said it did so to avoid a discrimination lawsuit, but got hit with one anyway, from Ricci and the rest of the so-called “New Haven 20.”
After the U.S. Supreme Court ruled in favor of the New Haven 20, the city got hit with the other discrimination lawsuit it had been trying to avoid in the first place, from Briscoe.
(Another discrimination lawsuit, brought by a group of black firefighters after the Ricci decision, is still pending.)
Briscoe argued that the promotions test was unfair, because of the way that the oral and written portions were weighted. The written component of the city’s test was weighted as 60 percent of the total score and the oral component as 40 percent.
Briscoe scored highest in the department on the oral portion, but fared poorly on the written test, leaving him at 24th on the promotions list, not high enough to make lieutenant.
He argued that the 60/40 weighting had a disparate impact on black firefighters, and amounted to racial discrimination.
Briscoe sued the city in 2009. Judge Haight dismissed the case once before, in 2010. In 2011, Briscoe won an appeal to have Haight hear the case. On Sept. 9, Haight issued his decision.
He did not agree with Briscoe. Click here to read his ruling.
“While it is impossible not to sympathize with Briscoe’s situation,” Haight wrote, “I find myself unable to discern in his pleadings or the surrounding circumstances any basis for concluding that the City used an employment practice which caused a disparate impact on the basis of race.”
Haight pointed out that three African-Americans scored highly enough to be promoted, despite the weighting of the test. Had the test been weighted even 100 percent toward the oral portion, still only three African-Americans — three different black firefighters — would have scored highly enough to be promoted, Haight wrote.
“That proof supports an inference that the 60/40 weighting the city used had no disparate impact on African-American candidates as a race,” Haight wrote. “Of course, the 60/40 weighting had an adverse impact upon Briscoe as an individual: his lesser showing on the written exam compromised his greater showing on the oral exam, and cost him a promotion. But Title VII is not concerned with the effect upon an individual of the academic, educational or professional niceties of grading an examination for promotion.”
“I always thought the lawsuit to be a bizarre application of disparate impact law,” said Karen Torre, attorney for the New Haven 20. Her clients were granted “intervenor” status on the Briscoe case and she co-defended the complaint, with the city.
“Briscoe was in federal court arguing that the city promoted the wrong trio of black firefighters, that they were not qualified and that Briscoe was more qualified. I’ve never seen anything like it,” Torre said.
“Certainly a lot of the firefighters in the department are happy about the news” of the dismissal, Torre said.
“Based on our understanding of how this law works, we thought we had stated a valid claim, and we still think so,” said Rosen.
“Where we part company with the judge is that we think that if you look at all the numbers, then evidence that the test had a disparate impact is right there,” Rosen said. “The judge did not consider whether the test was actually a good test. We just haven’t gotten that far. I like to think we’re still going to be able to.”
City Corporation Counsel Victor Bolden released this statement: “After the Supreme Court’s decision in Ricci, the city moved as quickly as possible to comply with the ruling and to promote consistent with the results of the 2003 examinations. The court’s recent ruling in the Briscoe case re-affirms that approach as a solution and makes plain the problem with continuing to litigate over exams administered nearly 10 years ago.”