Eleven city firefighters have filed a new lawsuit over two 2003 promotional examinations that were at the center of a landmark 2009 U.S. Supreme Court case. Like the New Haven 20 before them, the 11 new plaintiffs argue the city illegally denied them potential advancement — and ask the court to intervene. But unlike their predecessors who successfully challenged the city for throwing out the exam results in 2004, the newest plaintiff firefighters take issue with the city’s actions in 2009 when, under court order, it adopted the promotional lists and made promotions.
The key to the new lawsuit, Luschenat v. City of New Haven, is whether the city violated its civil service rules when it certified the lists retroactively.
The significance of the lawsuit requires a brief civil service history lesson. The two tests were originally administered in late 2003, and, in January 2004, the city raised the alarm that black firefighters scored disproportionately poorly.
On March 18, 2004, after several contentious public hearings, the exam results were thrown out when the Civil Service Commission deadlocked in a 2-2 vote. But instead of facing a potential lawsuit from black firefighters, 20 mainly white firefighters sued, arguing the city violated their civil rights by refusing to certify the lists because of racial politics.
After years of legal wrangling, the U.S. Supreme Court heard the Ricci v. DeStefano case, and sided with the “New Haven 20” plaintiffs. In November 2009, a federal judge ordered the city to certify the lists.
That’s where the 11 firefighters enter the picture.
The Civil Service Commission voted to retroactively certify the lists, and, in December, the city promoted 24 people who would have been eligible based on existing vacancies between March 18, 2004, and March 18, 2006.
Other positions that opened after 2006 were left vacant, and those along with future vacancies are what the 11, racially diverse firefighters stake claim to.
According to the lawsuit, city civil service rules require promotional lists to be valid for at least one year from the certification date, and that can be extended to two. Based on that, according to John “Chip” Walsh, the lawyer for the 11 firefighters, the promotion lists should be valid through November 2011, and his clients should be eligible to fill any vacancies.
“I think you have to apply civil service rules once you certify the tests,” he said. “Quite honestly, if the judge (in Ricci) had intended for the certification to be retroactive, we believe that would have been included in the order, but it wasn’t.”
City Corporation Counsel Victor Bolden called the lawsuit “baseless.”
“Since the Supreme Court’s ruling in the Ricci case, the city of New Haven’s approach to promotions to the ranks of lieutenant and captain in the New Haven Fire Service has been simple and straightforward: Promote each and every one of those individuals who would have been promoted, if the examination results had been certified in March 2004. Consistent with that approach, late last year, the city promoted 24 individuals — the only individuals who would have been promoted,” Bolden said in a statement. “As a result, the recent lawsuit filed by 11 individuals is baseless. While they claim an entitlement to promotions to either of these two positions, their performance on the 2003 exams does not warrant it, and no plausible reading of the applicable law requires it.”
The 2003 exams have generated a number of lawsuits and threatened litigation with an urgency driven in part because of the infrequency with which exams are administered. In the fire service, promotions can be administered only once, or at most twice, in a decade, making every opportunity paramount.
Plaintiffs in the new suit are Lts. Karl Luschenat, James Schwartz, Filipe Cordero and Eugene Stabile Jr., and firefighters Thomas Fitzgerald, Dawud Amin, Kenneth Goodale, James Kearney, Octavius Dawson, Steven Ortiz and Eric George.
The lawsuit was filed in May, but the city this month moved to transfer the case to federal court.
Meanwhile, another lawsuit stemming from the exams suffered another setback.
This week, Senior U.S. District Judge Charles Haight granted a black firefighter’s request for reconsideration of Haight’s previous dismissal of his civil rights claim, but then upheld his previous decision throwing out the case.
Firefighter Michael Briscoe, who scored first on the oral portion of the lieutenant’s exam, argued the city’s heavier weighting of the written portion had a discriminatory effect.