Black firefighter sues city

The “New Haven 20” respond to the U.S. Supreme Court ruling in June.
The “New Haven 20” respond to the U.S. Supreme Court ruling in June. Photo by Colin Ross.

Same case, different race.

On Thursday, New Haven firefighter Michael Briscoe filed a federal lawsuit against City Hall officials, claiming that New Haven’s 2003 firefighter promotional exam had a “disparate impact” on blacks and unjustly denied him promotion to lieutenant. Briscoe’s suit comes less than four months after the U.S. Supreme Court ruled that throwing out the same test unfairly discriminated against a group of 20 mostly white firefighters.

No black firefighters scored high enough on the test to qualify for a promotion. The city, fearing the black firefighters would sue, decided not to certify those results. The Supreme Court ruled that action unjustified, and now the black firefighters are indeed suing.

New Haven Corporation Counsel Victor Bolden said Thursday that City Hall officials will still push to certify the 2003 results, which would keep Briscoe ineligible for promotion.

“The city does not want to get mired in the past,” he said.

But the lawyer who brought the Supreme Court case, Karen Torre, said in a statement that Briscoe’s motion could complicate her case, Ricci v. DeStefano, which has been remanded to a lower federal court to determine compensation for damages owed to Torre’s client. Since the contested 2003 test, no new lieutenants or captains have been promoted.

“It is our position that Mr. Rosen’s suit is legally baseless, untimely and filed for the improper purpose of attempting to delay my client’s promotion and the city of New Haven’s compliance with an opinion and order of the United States Supreme Court,” Torre said in a statement to the New York Times.

No one answered the door of Briscoe’s residence Thursday night. Briscoe’s lawyer, David Rosen, who filed the lawsuit, did not immediately respond to a request for comment left on his office phone Thursday evening.

In August, the Supreme Court ruled in the 5–4 decision that refusing to certify the promotional exam, which originated with an 1986 agreement reached with the firefighters’ union, violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, religion or national origin. (Of the 20 firefighters who filed the lawsuit against the city, one was Hispanic and 19 were white.)

Rosen wrote in the lawsuit, which was filed in the federal court in New Haven, that the test also discriminated against his client, Briscoe, who is a black firefighter. Because of the discrimination, Rosen wrote, City Hall officials should promote Briscoe to the rank of lieutenant and award him the six years of missed seniority and back pay.

“As a result of the City’s unlawful conduct, the plaintiff is threatened with loss of promotional opportunity and with lost income and benefits,” Rosen wrote in the complaint.

Rosen argued that City Hall officials disproportionately considered the written and oral sections when determining test scores.

According to the lawsuit, the oral section of the city exam counted for 40 percent of the score, while the written counted for 60 percent. Across the nation, Rosen wrote, public safety officials count the section as 70 percent and written section as the remaining 30. Briscoe scored the highest of all 77 candidates for lieutenant on the oral section, but his poorer performance on the written section dropped him to 24th place — too low for promotion. Had the ratio of the sections been switched, Briscoe would have been one of the top candidates, according to the lawsuit.

Bolden said in an interview with the News on Thursday that city officials are receptive to all suggestions that would make the test less discriminatory.

It is unclear, though, whether Briscoe’s colleagues support the new lawsuit. About a half-dozen firefighters who work at the Dixwell fire station on Goffe Street — the workplace of Frank Ricci, who was named in the Supreme Court case — declined to comment, saying they received a city memo not to talk to the media.

But at the time of the ruling, some firefighters said they hoped the case’s conclusion would allow the promotions to start again.

“People are waiting to move on,” Lt. Luke Rivera told the News in June. “The city will hopefully put together a promotional exam quickly. We need leadership in the department right now.”

Correction: October 19, 2009

The previous version of this article contained three errors. First, it misquoted a statement by Karen Torre, the lawyer who brought the Supreme Court case. The full statement is as follows: “It is our position that Mr. Rosen’s suit is legally baseless, untimely and filed for the improper purpose of attempting to delay my client’s promotion and the city of New Haven’s compliance with an opinion and order of the United States Supreme Court.” Second, the article should have said that this statement was given to The New York Times. Third, the case has been remanded to a lower court to determine compensation for damages owed to Torre’s client, not to decide how to avoid future discrimination.

Comments

  • Y’11

    “Briscoe scored the highest of all 77 candidates for lieutenant on the oral section, but his poorer performance on the written section dropped him to 24th place — too low for promotion. Had the ratio of the sections been switched, Briscoe would have been one of the top candidates, according to the lawsuit.”

    Seriously???? I would’ve done much better on my last midterm if there were less multiple choices. That test had way more multiple choices than any other exams I’ve taken at Yale. I think I should demand a grade change.

    And how is this discrimination based on race? There’s still racism in workplaces around the country, but Briscoe should be ashamed. Also, shame on the low-class lawyer who probably approached him in the first place.

  • -

    I think it would have been useful to describe the shifting burden in such a disparate impact case.

    Briscoe has to show a prima facie case of discrimination, establishing that the employment test resulting in a statistically disproportionately poor performance among African Americans (I doubt anyone would question that here).

    Then New Haven would have to demonstrate that the test questions were job-related (Griggs v. Duke Power: “The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.”). There is no indication here that any question was unrelated to performance.

    Briscoe could still prevail if he can demonstrate that New Haven could have written an alternative, less discriminatory test but chose not to do so. But I can’t imagine this succeeding, given that the city spent several hundred thousand dollars hiring an outside contractor to develop the test with the explicit purpose of avoiding disparate impact…

  • y09

    Legally-inclined people: If this guy wins, will any minority who doesn’t do well on a test or doesn’t get hired be able to legitimately challenge the results/decision? Is that the overall implication here?

  • Student

    This guy needs to suck it up and realize he needed to study more like the firefighters that performed higher did and stop playing the race card.

  • Yale’11

    He did poorly on the written section. Boohoo. I guess race prevented him from doing better on that section more so than… I don’t know… dyslexia.

    It’s not as if they switched the ratio after seeing all the results so that none of the black firefighters got promotions. This is getting out of hand. Please just end this so that we can all move on.

  • Y ’12

    #s 1, and 4 thanks for the generalized, gut reaction posts. Unless you have some advanced knowledge of this test (if you do please let us know) don’t just tell him to suck it up. Its not not racist just because he’s black.

  • Y’11 @#6

    My uncle happens to be a firefighter, so he told me quite a bit about it. I remember him telling me that he studied for over a year for that test. Granted, he lives in another state, but from the research I have done, all the tests are pretty similar. If the New Haven test has questions that can actually be construed as racist, don’t you think the plaintif would’ve pointed it out explicitly in the lawsuit? Just because a test points out a racial or social discrepancy (in income, education,…), it doesn’t mean the test is itself racist.

  • Y ’00

    With respect, @7, you have no idea what you’re talking about. The law is not about whether a test is “racist.” The question is whether it has a disparate impact on any protected group (any race, either sex, etc) not justified by business necessity.

  • phil

    the guy just plain and simple needs the money, he lost his house, car and more.

  • Autonome Nationalist

    I am a not a Yale student, but I a have to say I think the races cannot live together. I believe the time has come for geographical separation between the races. There will always be conflicts like this as long as we live together. Why not give some states to whites and some states to blacks, hispanics etc… California for Mexicans, Blacks can get parts of the south. and whites can get the north west or mid west.

    I am also a member of stormfront which is now at 200,000 members who seek a homogenous White homeland. Growth has been spectacular since 0bama was elected. We have grown 50,000 in afew months and have 100,000 on at all times. Compare this number to the population of Austria, Montana, or Alaska and the number of soldiers in the Army.

    Here is a video for those who interested:
    http://www.youtube.com/watch?v=_10v2_bLoxs

  • Joe

    As a radical White Nationalist. I support affirmative action. I see whites as needing to be pushed over the edge by the government via reverse discrimination and other outrages before the White masses rise to action. A society in which Whites are actually treated fairly would not have a protest minded mindset.

  • Boo.

    It’s so funny to see lawyers for one side pose as Yale students.

  • Anon.

    What, no assy comment from Hieronymus?

  • none

    I hope Rosen sees this video. It is a ww2 war vet saying he didn’t fight nazis to be ruled by affirmative action nazis today.

  • Why? How is he going to prove that New Haven’s alteration of the weighting of the two sections unfairly discriminated against him on the basis of his race, and that New Haven was intending to preclude the advancement of him and other African-Americans by doing so?

    This is why I don’t think New Haven should ever have discarded the results in the first place. They knew they would be sued (or at least, they should have) regardless of which action they took, but whereas discarding the results would result in a lawsuit with merit and the potential to drag on for years (as Ricci v. DeStefano did), keeping them would result in something with much less substance, and thus, less headache. I don’t foresee this legal endeavor advancing far beyond the court it was initiated in.

    As a final note, what incentive would New Haven to discriminate against black firefighters, considering doing so would only harm their efforts to reduce crime and poverty?)

  • jhc

    The City has been doing that for a long time. it’s politics. The Union pandering by the mayor is so out of control and shameless it turns ones’ stomach. A mayor that knows when to grovel is good for incumbancy. His dept. heads do nothing but stir up litigation.( so sue they scream,it’s not our problem ).
    They need to be held accountable for their actions. If the mayor is behind throwing exam results out of the window knowing full well what he is doing is illegal he should be forced to step down and imprisoned. You can’t keep giving residents and others like this lawsuits as a consolation prize.

  • Yale Law ’07

    The firefighters’ unions have a long, long, long history of representing white firefighters. A somewhat shorter history of representing black firefighters. And if you read up on this history, you’ll find that in many cities across the country, it’s the union that is the most aggressive about keeping firefighting jobs out of the hands of minorities and in the hands of their own sons and nephews.

    Why is this relevant here? Because the 60-40 written-oral split on the test at issue in this lawsuit — which was totally indefensible from the point of view of meritocracy, since everybody who works on this issue has long recognized that the written tests are poor predictors of firefighting performance — was there for one reason only: the union demanded it in their contract.

    The written test was a game that the white firefighters and the union knew how to play. They had the test books months before anyone else could get them. They had generations of experience with how to cram for these tests and do well. More modern ways of assessing firefighting performance — especially the assessment centers now in use in most of the country, and to a lesser extent the oral quick-tell-us-what-you’d-do-in-this-detailed-hypothetical exam — frankly represent a threat to the old system. They make it more likely that new people like Michael Briscoe will get in there who have talent and ability but don’t have dads and uncles who are firefighters in the union.

    There’s no sensible reason to use a written multiple-choice quiz as the main part of the test for who will be a better fire officer — unless what you want to do is keep the jobs in the hands of the people who have always had them.

  • ROFLCOPTER

    Oh, I’m glad to see the latest YDN administration is allowing Neonazis to comment on the YDN website.

  • Hieronymus

    @#13

    Race is a human construct with no basis in biology.
    That “[n]o black firefighters scored high enough on the test to qualify for a promotion” is irrelevant. I couldn’t care less.

    A firefighter is a firefighter is a firefighter. A man is a man.

    No black firefighters scored high enough on the test to qualify for a promotion.

    No black firefighters scored high enough on the test to qualify for a promotion.

    No black firefighters scored high enough on the test to qualify for a promotion.

    Read it enough times–it is Liberal claptrap, in contravention to MLK’s dream of a colorblind society. To paraphrase Supreme Court Chief Justice Roberts: “The only way to end racial discrimination is to end racial discrimination.” The test was not discriminatory, but the attitudes and outright condescension implicit in the statement “[n]o black firefighters scored high enough on the test to qualify for a promotion” is disgusting.

  • @#19

    “Race is a human construct with no basis in biology.”

    I don’t believe this statement is entirely accurate. The biological basis is that race is often defined by heritable traits (usually visual ones like skin color, eye color, morphology, etc.). Populations that are visually (racially) distinct are often genetically distinct, as well. So while the concept of “race” is a human construct, it still has a basis in biology.

    Bottom line is that people who studied hard and scored highly on a gov’t approved, standardized, non-discriminatory test were denied promotion because they were white. THAT IS DISCRIMINATION.

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