motion on behalf of black new haven firefighters - new haven 20

8/14/2019 Motion on behalf of black New Haven firefighters - New Haven 20

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IN THE UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

FRANK RICCI, et al, ) CASE NO.: 3:04-CV-1109

)Plaintiffs, )) JUDGE ARTERTON

vs. )

)

CITY OF NEW HAVEN, et al, ))

Defendants. )

MOVANT PLAINTIFF-INTERVENORS MOTION TO STAY

Movant Plaintiff-Intervenors, through counsel, move this Court for an order temporarily

staying any further promotions from the eligibility lists for the ranks of Lieutenant and Captain,

based upon the examinations conducted in November and December, 2003, until such time as

this Court: 1) rules on Movants motion to intervene; and 2) Movants filing their motion for

preliminary injunction relating to further promotions pending full and fair litigation of the

promotional testing issues which have heretofore not been heard.

This Court through an order issued November 24, 2009, (Doc. 168) has ordered the City

to certify the eligibility lists and promote specific persons identified therein. To date, no black

firefighter has been heard in this case nor could they have. Until the lists were certified, there

was no standing nor an adverse action upon which to base any conceivable action. (See, Movants

motion to Intervene, Doc. 164).

Movants filed a motion to stay and for status conference, which was denied by this Court

on November , 2009 (Order, Doc. 175). In that order, this Court noted that it was required by the

Supreme Court decision to promote the fourteen candidates identified by the Plaintiffs and the

City. This Court also noted that the Supreme Court order had no impact or effect on any other

Case 3:04-cv-01109-JBA Document 178 Filed 12/07/2009 Page 1 of 5


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validation reports (and none exist), and no one save a precious few even saw the actual

examinations, let alone the underlying testing data.

Movants submit that no candidate can justify being promoted from a deficient evaluation

and selection process that discriminates against any group especially in the context of this case

where everyone simply ignored test validity altogether. Movants are now at the place they

would have been in 2004 had the City certified the lists but before any promotions had been

made with one notable addition: the identification of all the promotees existing and putative -

- is now known. There is not a single black firefighter among the first 14 promotions; there are

only two, maybe three in the next proposed group of promotions.

1

In the testing context, this

indicates that the test itself may be flawed. 2

This is why validation is so important and why it is so curious to Movants as to why the

examinations have never been addressed in this case. It is possible that a selection process that

has an adverse impact can still pass muster, if it can be demonstrated by the City that the

examination was sufficiently job related and consistent with business necessity to be valid and

the plaintiffs cannot demonstrate that there are alternative measures that are equally valid that

have less adverse impact.3 See, 42 U.S.C. 2000e-2(k).

If additional promotions are made at this point, Movants could be irreparably harmed.

1 The City and the Plaintiffs also did not dispute that there was a prima facie case of disparate impact. Movants are

not really sure how this determination was made, since adverse impact ordinarily cannot be determined until all the

selections have been made, i.e., promotions are made and the eligibility list lapses. But in any event, that issue has

been resolved with this Courts order: the identities of the putative promotees is known and impact ratios can now be

calculated with certainty.2

In any given population of equally qualified individuals, one would expect to see a relatively even distribution of

selections made at random, or chance. When the results are not as would be expected in random selection within a

relevant range, then the issue of test validity arises. See, Uniform Guidelines on Employee Selection, 29 C.F.R.

1607, et al.3

While there is Supreme Court dicta relating to the good faith belief as being a defense to a disparate impact suit,

in fact no such defense exists in disparate impact cases. First, the statute is clear what the burdens are and which

party bears them. Second, there is no case law that supports such a radically new defense, either. Third, this case

until now has never been a disparate impact case, only a disparate treatment case. Therefore, any issues relating to

disparate impact were not even before the Supreme Court in this case.



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Clearly, while there are limited promotional slots available, there are certainly enough ( as

indicated by the proposed 10 additional promotions) to fulfill any remedies sought by the

Movants in this case.

Promotion affects not only the immediate economic issues relating to wage increases, but

also the loss of future opportunities within the New Haven Fire Department. Moreover,

promotional cycles are relatively infrequent. Therefore, the ability to advance within the fire

department would be greatly impaired, if not utterly defeated, for some of the Plaintiff-

Intervenors.

Movants have legitimate claims and causes of action which have yet to be heard. They

have a high probability of success on the merits, as indicated by the amici briefs filed by the

Industrial Organizational psychologists in this case. All of the Movants claims are timely due to

the protracted delays caused by this case. Therefore, Movants request that this Court stay further

promotions from these eligibility lists pending the resolution of validity of the promotional

examinations.

From the date that Movants receive the test data in its native format, it is estimated that 3-

4 months will be required to complete and submit their expert report regarding the promotional

tests and another unspecified time to complete discovery regarding their claims. It is unknown

how long it will take to obtain the testing data and information from the testing consultant.

Movants have already retained Industrial Organizational psychologists as expert witnesses and

are prepared to move forward upon being permitted to intervene.



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Respectfully submitted,

/s/ Dennis R. Thompson________________Dennis R. Thompson, Ohio Reg. No. 0030098

Christy B. Bishop, Ohio Reg. No. 0076100

Thompson & Bishop

2719 Manchester Rd.Akron, Ohio 44319

330-753-6874

Fax: 330-753-7082e-mail: [email protected]

[email protected]

/s/ W. Martyn Philpot, Jr.

W. Martyn Philpot, Jr., Conn.

Reg. No. CT05747

Law Offices of W.Martyn Philpot, Jr., LLC

409 Orange StreetNew Haven, CT 06511

203-624-4666

[email protected]

LOCAL COUNSEL FOR MOVANTS

CERTIFICATE OF SERVICE

A copy of the foregoing was sent to all counsel of record via ecf electronic

notification this 7 day of December, 2009.

/s/ Dennis R. Thompson_______________

One of the Attorneys forIntervenor/Plaintiffs


motion on behalf of black new haven firefighters - new haven 20

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