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Case 50: New Haven Refused to
Promote Firefighters
Who Scored Highest on Exam!

Equal Opportunity NOT Equal Results
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JUNE 29, 2009 -- U.S. SUPREME COURT RULES AGAINST RACIAL QUOTAS IN NEW HAVEN FD! VICTORY! Horror
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The New Haven 20 WON!!!

[Washington, DC July 18, 2009] -- Words cannot describe how proud I am of the New Haven 20 and their attorneys for their well-deserved victory. These men studied extremely hard for a valid, race-neutral promotional exam and they passed with flying colors! Then, when New Haven chose to throw out the exam results rather than promote too many white guys, the New Haven 20 again fought back just as hard, all the way to the U.S. Supreme Court, and they WON!

          In its 5 - 4 decision released on June 29, 2009 the U.S. Supreme Court said New Haven was wrong to throw out the exam results. Nothing in the record indicated there was any racial bias whatsoever in the exams.

          Just as significantly, conservative analysts have examined the Supreme Court's June 29, 2009 Ricci opinion and they posit that all 9 of the Supreme Court justices agreed that Sonia Sotomayor and the Second Circuit panel mishandled this important case. The Supreme Court justices were also critical of Judge Janice Bond Arterton's handling of the case at the district court level.

          The City of New Haven's handling of the case was so corrupt and odiferous that, in his concurring opinion, Supreme Court Justice Samuel Alito devoted several paragraphs specifically to the slimy role of the black Rev. Kimber in violating the fire fighters' rights. Reverend Kimber fashions himself as a "black power broker" in the tiny, little pond of New Haven politics, and he routinely and reliably delivered the black voting bloc to the city's politically malleable, left-leaning mayor, John DeStefano (DeStefano deservedly earned the honor as the named defendant in the Ricci lawsuit).  Justice Alito also specifically mentioned the Reverend Kimber's famous threat that some new fire recruits wouldn't be hired because "they just have too many vowels in their name[s]." I guess the Reverend Kimber didn't much care for Italians. Who knew?

          The complete Supreme Court opinion in Ricci v. DeStefano is available here:
http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

          Please honor and support the brave and tenacious New Haven firefighters who fought so hard to bring color blind justice a little bit closer to reality by visiting their official web page at: http://newhaven20.com/

          I will publish a more thorough analysis shortly. I apologize for the delay but my new "day job" at a federal civil rights agency has been keeping me kind of busy fighting this type of discrimination.

          Immediately below on this page you will find archival, historical materials about the development of this important reverse discrimination case. I first began working on this story over Thanksgiving weekend 2004 by poring over the unbelievable news accounts regarding the City of New Haven throwing out these exam results rather than promote the white guys.

Thanks, New Haven 20, for your courage and your tenacity! I am very proud to have gotten to know you and your stories!

Sincerely,
Tim Fay
Adversity.Net, Inc.
editor@adversity.net

OLDER BACKGROUND / ARCHIVAL INFO

1. Introduction and Overview - DRAFT
Originally Posted Dec. 11, 2006
Updated May 18, 2008

[Analysis by Tim Fay, Adversity.Net]

          In November and December of 2003 the New Haven Fire Department administered promotional exams for Captain and Lieutenant. 

May 2008:
After five years of litigation the "New Haven 20" case may be headed to the
U.S. Supreme Court
          New Haven paid $100,000 to a high stakes diversity testing firm, IO Solutions, Inc. of Illinois, to design the exams to be completely free of any racial bias.  This is a necessary step these days in order to avoid charges of disparate impact upon protected  minority groups -- and New Haven does have a large population of protected minority groups.
          IO Solutions, Inc. is one of a few dozen firms which specializes in this kind of politically correct test design, and they are very good at it.  According to court filings, IO Solutions did everything right in designing the New Haven fire department's promotional exams to be completely race-neutral, i.e., to not have a disparate impact upon selected, preferred skin colors. New Haven Regional Fire Training Academy

INDEX:

1. Intro / Overview
2. The Exam Scores
3. Timeline
4. News Articles
5. Legal Documents, Filings, and Court Decisions
6. Attorney for Firefighters
7. Related Reading (Uniform Guidelines)
          Yet, when the New Haven FD administered the race-neutral tests in November and December of 2003, white firefighters scored so much higher than their black and brown counterparts that very few preferred minorities would have been promoted to the seven open Captain vacancies, nor to the eight open Lieutenant vacancies, if the exam scores were used.

          New Haven's city charter requires that they follow a "rule of three" which requires that each open promotional position be filled from among the top three scorers on the exams.

          If the "rule of three" were strictly applied to the 2003 promotional exams, it would have resulted in all of the open Captain and Lieutenant positions being filled by the best-qualified, highest scoring candidates. 

          Unfortunately the best-qualfied, highest scoring candidates turned out to be mostly white. 

          Oops.

          The City Fathers and Mothers of New Haven reacted quickly to this politically unacceptable turn of events.  They simply refused to certify the results of their fire department's race-neutral exams, thus effectively nullifying the results.  

          A reverse discrimination lawsuit was filed by the mostly white, highest-scoring firefighters who insisted that the race neutral exam scores should be used to promote them.  Their lawsuit was thrown out by a liberal judge (a Clinton appointee), and the firefighters have filed an appeal which they stand a good chance of winning.  More on that later.

New Haven FD Fire Scene           The upshot is that as of the date of this posting (12-11-06) -- three years after the race-neutral exams were administered -- vacancies have been allowed to go unfilled and are temporarily occupied by firefighters in an 'acting' capacity.  Some of the temporary 'acting' firefighters occupying these positions actually failed the Lieutenant and Captain exams, thereby endangering firefighters under their command and the public at large.

          This, then, is a saga of dysfunctional racial sensitivity, political correctness, and a discriminatory policy which demands that selected skin colors (preferred or protected minorities) be hired in proportion to their numbers in the locally available labor pool even if those individuals do not hold the highest qualifications (or exam scores).   


2. Exam Scores - DRAFT

Captain's Exam:   There were seven Captain vacancies at the time the race neutral 2003 Captain's Promotional Exam was administered.  41 New Haven firefighters took the exam, of which 25 were white, 8 were black, and 8 were Hispanic.

          The test had two parts: a written exam which counted for 60% and an oral exam which counted for 40%.  The extremely subjective oral component is a popular tool that diversity testing firms use to boost passage rates for minorities. [The latter is my opinion and is not part of the firefighters' legal challenge.  Editor]

          The combined test score (the right most column, below) was to be the final determinant of who would be eligible for promotion.

 

INDEX:

1. Intro / Overview
2. Exam Scores
See Also: Lieutenant Exam Scores
3. Timeline
4. News Articles
5. Legal Documents, Filings, and Court Decisions
6. Attorney for Firefighters
7. Related Reading (Uniform Guidelines)

          Under New Haven's "rule of three", each of the seven Captain vacancies should have been filled from among the top three scorers.  When the 1st vacancy was filled, that would reduce the "top three" pool by one, and the 4th highest scorer would then be moved up into the "top three" to be considered for the next (2nd) Captain position to be filled, and so on.  Thus all seven Captain vacancies would have to have been filled sequentially from among the top ten in the score list below.

          But the top ten scorers on the Captain's exam consisted of 8 whites, 2 Hispanics, and no blacks!  So at best, 2 Hispanics might have been promoted to Captain, at least 5 whites definitely would have been promoted, and NO blacks would have been promoted.  That politically incorrect result was unacceptable to New Haven's elite.

          Immediately below are the actual exam scores and rankings for all 41 of the 2003 test applicants for the open Captain positions:

Ranking:
(According to combined score)
Race: Oral Exam Score (40%): Written Exam Score (60%): Combined Score:
(oral + written):
1 W 89.52 95 93
2 W 80.00 95 89
3 W 82.38 87 85
4 W 88.57 76 81
5 W 76.19 84 81
6 H 76.19 82 80
7 W 76.19 82 80
8 H 70.00 84 78
9 W 73.81 81 78
10 W 84.29 72 77
11 W 87.62 69 76
12 W 80.00 74 76
13 H 79.05 74 76
14 W 73.81 77 76
15 W 76.67 74 76
16 B 82.38 70 75
17 W 73.33 74 74
18 W 70.00 76 74
19 B 68.57 74 72
20 W 82.38 64 71
21 W 56.67 81 71
22 B 70.95 70 70
23 W 62.38 75 70
24 W 78.57 64 70
25 W 71.43 68 69
26 W 71.43 68 69
27 W 59.05 76 69
28 H 60.48 75 69
29 W 57.14 75 68
30 B 52.38 77 67
31 H 67.14 65 66
32 W 55.24 68 63
33 H 58.57 65 62
34 W 48.57 69 61
35 B 67.62 56 61
36 H 57.14 61 59
37 B 70.48 50 58
38 H 42.86 67 57
39 W 53.81 58 56
40 B 60.00 53 56
41 B 54.76 49 51
Ranking Race Oral Written Combined

Lieutenant's Exam:   There were eight Lieutenant vacancies at the time the race neutral 2003 Lieutenant's Promotional Exam was administered.  77 New Haven firefighters took the exam, of which 43 were white, 19 were black, and 15 were Hispanic.

          As with the Captain's exam (above), the Lieutenant's exam had two parts: a written exam which counted for 60% and an oral exam which counted for 40%.  The combined test score (the right most column, below) was to be the final determinant of who would be eligible for promotion.

 

INDEX:

1. Intro / Overview
2. Exam Scores
See Also: Captain Exam Scores
3. Timeline
4. News Articles
5. Legal Documents, Filings, and Court Decisions
6. Attorney for Firefighters
7. Related Reading (Uniform Guidelines)

 

Ranking:
(According to combined score)
Race: Oral Exam Score (40%): Written Exam Score (60%): Combined Score:
(oral + written):
1 W 88.75 91 90.10
2 W 87.50 87 87.20
3 W 77.50 91 85.60
4 W 85.00 84 84.40
5 W 80.00 87 84.20
6 W 73.75 91 84.10
7 W 80.83 84 82.73
8 W 73.33 89 82.73
9 W 63.75 95 82.50
10 W 68.33 91 81.93
11 W 69.58 86 79.43
12 W 73.75 81 78.10
13 W 58.75 89 76.90
14 B 77.50 76 76.60
15 B 61.25 86 76.10
16 B 80.42 73 75.97
17 W 77.50 77 77.20
18 W 61.25 83 74.30
19 W 80.42 66 71.77
20 B 70.83 80 76.33
21 W 78.33 70 73.33
22 B 70.83 74 72.73
23 W 66.67 76 72.27
24 B 92.08 59 72.23
25 W 72.50 72 72.20
26 W 73.33 71 71.93
27 H 55.00 82 71.20
28 H 69.17 72 70.87
29 W 65.83 74 70.73
30 W 58.33 79 70.73
31 H 53.75 82 70.70
32 W 77.50 66 70.60
33 W 73.75 68 70.30
34 W 71.67 69 70.07
35 W 64.58 73 69.63
36 H 70.83 68 69.13
37 W 73.75 66 69.10
38 W 58.75 76 69.10
39 W 51.25 80 68.50
40 H 62.50 72 68.20
41 W 51.67 79 68.07
42 B 70.83 65 67.33
43 W 64.58 69 67.23
44 W 79.17 59 67.07
45 H 56.25 73 66.30
46 W 55.00 73 65.80
47 B 66.25 65 66.50
48 W 50.42 75 66.17
49 H 57.50 70 65.00
50 B 69.17 60 63.67
51 H 51.67 71 63.27
52 W 71.67 57 62.87
53 H 50.42 71 62.77
54 W 56.25 66 62.10
55 B 56.67 64 61.07
56 B 56.25 64 60.90
57 H 42.50 73 60.80
58 H 51.25 67 60.70
59 B 55.00 64 60.40
60 B 51.25 66 60.10
61 W 49.58 67 60.03
62 W 60.00 60 60.00
63 H 46.25 68 59.30
64 B 60.83 58 59.13
65 W 57.92 58 57.97
66 W 51.25 62 57.70
67 W 44.58 66 57.43
68 H 44.17 66 57.27
69 W 45.42 65 57.17
70 B 55.83 58 57.13
71 W 54.58 58 56.63
72 B 58.75 55 56.50
73 H 40.83 64 54.73
74 B 52.08 56 54.43
75 H 48.33 58 54.13
76 B 52.92 49 50.57
77 B 45.83 46 45.93
Ranking Race Oral Written Combined

3. Timeline - DRAFT

Nov. and Dec. 2003:  New Haven FD administered promotional tests for Fire Captain and Lieutenant.  Seven Captain vacancies and eight Lieutenant vacancies were to be filled by the highest scorers on the tests.

Jan. 2004:  Test results showed that 14 of the 15 highest scorers were white, and the other one was Hispanic.  No blacks made the top 15.

Note:  The city charter expressly requires that each vacancy in the fire department be filled from among the top three scorers; promotions must be based upon merit as determined by the competitive examinations, and the charter further expressly prohibits favoring any candidate based on his or her race.  This is known as "the rule of three" in New Haven.
Jan 15 - Feb 2, 2004:  New Haven firefighter Frank Ricci, who is white, wrote a series of letters dated January 15, 23 and 26, 2004, as well as several additional letters dated February 2, 2004, requesting a wide variety of records concerning the most recent examinations for promotion to lieutenant and to captain in the New Haven Department of Fire Services. The requested records included all communications relating to the examinations, the examination papers, the score records showing the ranking by score of individually identified passing candidates (this last item only being the "scoring record"), all records concerning validation studies, and finally, the minutes of the January 22, 2004 meeting of the New Haven Civil Service Commission.

INDEX:

1. Intro / Overview
2. The Exam Scores
3. Timeline
4. News Articles
5. Legal Documents, Filings, and Court Decisions
6. Attorney for Firefighters
7. Related Reading (Uniform Guidelines)

Feb. 4, 2004:   By letter dated February 4, 2004, the Civil Service Commission denied the Ricci's requests for the requested records.

Feb. 19, 2004:   Ricci filed an appeal to the Commission regarding the denied records.  (Note:  Most or all of the requested records, including the test scores, ultimately were delivered to Ricci et al and the appeal was dismissed a year later on Feb. 9, 2005.)

March 18, 2004:   The Civil Service Commission effectively refused to certify the exam results by voting 2-2 (a tie vote) regarding whether to approve or discard the results.  (A majority vote is required to certify the test results.)

As reported by the New Haven Register Fri., 3/19/04:

          "Two contested promotional exams in the Fire Department were thrown out Thursday, in a vote that confused and confounded many firefighters who had come [to the meeting] to learn their fate.

          "For months, emotions were rubbed raw in anticipation of a dramatic vote by the Civil Service Commission on whether to approve or scuttle the results from the two tests that divided the department along racial lines.

          The vote finally came Thursday night [3/18/04]. The tally was a 2-2 tie.

          "Civil Service rules dictate a majority is needed to certify a test, so the exams were dead."

June 2004:  21 white firefighters filed a complaint with the Commission on Human Rights and Opportunities (CHRO) contending that they weren't promoted because they are white.  The complaint was prompted by the Civil Service Commission's decision (or non-decision) to throw out the results of the Nov. and Dec. 2003 promotional exams which failed to qualify enough minority candidates for promotion.

Nov. 6, 2004:   The New Haven Register reported: 

          "The state's anti-discrimination commission has thrown out complaints made by about 21 city firefighters who contend they weren't promoted because they are white.  … The Commission on Human Rights and Opportunities [CHRO] recently ruled in favor of the city and dismissed the complaints, filed in June after the city threw out two promotional tests because too few minorities scored well. … Attorney Karen Torre, who represents the firefighters, said she was not surprised by the decision. She filed with the CHRO primarily because the government requires it before filing a civil rights action.

          "She said she's filed a number of complaints with CHRO and lost every one, including one for two white New Haven police officers who were not promoted; they went on to win more than $800,000 from a federal jury.

          "Torre said her experience has been that the CHRO, the state agency that hears discrimination cases, is comprised mainly of affirmative action advocates."

Feb. 9, 2005:   <<See FOIA Opinion 02-09-05.txt>> Firefighter Ricci had filed a complaint with the Commission in Feb. 2004; subsequently most of the records requested were turned over to Ricci et al, except for the test scores.  By the time of the Feb. 9, 2005 ruling, the test contractor, I/O Solutions, Inc., had emailed the test results to Ricci et al.  Therefore the Commission dismissed Ricci's complaint on 2/9/05.

Sun., Aug. 13, 2006:  The New Haven Register reported:

          "Karen Torre is the lawyer for 20 New Haven firefighters who have appealed Judge Arterton's denial of their promotions to the U.S. Second Circuit Court of Appeals."

Sept. 28, 2006:   U.S. District Judge Janet Bond Arterton dismissed the white firefighters' lawsuit.  (See below for the judge's ruling.)

Oct. 2, 2006:   New Haven Register reports that Judge Janet Bond Arterton threw out the white firefighters' lawsuit filed by a group of mostly white firefighters.


4. New Articles - DRAFT

<<a synopsis of New Haven Register news stories to appear here>>

          You can temporarily download a complete collection of the New Haven Register reports about this case in the following formats:

WordPerfect format

MS Word format

Plain Text format


5. Legal Documents - DRAFT

On Sept. 28, 2006 Judge Janet Bond Arterton ruled against the firefighters:

"...defendants’ motion for summary judgment [Doc. # 52] is GRANTED as to the claims under Title VII, the Equal Protection Clause, 42 U.S.C. 1985, and the First Amendment.   Plaintiffs’ cross-motion for summary judgment [Doc. # 60] is DENIED. The Court declines supplemental jurisdiction over plaintiffs’ claim for intentional infliction of emotional distress. The Clerk is directed to close this case."

INDEX:

1. Intro / Overview
2. The Exam Scores
3. Timeline
4. News Articles
5. Legal Documents, Filings, and Court Decisions
6. Attorney for Firefighters
7. Related Reading (Uniform Guidelines)

Download the complete opinion (requires Acrobat Reader).

          The case was tried in the United States District Court, District of Connecticut.  Frank Ricci, et al., Plaintiffs, versus John Destefano, et al., Defendants.  Civil No. 3:04cv1109 (JBA) "Ruling on Cross-Motions for Summary Judgment"

          The New Haven firefighters then filed an appeal in the U.S. Second Circuit Court of Appeals seeking to overturn Judge Arterton's ruling. 

          Judge Arterton was appointed to the bench by Bill Clinton in 1995.

          In Feb. 2008, in a summary order, a three-judge panel of the 2nd U.S. Circuit Court of Appeals upheld the dismissal of the case by a district court judge Arterton.  See immediately below.


5.1 Second U.S. Circuit Court of Appeals
Update 02-16-08

          In late 2007 the New Haven plaintiffs appealed the lower court's decision to the Second U.S. Circuit Court of Appeals.  Attorney Karen Lee Torre presented the New Haven Firefighters' arguments to the three judge panel.

          After hearing oral arguments by Ms. Torre on behalf of the New Haven Firefighters, and arguments by the city, early this year, 2008, the Second U.S. Circuit Court of Appeals DENIED the appeal by the New Haven firefighters.

          Download the 2nd U.S. Circuit Court of Appeals order Here (requires Adobe Acrobat Reader).

           The three judge panel which heard this appeal consisted of circuit judges Rosemary S. Pooler, Robert D. Sack, and Sonia Sotomayor.  All three were appointed to this Court by the first President Clinton (Bill) between 1994 and 1997.

          The firefighters have decided to take the case all the way to the U.S. Supreme Court.  See immediately below. 


5.2 Next Stop: U.S. Supreme Court!
Update 05-18-08

          The "New Haven 20", as the plaintiffs are calling themselves, have filed a petition to the U.S. Supreme Court to hear their case.

          If the Supreme Court does decide to hear the "New Haven 20" case it would focus national attention on the issues of using race in employment and promotion decisions. 

          Such a high profile Supreme Court case would also call into question the controversial theory of "disparate impact" which essentially says that if blacks, for example, do more poorly on an employment test than their white counterparts then racism or prior discrimination is the culprit and therefore the black "victims" must be given preferential treatment, i.e., be allowed to jump to the front of the line.

          But the Supreme Court is a very long shot.  Petitions to the Supreme Court are rarely granted.  According to our sources the high court annually receives almost 10,000 such petitions and only 80 or 90 cases end up being selected to be heard.

          On the other hand, this Supreme Court has already shown a penchant for ruling against the use of race, gender or ethnicity in the granting or denial of employment, promotions, school assignments, or the award of government contracts.

          Download the New Haven 20 Petition to the Supreme Court Here (requires Adobe Acrobat Reader).


6. Attorney for Plaintiffs

          Attorney Karen Lee Torre is representing the New Haven firefighters in their pursuit of color-blind justice.  Ms. Torre has won numerous reverse discrimination lawsuits.  Most recently she won a high six figure settlement for New Haven police officers who were facing a reverse discrimination situation similar to that of the New Haven firefighters.

Attorney Address: Phone:
Ms. Karen Lee Torre
Law Offices of Norman A. Pattis LLC
129 Church Street, Suite 405
New Haven, CT 06510
(203) 865-5541

Fax: (203) 865-4811


7. Related Reading - DRAFT

          In her 48 page opinion (Oct. 2, 2006) rejecting the reverse discrimination claim of the New Haven Firefighters (Ricci et al), U.S. District Judge Janet Bond Arterton extensively, and we believe inaccurately, cited the federal Uniform Guidelines on Employee Selection Procedures (UGESP).

          The Uniform Guidelines on Employee Selection Procedures (UGESP) is the federal bible on constructing exams and employment tests which favor certain skin colors, races and ethnicities.  The UGESP was also used extensively by New Haven's expert in constructing the 2003 "race neutral" exams (IO Solutions, Inc.).

          Read the UGESP for yourself and decide whether or not it favors certain races, genders and ethnicities -- or even if it protects white employee-applicants against discrimination. 

SEE LINK:  Uniform Guidelines on Employee Selection Procedures (opens new window)

INDEX:

1. Intro / Overview
2. The Exam Scores
3. Timeline
4. News Articles
5. Legal Documents, Filings, and Court Decisions
6. Attorney for Firefighters
7. Related Reading (Uniform Guidelines)

END Case 50: New Haven REFUSED to Promote White Firefighters Who Scored Highest!

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*  We use the term reverse discrimination reluctantly and only because it is so widely understood.  In our opinion there really is only one kind of discrimination.