NY court reinstates lawsuit by New Haven fireman

August 15, 2011 - 7:14 PM

NEW YORK (AP) — Reviving a lawsuit brought by a black firefighter, a federal appeals court decision on Monday raised new questions about the impact of a Supreme Court ruling in favor of the reverse-discrimination lawsuit brought by 17 white firefighters and one Hispanic firefighter seeking promotions in a Connecticut city where white candidates outperformed minority candidates on an examination.

The 2nd U.S. Circuit Court of Appeals in Manhattan said the lawsuit by New Haven, Conn., firefighter Michael Briscoe was too hastily tossed out by a lower court judge who referred to the Supreme Court decision in Ricci v. DeStefano, a case brought in 2004.

The Supreme Court ordered New Haven to enforce the results of a 2003 exam that led to the promotion of the white and Hispanic firefighters and rejection of Briscoe's promotion quest. The Supreme Court said local governments can nullify the outcome of such tests only if they can prove there is a "strong basis in evidence" that the tests were discriminatory.

The 2nd Circuit called the Supreme Court decision a "limited holding" and said its restoration of Briscoe's case was consistent with the Supreme Court's intent not to substantially change discrimination law with the Ricci case.

In 2003, New Haven had refused to certify the results because it said the exams were unfair to minority firefighters and it feared the outcome would lead to liability if the fairness of the results was challenged in court. The three-judge panel of the 2nd Circuit said it was unusual that the Supreme Court did not return the New Haven case to the lower court so the city could see if it had the evidence to prove there was a "strong basis" to show the tests were discriminatory.

Briscoe's lawsuit maintained he would have been promoted to lieutenant if the exam followed the industry norm and calculated the results with 30 percent based on answers to written questions and 70 percent based on oral answers, rather than the 60 percent written and 40 percent oral test that New Haven used. His lawyer, David Rosen, said the 39-year-old Briscoe scored the highest among 70 firefighters on the oral portion of the test but did not do well on the written exam.

Rosen predicted that the restoration of Briscoe's lawsuit clarifies that the long term impact of the Supreme Court ruling in Ricci v. DeStefano is limited.

"Some people feared and others hoped that the Ricci case meant that no matter how arbitrary a test was, it couldn't be challenged in court on discrimination grounds. This case helps confirm that tests that arbitrarily exclude any group be it based on sex, race, national origin or other categories is illegal," Rosen said. "The only reason he wasn't promoted was that the city arbitrarily decided that the written test should count for more than the oral test," he said.

Victor A. Bolden, corporation counsel for the city of New Haven, said the Supreme Court ruling left no room for Briscoe's lawsuit.

"An examination is either valid or invalid. Either it is a legitimate tool for promotion to a position or it is not a legitimate tool to determine who should be promoted. It, however, cannot be both. The Supreme Court ordered the city to promote consistent with the examination's results. These court-sanctioned promotions are lawful and the exam results used in making them must be considered legitimate as well."

Rosen said his client is not looking to replace any firefighters who were already promoted.

The appeals court said New Haven could have prevented Briscoe's lawsuit if it had added all test takers to the Ricci lawsuit before a lower court judge ruled in the case. The 2nd Circuit noted that the Ricci lawsuit was settled on July 27 and that Briscoe had repeatedly asserted that he wants an outcome consistent with the Supreme Court's findings. It also said the Briscoe lawsuit could still be dismissed on various grounds, including if the statutes of limitations had passed.