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Motion on behalf of black New Haven firefighters - New Haven 20

Motion on behalf of black New Haven firefighters - New Haven 20

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Published by borzechowski7590
Attorneys for a group of black city firefighters Monday filed a motion asking a federal court to halt the promotion of 10 other firefighters (including four minorities) who scored well enough on 2003 exams to be promoted.
Attorneys for a group of black city firefighters Monday filed a motion asking a federal court to halt the promotion of 10 other firefighters (including four minorities) who scored well enough on 2003 exams to be promoted.

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Published by: borzechowski7590 on Dec 08, 2009
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IN THE UNITED STATES DISTRICT COURTDISTRICT OF CONNECTICUT
 FRANK RICCI, et al, ) CASE NO.: 3:04-CV-1109)Plaintiffs, )) JUDGE ARTERTONvs. ))CITY OF NEW HAVEN, et al, ))Defendants. )
MOVANT PLAINTIFF-INTERVENORS MOTION TO STAY
Movant Plaintiff-Intervenors, through counsel, move this Court for an order temporarilystaying 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 asthis Court: 1) rules on Movants’ motion to intervene; and 2) Movants filing their motion forpreliminary injunction relating to further promotions pending full and fair litigation of thepromotional testing issues which have heretofore not been heard.This Court through an order issued November 24, 2009, (Doc. 168) has ordered the Cityto 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, therewas no standing nor an adverse action upon which to base any conceivable action. (See, Movantsmotion to Intervene, Doc. 164).Movants filed a motion to stay and for status conference, which was denied by this Courton November , 2009 (Order, Doc. 175). In that order, this Court noted that it was required by theSupreme Court decision to promote the fourteen candidates identified by the Plaintiffs and theCity. 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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promotions. (Order, Doc. 175). Further, this Court stated that it is unknown whether any “otherPlaintiffs are entitled to remedial promotions.” (Order, Doc. 175).Shortly after the initial fourteen promotions order by this Court, the City announced thatit intended to promote another ten (10) candidates from those same defective eligibility lists.(Exhibit 1). The target date for these additional promotions is December 10, 2009. Movantsnow file another motion to stay any further promotions from these eligibility lists until such timeas the tests themselves can be subjected to thorough scrutiny.Throughout this case, neither the City nor the original plaintiffs ever disputed the validityof the promotional examinations used to determine the eligibility lists. Such is not the case as tothe Movants, who assert that not only are the promotional examinations in issue
not 
valid, butthat those promotional examinations cannot ever
be
validated. Their position is supported by theBrief Amici Curiae filed in support of the City of New Haven at the United States SupremeCourt by several Industrial Organizational psychologists. (Exhibit 2). Several IndustrialOrganizational psychologists also filed a related Brief Amici Curiae also questioning the validityof these tests and the use of job knowledge tests for promotional purposes in general. (Exhibit3).If, as the Movants assert, the promotional examinations in issue in this case are not valid,then a substantially different fact pattern arises before this Court than that which has existed todate by the agreement of the existing parties, specifically the examinations being used as thebasis to rank candidates and to make promotions are deficient, substandard and not sufficiently job-related to warrant either rank ordering or selection for promotion. No doubt, never having toaddress the validity of the actual examinations themselves made life much easier for all parties tothis point. There was no need for testing expert witnesses (there were none), no need for
Case 3:04-cv-01109-JBA Document 178 Filed 12/07/2009 Page 2 of 5
 
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validation reports (and none exist), and no one save a precious few even saw the actualexaminations, let alone the underlying testing data.Movants submit that no candidate can justify being promoted from a deficient evaluationand selection process that discriminates against any group – especially in the context of this casewhere everyone simply ignored test validity altogether. Movants are now at the place theywould have been in 2004 had the City certified the lists but before any promotions had beenmade – 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 areonly two, maybe three in the next proposed group of promotions.
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In the testing context, thisindicates that the test itself may be flawed.
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 This is why validation is so important and why it is so curious to Movants as to why theexaminations have never been addressed in this case. It is possible that a selection process thathas an adverse impact can still pass muster, if it can be demonstrated by the City that theexamination was sufficiently job related and consistent with business necessity to be valid andthe plaintiffs cannot demonstrate that there are alternative measures that are equally valid thathave less adverse impact.
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See, 42 U.S.C. 2000e-2(k).If additional promotions are made at this point, Movants could be irreparably harmed.
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The City and the Plaintiffs also did not dispute that there was a prima facie case of disparate impact. Movants arenot really sure how this determination was made, since adverse impact ordinarily cannot be determined until all theselections have been made, i.e., promotions are made and the eligibility list lapses. But in any event, that issue hasbeen resolved with this Court’s order: the identities of the putative promotees is known and impact ratios can now becalculated with certainty.
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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 arelevant range, then the issue of test validity arises. See, Uniform Guidelines on Employee Selection, 29 C.F.R.1607, et al.
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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 whichparty bears them. Second, there is no case law that supports such a radically new defense, either. Third, this caseuntil now has never been a disparate impact case, only a disparate treatment case. Therefore, any issues relating todisparate impact were not even before the Supreme Court in this case.
Case 3:04-cv-01109-JBA Document 178 Filed 12/07/2009 Page 3 of 5

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