It is with profound sadness that we announce the tragic loss of a true friend. The world has lost a great man, a skilled and gifted attorney, a dedicated father and family man and a champion of the professional fire service.

Our thoughts and prayers go out to his family and friends and co-workers at Yetter Coleman.

Greg Coleman


 
 

 

 

 

 

FINALLY!

 

 

 
     
     

 

 

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BREAKING NEWS!

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PROMOTIONS ORDERED!

New Haven Register: Fire Board Makes Promotions

 



The Plaintiffs

Firefighters

Frank Ricci

Michael Christoforo

Ryan DiVito

Steven Durand

Mark Vendetto

Sean Patton

Chris Parker

Greg Boivin

Michael Blatchley


Lieutenants

Matthew Marcarelli

Brian Jooss

William Gambardella

Edward Riordan

Timothy Scanlon

Kevin Roxbee

Thomas Michaels

James Kottage

John Vendetto

Ben Vargas

Gary Carbone

 

 

 

 

 

 

 

 

   

 

Ruling From The United States Supreme Court


Fact Check

Many are offering their opinions on our case to the media, including those who claim status as legal analysts. We have added this fact check feature to correct the increasing number of misstatements about the facts of our case.  For those who intend to offer public commentary, we suggest you take the time to read the petitions and briefs in this case to ensure accuracy in your statements.

Fact Check on Amici's Ohio Lawyers' Statements

Recently a husband-and-wife lawyer team wrote an insulting letter to the New Haven Register. Our lawyers response to that is here.

Fact Check On False Assertions That Our Exams Had Anomalous Score Results

Fact Check On The 5 Psychologists Who Filed An Amicus Brief Supporting New Haven

Fact Check On Slate's Dahlia Lithwick and Emily Bazelon

New Haven 20 Responds to Acting Corporation Counsel Victor Bolden


The Latest Media Coverage

New Haven 20 Covered By Ainsley Earhardt and Sean Hannity on Fox News

Lou Dobbs April 22, 2009

CNN April 22, 2009

Chris Matthews MSNBC May 5, 2009

Chris Matthews on MSNBC Interview

Lou Dobbs with Karen Torre April 14

WTNH Covers the New Haven 20

Dobbs New Haven 20 April 10

Cavuto April 22



DECEMBER  BENEFIT A HEART WARMER  

THANKS TO ALL WHO CAME AND HELPED

The December benefit at Jack’s Bar & Grille was a great success.  Our goal was to sell 250 tickets but over 400 were sold and the place was jammed for five hours. Firefighters from departments throughout the State of Connecticut attended.  Firefighters groups from other cities in the U.S. donated generous gifts and gift certificates that we auctioned off at the benefit.  The show of support overwhelmed us and we are grateful to all who came.  THANK YOU to all our brother firefighters, their families and friends and all those who gave us financial, and more important, moral support. A special thanks to the police officers who volunteered at the event and to the Connecticut Firefighters Pipes and Drums who donned full Scottish garb and entertained the crowd with bagpipes.  You’re tops! 


CASE SUMMARY

THE NEW HAVEN 20

WHAT OUR CASE IS ABOUT

        The case of the New Haven 20 made its long way through the lower federal courts and is now before the U.S. Supreme Court. The Supreme Court granted our petitions for writs of certiorari on January 9th 2009. Legal briefs will be filed in February and the case will be argued before the Court in April.

          We are a group of lieutenants and firefighters in the New Haven Fire Department who underwent a grueling multi-phase civil service examination process to qualify for promotions to the command ranks of Captain and Lieutenant.  In early 2004, the city needed to fill vacancies in both ranks.  Although we were deemed the most qualified candidates, we were denied the promotions because we are White or Hispanic and not enough Black candidates succeeded.

The examination process cost each one of us hundreds (and for several of us, upwards of or over $1000) for the study materials, tutoring and mock exam preparation.  We gave up three months of our lives to intense study and preparation  during the three-month study period preceding the exams.  We studied many hours a day and rarely saw or spent little time with our families and friends during this period.  Some of us took leave from second jobs, or our wives did so to assume childcare responsibilities while we studied, so the economic loss was even greater than the out-of-pocket costs of the exams.  Our families sacrificed along with us in our effort to earn career advancement and better pay and pensions for our families.

          We were deemed the most qualified by the professional testing experts hired by the city to develop and administer these exams.  The city spent a fortune hiring I/O Solutions, Inc., (“IOS”) a reputable firm employing experienced experts in public safety job testing.  In collaboration with city fire department and civil service officials, IOS devised the tests after an exhaustive pre-exam development process and job analyses.  The test syllabi, consisting of nationally recognized fire science and tactical textbooks and other reference materials, were composed with the input and approval of the NHFD’s top two officials, one of whom is Black.  The written exams and oral assessment scenarios were painstakingly devised and reviewed for accuracy by IOS and external experts. 

The city and IOS also spent thousands recruiting some 30 high-ranking fire professionals from around the country to serve as assessors on ten panels tasked with rating the candidates during the oral assessment phase of the exam process.  The assessors, a multi-racial group that was in fact dominated by minorities (each of the ten panels had only one white assessor), underwent extensive training upon arrival in New Haven.  City officials admitted that the assessors’ ratings of the candidates were fair and accurate and further, that there was a demonstrated consistency of rating within and across assessor panels.

By all accounts, the lengthy exams we underwent were job-related and entirely fair.  But the city race-coded the candidates by attaching to each a crude race/ethnicity label (White, Black or Hispanic).  The test results showed that black candidates had a higher failure rate and a number who did pass did not demonstrate a high enough level of knowledge, skills and abilities to qualify for  immediate promotion into then-existing vacancies, although three black candidates for lieutenant later did become eligible for immediate promotion when additional, previously unanticipated vacancies arose.  Based on these results, two Hispanics had earned promotion to Captain (out of 8 vacancies) and three Blacks earned promotion to Lieutenant (a range of 15-17 vacancies). 

A small group of disgruntled black applicants who failed the exams had strong ties to city hall and to the politically powerful black chairman of the Board of Fire Commissioners, the Rev. Boise Kimber.  Kimber is a known supporter of and minority vote-getter for New Haven’s Mayor John DeStefano Jr. Kimber has the mayor’s ear and gets powerful appointments despite being a convicted embezzler and perjurer.  (Convicted felons cannot be firefighters in New Haven but they can be put in charge of a Board of Fire Commissioners!). 

This small but vocal group of failing candidates complained that the exams were racially “discriminatory,” even though the exams and selection process had nothing whatsoever to do with race but instead neutrally assessed candidates’ knowledge and qualifications for these command positions.  The city turned a race-blind process into a race-conscious process by race-coding the candidates and then making a decision on promotions based on the race of the successful candidates.

         Under state law and the city charter, the selection for each individual vacancy must be made from among the top three highest-ranked candidates  without regard to race or politics. This important and time-honored law was designed to ensure selection of the most qualified and end the graft, favoritism and corruption of the political patronage system.  Under pressure from Kimber, other local black politicians as well as leaders of the “Firebirds” and other special interest groups dedicated to advancing blacks in the civil service, Mayor DeStefano and his staff went to great lengths to concoct an excuse to scuttle our promotions.  Their aim was to set aside and hold the vacancies open for certain unsuccessful black applicants until the City could devise another process aimed at granting  minorities the promotions. 

The Mayor and his staff lobbied New Haven’s Civil Service Board to throw out the eligibility list.  We later learned that if the Board members (all political appointees of the Mayor) refused to do so, Mayor DeStefano was prepared to override the Board’s vote and issue an executive order prohibiting the Fire Department from filling the vacancies.  In the end, the Board did DeStefano’s bidding and refused to promote us.  Later, DeStefano appeared at a NAACP convention and took credit for this result, to the applause of those in attendance. 

Mayor DeStefano has a reputation for pandering to racial and ethnic voting blocs.  He has been accused repeatedly (and sued multiple times) for violating the law in order to politicize the civil service and award jobs based on race and political cronyism.  One state court judge accused his administration of “blatant lawlessness” in subverting the civil service laws.  The DeStefano administration lost every case against it in the state courts in which city officials were alleged to have manipulated the outcome of civil service exams for improper reasons of race preferences.  They unsuccessfully appealed adverse rulings by state judges to the Connecticut Supreme Court, which unanimously rejected their excuses and ordered the city to comply strictly with the civil service laws and regulations.

When DeStefano pulled his political stunts again with our promotions, we sued in federal court, alleging race discrimination in violation of our Title VII and federal constitutional rights.  City officials admitted in court that our race led them to deny us the promotions.  No one could, and no one did, deny that these tests were fair and job-related.  Notwithstanding these uncontested facts, a federal judge dismissed our case.


THE LOWER FEDERAL COURT PROCEEDINGS

After protracted proceedings in the New Haven District Court lasting some two years, the case was ripe for decision after both sides moved for summary judgment.  At this end stage of proceedings, final oral argument on the case was scheduled before U.S. District Judge Mark R. Kravitz, the assigned presiding judge who managed our case and issued all orders on it throughout.

On the eve of the oral argument, we were notified that it was cancelled and that another judge would be taking over the case.  We were afforded no explanation for this.  There were additional delays due to the judge change.

Judge Janet Bond Arterton took control of the case, and in late September of 2006, threw it out.  Granting summary judgment to the city and its officials, Judge Arterton essentially held that:   1) Any civil service test that does not produce equal racial results is flawed;  2) It did not matter that the tests were job-related and fair;  3) It did not matter that those minority candidates who failed or fared poorly on the test and complained the loudest were the very ones, according to uncontested testimony, who invested the least in studying, did not give up their second jobs during the study period, and turned down opportunities to participate in study groups and tutoring sessions at the firehouses offered by volunteer officers, with some not even bothering to get the books on the syllabi;  4) It was irrelevant that these individuals were in fact unqualified for the jobs and deemed incompetent not only by the testing experts but by a multi-racial group of high-ranking oral assessors dominated by minority fire officials; 5) it is irrelevant that command vacancies would be left unfilled at risk to the safety of firefighters and the public;  and 6) most remarkably, the mayor could deny us our promotions in the interest of racial “diversity” and for “political reasons”  - that is, to avoid angering his African-American constituency and powerful minority political activists. 

Judge Arterton spoke approvingly of the mayor’s desire to avoid the “political consequences” of proceeding with promotions based on admittedly legitimate test results.  The bottom line is that “diversity” and race politics - not qualifications, competence, and firefighter and public safety – were the main concerns of the district court in interpreting Title VII and the U.S. Constitution.  The district court thus allowed command vacancies in a critical first responder agency on the East Coast corridor to remain unfilled while the city “explores” for alternatives and “conducts studies” to try to figure out how to promote the very people who failed a legitimate competency exam.

        We thought such a radical decision would surely be overturned on appeal.  But a three-judge panel of the Second Circuit Court of Appeals affirmed the dismissal of our case, holding that mere “disparate impact” of job criteria on minorities is enough to justify a public employer’s denying the jobs to the successful qualified candidates because they are of the wrong race (or ethnicity as was the case with the successful Hispanics who were denied as well).  Two of those judges (Hons. Rosemary Pooler and Sonia Sotomayor) heard argument on the case in New York City on December 10, 2007.  We all attended and based on the questions and remarks from the judges, we knew then and there that we would lose again.  

Despite thousands of pages of uncontested evidence, oversized legal briefs, a one-hour oral argument (unusual in the appeals court), a supporting amicus legal brief addressing safety issues from a firefighter organization, and another amicus brief from a prestigious public interest law organization (The Washington D.C.-based Center for Individual Rights) the judges affirmed Judge Arterton’s ruling by  a brief one-paragraph “summary order” that gives the reader no clue as to what this case was about, much less that it was the most significant race case to come before that court in decades. The Second Circuit’s dispositions of immigration and asylum appeals, pro se appeals and frivolous prisoner complaints often get more words than the ruling it issued in our case.  Disgusted, and against the odds, we petitioned the U.S. Supreme Court to review our case, notwithstanding the manner in which the Second Circuit panel disposed of our appeal, which made the odds against us even greater.


OTHER SECOND CIRCUIT COURT OF APPEALS JUDGES STEP FORWARD

          In June, 2008, while our petition to the U.S. Supreme Court was pending, we received word that other judges on the Second Circuit Court of Appeals, acting on their own, tried to force a full court re-hearing of this case after finding the three-judge panel’s summary action objectionable.  A vote took place among all the active judges of the court on whether to rehear this case “en banc”.  By a narrow vote of 7-6, en banc rehearing was denied.  The original three judges who disposed of our appeal were among the 7 judges to vote “no” on rehearing this case en banc.  The six judges who voted to rehear the case, including the chief judge of that court, issued dissenting opinions that both criticized the panel’s handling of this case and expressed the hope that the U.S. Supreme Court grants our petition and takes our case.

Judge Jose A. Cabranes’s opinion on behalf of all six dissenting judges is HERE.  Chief Judge Dennis Jacobs’s separate dissenting opinion is HERE.  After the 7-6 vote, the original three-judge panel converted its summary order to a “per curiam opinion” – one that is now officially published and which has precedential force throughout the Second Circuit.  But there was no change in the text of this “opinion” from the summary order.  Rather, the original panel just cut and pasted its summary order under the title of “per curiam opinion."  The panel not only just adopted Judge Arterton’s ruling in whole but acted to make that district court opinion the law of the circuit, imperiling every civil service exam in every city and town in New York State, Connecticut and Vermont.

        The Sixth Circuit Court of Appeals recently chose to follow the Second Circuit’s Ricci decision and issued an identical holding in a case coming out of Memphis, Tennessee.  Thus, the Ricci holding is already doing damage beyond our circuit’s borders.   It was important that we do everything we can to challenge this decision, not just for ourselves but for brother firefighters around the nation.  Our safety, public safety, as well as basic notions of fairness and equal civil rights require it.  The job of firefighter is the most dangerous job one can have and even one firefighter death caused by political correctness is one too many.


SELECTED PRESS REPORTS ON THE CASE

Stuart Taylor: Firefighters Case: What Really Happened - National Journal - June 13, 2009

John Yoo: A missed opportunity to put skills above race - The Philadelphia Enquirer - March 1, 2009

National Journal Magazine, "New Haven's Injustice Shouldn't Disappear, December 13, 2008

The Supreme Court's 1-2 punch - World Net Daily - March 4, 2009

The Bulletin Philadelphia's Family Newspaper Op-Ed March 11, 2009

Fire Engineering Magazine Video With Chief Bobby Halton # 1

Fire Engineering Magazine Video With Chief Bobby Halton #2

"Supreme Court to Hear Firefighters' Bias Case" - New Haven Register, January 9, 2009

“FEDERAL JURISTS URGE HIGH COURT TO HEAR CASE” – New Haven Register, June 16, 2008

"CITY NETS FREE LEGAL WORK" New Haven Register, September 8, 2008

"LAWYERS LINE UP...", New Haven Register, November 11, 2008

"HIGH COURT HOLDS OFF ON BIAS CASE", New Haven Register, December 16, 2008

THE NATIONAL REVIEW Bench Memos, December 10, 2008

THE NATIONAL REVIEW Bench Memos, June 16, 2008

“NEW HAVEN FIREFIGHTERS’ CASE DRAWS NATIONAL INTEREST”, Connecticut Law Tribune, November 17, 2008.

"Committee for Justice" Blog Opinion December 12, 2008

 

THE FIREFIGHTERS’ SUPREME COURT FILINGS AND BRIEFS

Our Reply Brief Filed at The United States Supreme Court

Our Brief Filed at the United States Supreme Court

Original Petition for a Writ of Certiorari

Second Petition for a Writ of Certiorari

Petition-Stage Reply Brief to the United States Supreme Court

Our Supplemental Brief to the Supreme Court (Addressing En Banc Development)

Selected Amicus Curiae Filed in Support of the

New Haven 20

Brief Filed By the Bridgeport Firefighters for Merit Employment

Brief Filed By the Philadelphia Chapter of the Concerned American Fire Fighters Association

Brief Filed By the National Association of Police Organizations

SECOND CIRCUIT DISSENTING OPINIONS

Dissent of Honorable Jose A. Cabranes speaking for all six dissenting judges including the Chief Judge

Dissent of Honorable Dennis Jacobs Chief Judge