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Case 3:04-cv-01109-JBA

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

FRANK RICCI, et al, Plaintiffs, vs. CITY OF NEW HAVEN, et al, Defendants.

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CASE NO.: 3:04-CV-1109

JUDGE ARTERTON

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

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promotions. (Order, Doc. 175). Further, this Court stated that it is unknown whether any “other Plaintiffs are entitled to remedial promotions.” (Order, Doc. 175). Shortly after the initial fourteen promotions order by this Court, the City announced that it 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. Movants now file another motion to stay any further promotions from these eligibility lists until such time as the tests themselves can be subjected to thorough scrutiny. Throughout this case, neither the City nor the original plaintiffs ever disputed the validity of the promotional examinations used to determine the eligibility lists. Such is not the case as to the Movants, who assert that not only are the promotional examinations in issue not valid, but that those promotional examinations cannot ever be validated. Their position is supported by the Brief Amici Curiae filed in support of the City of New Haven at the United States Supreme Court by several Industrial Organizational psychologists. (Exhibit 2). Several Industrial Organizational psychologists also filed a related Brief Amici Curiae also questioning the validity of these tests and the use of job knowledge tests for promotional purposes in general. (Exhibit 3). 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 to date by the agreement of the existing parties, specifically the examinations being used as the basis 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 to address the validity of the actual examinations themselves made life much easier for all parties to this point. There was no need for testing expert witnesses (there were none), no need for

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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.

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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 Court’s 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. 3

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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 PlaintiffIntervenors. 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 34 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: 330-753-7082 e-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 Street New 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 for Intervenor/Plaintiffs

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