New Haven 20 - Ricci's Reply

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ------------------------------------------------------------x FRANK RICCI, ET AL. : plaintiffs : : v. : : JOHN DESTEFANO, JR, ET AL. : defendants : -----------------------------------------------------------x

NO: 3:04-CV-1109 (JBA)

November 20, 2009

DEFENDANT’S RESPONSE TO PLAINTIFFS’ REQUEST FOR STATUS CONFERENCE On November 13, 2009, both parties submitted proposed orders regarding the promotion of certain plaintiffs. On November 17, 2009, the plaintiffs requested a status conference regarding the proposed orders. The City of New Haven (“the City”) hereby responds to that request. The City is willing to attend another status conference if the Court so orders, to the extent one is necessary. However, there is no confusion as to how many or which plaintiffs will be promoted pursuant to the City’s proposed order. In its November 6th letter to plaintiff’s counsel, the City listed those 14 plaintiffs who would have been promoted within the two-year life of the eligible lists and thus will be promoted, once the eligible lists are certified.

Eligible lists, displaying the names and ranks of all passing candidates on these exams, have not been prepared by the City. In fact, the City has never publicly released the identities or ranks of the passing candidates. While the parties to the litigation have information regarding candidates’ scores and ranks, this information has been sealed from the public out of a concern for the interests of the non-party candidates. Consistent with the Supreme Court’s opinion in this case, it is important that the eligible lists be prepared and certified in order to avoid confusion, remove any notion of secrecy and ensure that only those who would have been promoted based on their performance on the 2003 exams have an opportunity for promotion now. See Ricci v. DeStefano, et al., --- U.S. ---, 129 S.Ct. 2658, 2681 (2009) (“If after it certifies the test results the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparateimpact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”) (emphasis added). Once the lists are certified, the Board of Fire Commissioners would then promote, in rank order, those plaintiffs who would have been promoted during the two-year life of the lists. Additionally, the City would have the discretion to promote non-plaintiffs, but only those non-plaintiffs who would have been promoted if the City had certified the lists in 2004.

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In short, the City’s proposed order ensures that what the Supreme Court considered to violate Title VII of the Civil Rights of 1964 -- the City’s failure to certify the results of the 2003 exams and promote consistent with those results -- is remedied and nothing more.

THE DEFENDANT CITY OF NEW HAVEN

By

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/s/ Richard A. Roberts (ct 07665) Stacey L. Pitcher (ct27111) Todd J. Richardson (ct26699) NUZZO & ROBERTS, L.L.C. One Town Center P.O. Box 747 Cheshire, Connecticut 06410 Tel: (203) 250-2000 Fax: (203) 250-3131 [email protected] [email protected] [email protected]

CERTIFICATION This is to certify that on November 20, 2009, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court(s) electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF system. Karen Lee Torre, Esq. Norman A. Pattis, Esq. Law Offices of Norm Pattis, LLC 129 Church Street, Suite 405 New Haven, CT 06510 Victor A. Bolden, Esq. Kathleen M. Foster, Esq. City of New Haven 165 Church Street, 4th Floor New Haven, CT 06510 W. Martyn Philpot, Jr. Law Office of W. Martyn Philpot 409 Orange Street New Haven, CT 06511 Christy B. Bishop, Esq. Dennis R. Thompson, Esq. Thompson & Bishop 2719 Manchester Road Akron, OH 44319

/s/ Richard A. Roberts

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