The Second Circuit today reinstated claims brought by a black firefighter against the City of New Haven alleging that he was unfairly denied promotion to the position of lieutenant because of the city’s scoring of a 2003 promotional exam.  (I covered the original lawsuit back in 2009 here.)

The decision in Briscoe v. City of New Haven (download here) today found that the Supreme Court’s ruling in Ricci v. DeStefano — which seemed to predict (and preclude) a lawsuit like this — did not preclude this lawsuit.

As you may recall, the Ricci decision ordered New Haven to certify the results of a test; that test was not used for promotions resulting in the lawsuit by a group of white firefighters who claimed that the city discriminated against them when it decided not to use the test.

Now the test — which allegedly showed a disparate impact against black testtakers — is being challenged by a black firefighter. The Supreme Court suggested that such a lawsuit should fail:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. 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 disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

But the Second Circuit said that this language was not controlling and was inconsistent with the rest of the Supreme Court’s findings regarding distinctions between disparate impact and disparate treatment.  In essence, the court said that the City of New Haven ought to have predicted this even before the Supreme Court decided the issue.

We are sympathetic to the effect that this outcome has on the city, which has duly certified the test as ordered by the Supreme Court but now must defend a disparate-impact suit. The City of Birmingham faced the same issue in Martin. Any employer that intentionally discriminates–thinking there is a strong basis in evidence of disparate impact liability–will face the same issue if it loses a disparate impact suit.

The solutions already exist. First, an employer can seek to join all interested parties as required parties. See Fed. R. Civ. P. 19. The interested parties here were readily identifiable: The city could have joined all test takers prior to the district court’s original decision. If Briscoe had been a party, the Supreme Court’s decision would have precluded this suit. Second, an employer can use the expedient provided by Congress, 42 U.S.C. § 2000e-2(n). The city could have moved, prior to the district court’s original ruling, for compliance with the notice and opportunity-to-object requirements of § 2000e-2(n), which would have permitted the litigated judgment to have preclusive effect even over nonparties.

Expect to hear much more about this decision in the upcoming days as it leads to the practical result that both the white AND black firefighters have filed suit based on the same test.

For other employers, the takeaway from this case is that nothing is as simple as it might first appear. When faced with disparate impact lawsuits, think about all the parties who might be affected by the decision and consider bringing them in.   It is truly hard to fault the City of New Haven here; the Ricci case took on a life of its own. But future employers are now on notice that you may not have to worry about the first lawsuit; its the second one that you weren’t expecting that causes the most headaches.

Briscoe v. City of New Haven

News outlets this morning reported that the plaintiffs (a group of firefighters in New Haven) in the Ricci v. DeStefano reverse discrimination case were awarded damages of about $2 million (plus attorneys fees of $3 million).

What the reports don’t really get into, however, is exactly how that has come about. Turns out that the plaintiffs accepted offers of judgment from the city of New Haven.

You can download all of these papers in various filings here, here, here, here, here, here, here, here, here, here, here, here,  and here. You can download the omnibus paper here.

Once the court acts on these offers of judgment, the case will draw to a quick close after many years of litigation.

The Ricci v. DeStefano case (now on remand from the U.S. Supreme Court) has vanished from the headlines, but the case is still kicking around as the courts and the parties attempt to fashion a remedy that fits with the judgment in favor of the plaintiffs.

For some time now, however, the plaintiffs have made some oral arguments at various proceedings that the United States District Court Judge Janet Arterton should recuse herself from the case.  Those accusations rose to a new level on Tuesday when they filed a lengthy motion to that effect.

You can download the motion here, and the accompanying memorandum of law here

The judge has steadfastly denied thus far that she has done anything improper whatsoever in transcripts to various proceedings.   

I would be remiss if I did not note that these types of motions should be viewed skeptically for a number of reasons, most particularly that they don’t claim to present a balanced picture.  The judge is also limited in how she can respond publicly, and thus, there is much more to these issues than is being discussed.

But ask yourself when you read the motions:  Are the plaintiffs justified in making claims here? Can a fear that the judge will be impartial be enough no matter how unreasonable that fear is? Is a judge barred from having public outreach on a case just because it is high-profile? And if a judge is later reversed by the U.S. Supreme Court, does that "taint" the original judge from hearing the case on remand? 

I’m sure a lot of people will answer "no" to these questions.   Take another example, the plaintiffs suggest that there was something improper about the judge attending oral argument in the case before the Supreme Court saying it was unusual. But even if that’s the case, the question arises: What is wrong with that behavior? How does that mean that the judge will be impartial?

There is no timeframe yet on when the judge will rule on the recusal motion and the City of New Haven has 21 days to respond. 

From time to time, employers are faced with a quandary: When an employee has not been following the rules, do I fire the employee straight up? Or do I give the employee an opportunity to resign first, and potentially sign a settlement agreement?

Why might an employer do that? Well, it allows the employee to save face and to say, honestly, to a potential employer that he/she left, rather than fired.  That also allows the employee to find new work quicker than having to explain that he/she was fired for violating company rules or at least suspected of such violations.

But suppose an employer did so and then asked the employee to sign a release of claims (and potentially even offered some money to settle any potential claims the employee may have). Is that agreement — which is under the veil that the employee will be fired if he/she doesn’t sign — signed under "undue influence" and thus void?

The Connecticut Appellate Court, in Gengaro v. City of New Haven (officially released on December 29, 2009), said no.  The court held that even though the employee may have had financial or medical issues, the "pressure" to settle did not rise to the level of "undue influence."

The Connecticut Business Litigation Blog discusses the legal specifics of the element in good detail this morning so I won’t repeat it here.  If you’re interested in the background of "undue influence", it’s worth a look. 

Takeaway for Employers

The case is good reminder to employers of the old expression, "It ain’t over, ’til its over".  Even after an agreement is signed, there is still a risk of attack.

So what’s an employer to do?

1) Draft the agreement in plain language that spells out exactly what the employee is agreeing to.

2) Provide the employee with a reasonable amount of time to consider it.

3) If there are age discrimination claims that are being waived, don’t forget about the obligations of the Older Workers Benefit Protection Act. 

4) Consider adding a specific reference in the agreement that the employee understands the provisions of the agreement and represents that he/she is signing it off their own free will.  

But most of all, have legal counsel help draft and review it.  Settlement agreements are an opportunity to resolve a matter once and for all; you don’t want legal loopholes or drafting errors to allow a matter to be reopened that should otherwise be closed.

So, while everyone has been paying attention to the Ricci v. DeStefano case, which dealt with a group of white firefighters who claim that they should’ve been promoted, another case involving New Haven firefighters has been making its way through the state court system.

(As an aside, are there any firefighters in New Haven who haven’t brought an employment discrimination claim against the city?)

Today, the Connecticut Supreme Court reversed a jury verdict which found that, by promoting other firefighters through a practice called ‘‘underfilling,’’ the City of New Haven (and others) had discriminated against several African-American firefighters on the basis of race in violation of their right to equal protection under the fourteenth amendment to the United States constitution.

The case, Broadnax v. City of New Haven (download here), won’t be officially released until next week, but it dates back to some decisions made in the 1990s.  

Frankly, because the case is decided on equal protection grounds, it will be of little impact to private employers in the state. For government entities, though the case, delves into the practice of "underfilling" and says that, at least in this situation, it was handled properly.

What is "underfilling"? Don’t bother looking it up in Google. But the Connecticut Supreme Court provides its definition:

Underfilling, as the term is used in the present case, occurs when the fire department promotes an individual to a particular position, and the city’s budget has not allocated funds to pay the salary of that position, whereby funds for a vacant higher ranking position are used to pay for the newly appointed lower ranking position. For example, if ten individuals are promoted to lieutenant, and only five vacancies exist in the budget for the position of lieutenant, but several vacancies exist in a higher ranking position, such as captain or battalion chief, the first five newly appointed lieutenants are promoted and paid with budgeted lieutenant funds, but the next five newly appointed underfilled lieutenants are paid with funds reserved
for the vacant captain or battalion chief positions. Thus, when an individual employed at a lower ranking position is paid from funds reserved for a higher ranking position, that individual is considered to have been underfilled.’

Got that?

In any event, the Court here says New Haven’s practices were not discriminatory and that the evidence presented by the firefighters fell far short of establishing their case. 

For New Haven, the case will surely bring a sigh of relief that it can close yet another case involving firefighters in the city. But don’t expect that we’ve heard the last of a group of firefighters. Yet another group of firefighters have been requesting judicial relief as well lately.

It was never really a question of if, but when.

And yesterday, the United States District Court in Connecticut made final what had long been anticipated in the Ricci v. DeStefano case — the promotions of various firefighters to the positions of Lieutenant and Captain.  You can download the order here.

In doing so, the Court also ordered the City to certify the results of the promotional exam. Specifically:

The New Haven Civil Service Board shall certify the results of the 2003 promotional examinations for the positions of Lieutenant and Captain in the New Haven Fire Department, and shall certify the promotional lists for each position derived from these examination results.

The New Haven Independent has a full report on the order as well as feedback from each of the parties to the lawsuit.  The New Haven Register’s report is here. 

Earlier this month, a group of black firefighters moved to intervene in the lawsuit. The court has yet to rule on that motion, but the court’s entry of judgment certainly indicates that the judge did not view that motion as warranting any delay in the proceedings.

As noted before, the parties will still brief two additional issues for the court’s review: (a) the scope and nature of damages to which Plaintiffs are entitled under Title VII, and (b) whether any counts remain for liability adjudication.  The briefing of these issues will be completed in early January 2010. 

My thanks to the Human Resource Association of Greater New Haven for the invitation to speak to that group last week on the topic of social media and employment law.  HRAGNH is an affiliate of SHRM and with nearly 60 attendees, we had a packed house for the event.

When I’ve given such talks in the past, I’ve always been a little disappointed that more people aren’t using social networking tools for their job searches or for recruiting talent.

But I had no such disappointment here — I’d estimate that about 90 percent of the crowd was already using LinkedIn and Facebook for business or personal use.  (Twitter trailed behind considerably and just one brave soul was using Google Wave). 

In fact, in my conversations with attendees, I was struck by the consistent two-fold message that recruiters and human resources professionals conveyed about social networking sites.

First, if you’re a job seeker and aren’t on LinkedIn, you might as well be invisible because you aren’t going to pop up when companies are looking for candidates.

And for employers, if you don’t have an active online social media presence and aren’t using LinkedIn to find candidates, you might as well be invisible because you don’t exist to many qualified job seekers who are looking for companies that understand technology and are utilizing it to gain a competitive advantage. And you aren’t going to be finding talent that can help your company.  

Several attendees were quick to note that some companies still needed some convincing about the utility of using social media for human resources purposes.  For example, many of them are fearful of the use of LinkedIn Recommendations. 

In tomorrow’s post, I’ll discuss the use of LinkedIn recommendations further and take a fresh look at the subject that I covered over the summer

in the meantime, the informal survey of HRA members shows that social networking has not only made inroads, but has definitely moved towards the mainstream.

 

Well, that didn’t take too long.

Just a few months after the U.S. Supreme Court’s ruling in Ricci v. DeStefano, a black firefighter filed suit yesterday in U.S. District Court alleging that he was unfairly denied promotion to the position of lieutenant because of the city’s scoring of a 2003 promotional exam. 

You can download the complaint here

The case (H/T New Haven Independent) "alleges that the city weighs the oral and written components of the exam differently from how other cities do, in a way that has a disparate impact on African-Americans and resulted in Briscoe being denied promotion."

A lawsuit like this was certainly expected at some point or another.  It was just a question of when. The larger question, however, is what will happen next. After all the Supreme Court, in its Ricci decision, suggested a suit like this might occur and offered a possible defense:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. 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 disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

This language suggests that the City may indeed have a fair strong defense to this lawsuit but still, it will no doubt be litigating it for some time to come.  There will also be issues of statutes of limitations that may also pop up.

Although the spotlight has turned away from the Ricci case after Justice Sotomayor’s confirmation, this new lawsuit (and potentially others coming) signal a continuation of a drama that has yet to have its final act written.

(Further H/T CT News Junkie)

CORRECTED LINK

Over 100 people packed the Grand Courtroom of the Quinnipiac University School of Law last night to hear a panel presentation and discussion on the Ricci v. DeStefano case decided earlier this year by the United States Supreme Court.

The event, sponsored, in part by the Young Lawyers Section of the Connecticut Bar Association, provided some useful nuggets for practitioners and employers on the significance of the decision.

Attorney Karen Lee Torre (who represents the group of firefighters challenging the city’s decision) and New Haven Corporation Counsel Victor Bolden (who represents the City of New Haven — though he has only been in that position for seven months) both talked about what they thought the Ricci case would mean going forward and some of the history leading up to the decision as well. 

The discussion was taped for the CT-N network, which will replay it at times to be announced. 

I used Twitter last night to update people on the event and hit the highlights. Here are some of the tweets to give you a flavor:

  • At the Ricci v DeStefano seminar, with counsel for parties. Real good crowd–over 100. Getting set for CT-N taping
  • At seminar, Ricci atty says Alito’s opinion meant most to her. Lots behind the scenes ‘I can tell you it was dirty’
  • Ricci atty: This was really about ‘crude race mongering’
  • Ricci atty: There wasn’t a single precedent for the lower court’s decision or supporting New Haven’s rationale. SCOTUS was just applying law
  • Ricci atty: My prediction is private e’ers will use test results without much problem; public e’ers still subject to political pressures
  • New Haven Corp Counsel now speaking; emphasizes history of past discrimination & context of city’s decision in Ricci
  • New Haven atty: Court took disparate impact and treatment & pitted against each other; treatment trumps impact
  • New Haven atty: What does Ricci mean for e’ers? Fuzzier answer figuring out the ‘strong basis in evidence’ standard – what’s enough
  • New Haven atty: Ricci decision gives a way to think about the right way for promotions
  • Ricci atty: Court has told us what isn’t ‘strong basis in evidence’ (stray remarks, experts)–but still some murkiness on what is
  • Ricci atty predicts that the case will never be overturned and the Constitutional question (equal protection) will be decided in 5 yrs

Recent published reports stated that the parties are now working on a settlement to this matter.  But regardless, expect to hear more about this case for years to come as attorneys try to decipher the court’s latest pronouncements on race discrimination..

(My thanks to Attorney Mark Dumas who also used Twitter from the event. You can find Mark’s blog here.)

Credit the Connecticut Bar Association Young Lawyers Section with landing all the major players in the Ricci v. DeStefano case for a panel discussion on August 18, 2009 at Quinnipiac University School of Lawl

Full program details are available at the CBA’s website, including registration. 

The panel brings together both the attorney representing the firefighters (Karen Lee Torre) and the corporation counsel for the City of New Haven (Victor Bolden).  It starts at 5:30 p.m. and is open to the public.

The program is co-sponsored by several other bar associations, including the George Crawford Black Bar Association, Connecticut Hispanic Bar Association, Connecticut Asian Pacific American Bar Association and the South Asian Bar Association of Connecticut.

Sounds like an exciting free program. I hope to be able to make it and report back on it.