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. 

2009 will not go down as the most exciting year for employment law. There were a number of "honorable mentions" for items that have had an impact, but nothing — in my view really stands out.

I suppose for Connecticut, the Ricci v. DeStefano case has to be put up at the top of the list of noteworthy developments. After all, it’s rare that a case from the Constitution State gets heard in front of the nation’s highest court and even rarer that it is an employment case.

But six months after the case was decided, I still have a hard time seeing any wide-ranging impacts from the decision for private employers.  And frankly, I still think the case only drew the attention it did because of the nomination of Sonia Sotomayor (who was involved in the decision at the Second Circuit stage) to the U.S. Supreme Court.

As for the some other Supreme Court cases, the one that could stand out is Gross v. FBL Financial Service case — which addresses the burden of proof in age discrimination cases — have yet to explored fully and may be overturned by legislation in any event.  

I would argue that the biggest development for employment law isn’t a case or a new law, but the incorporation and adoption of social media — both in policy and usage.  It seems like every week or two, I’ve been asked to give a presentation or comment on an article on the topic.  In fact, a webinar I did earlier this year drew the highest attendance for any of our webinars.

But because social media wasn’t developed in 2009 and is really impacting life in so many different ways, I’m taking it out of the running for the biggest employment law story for 2009.

Other potential nominees for important employment law developments are:

  • The Lilly Ledbetter Fair Pay Act — But as I suggested last January, the impact of this new legislation has been limited. 
  • The FMLA amended regulations – Again, this had the potential to shake things up, but considering Connecticut has its own set of rules that haven’t been amended, all its done is create more headaches for employers
  • Employee Free Choice Act – This bill — which would get rid of some secret ballot union elections and institute mandatory arbitration for some initial collective bargaining agreements — has been on the table for much of 2009. If passed, it could have a large impact on employers in Connecticut and nation-wide. But so far, the votes haven’t been there.
  • The COBRA subsidy (and extension) – This was more of an administrative burden than anything else and while you could argue with the means that the government used, the intent — making sure that people did not lose their health insurance — was certainly laudable.  And with new health care legislation now looking like a reality, we’ll see whether revisions to COBRA are further discussed.   
  • GINA – The effective date for GINA was mid November 2009 and the government started to release new regulations enforcing GINA (which prohibits genetic discrimination in employmen).  But (yawn) here in Connecticut we’ve had that type of law for years. No big deal or change.  

(The Delaware Employment Law Blog shares its top 10 list, and the Ohio Employer’s Law Blog is doing the same for other issues.) 

What does 2010 hold in store? I’ll save that for another day….

For those who can’t get enough of the Ricci v. DeStefano matter — you know, the Supreme Court case involving a group of 20 firefighters from New Haven — the Connecticut Law Tribune this week offers up a profile of the attorney for the plaintiffs, Karen Lee Torre. 

But those hoping for a second act from her may have to wait a little longer as she has cut back on her legal work:

Following the Ricci decision, Torre says she has received numerous job offers asking her to become a lobbyist or a spokesperson for special interest groups. While she has turned down those offers, she has agreed to be a consultant on about a half-dozen cases around the country involving claims of reverse discrimination.

At the same time, litigating Ricci has worn down Torre to the point that she is going into semi-retirement for the time being.

“Ricci was a fabulous experience and my most personally rewarding experience,” she said. “But it made me want to leave the practice of law, and I don’t know what’s next.”

Those who know Torre either love or hate her. There is no in-between. An exchange last year between Torre and the CHRO led to heated exchange of words and is certainly an example of the love/hate relationship she has with some. (And heaven knows that her views on the ABA are far from enlightened). 

But she has done what many attorneys dream of doing: Winning a case before the U.S. Supreme Court on behalf of clients that she believes in.

And even she realizes that nothing else she does in the legal profession may match that. 

“This year has been the most incredible year of my career,” Torre said last week. “Nothing in the past compares to it and nothing in the future will compare to it.”


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. 

Yesterday, a group of black firefighters filed a motion to intervene in the Ricci v. DeStefano case claiming their rights will be "irrevocably impaired " if they aren’t allowed to join in the case.  You can download the motion and the accompanying memorandum of law here

The motion was not unexpected though I’m not sure anyone expected it so soon.

Last Friday, for example, The New Haven Register reported on a new batch of discrimination claims filed at the EEOC on behalf of seven black firefighters who claimed that if the Ricci v. DeStefano lawsuit were to proceed with a trial and the test results certified, it would harm minorities in the job ranks. These firefighters are the ones that have now sought intervention. The black firefighters’ claims are separate and apart from another claim brought by firefighter Michael Briscoe, who is also challenging the decision

As I pointed out in my earlier post and in the article, these claims face a big hurdle to overcome in light of the Supreme Court’s language about how courts should dispose of such claims against New Haven if they were to be brought.  You can download one of the claims directly here.

To overcome the Supreme Court’s language, they claim that they are primarily claiming that they have been treated in a discriminatory fashion, and not merely impacted in a discriminatory way. They also claim that the Supreme Court’s language was merely dictum and not binding on future courts.

How the District Court treats this new filing will no doubt be the subject of lots of speculation in the upcoming days but it is clear that despite efforts by the Ricci parties to work towards a resolution, the case is far from being concluded in one form or another. 

In the meantime, the actual parties in the Ricci v. DeStefano case prepared proposed orders for the District Court to use to implement the decision of the Supreme Court.  You can download them here and here

The parties will now 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.  


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)

Another manic Monday. So it’s time to roll out another edition of quick hits where I highlight stories you might have missed over the last week or two.



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.