Saturday, July 30, 2011

BRA Has Its Costs

Black Run America had another defeat today. Ostensibly $2 million, but it gets worse for BRA. An attorney gets $3 million for fighting BRA. (h/t How Appealing)

New Haven has agreed to pay $2 million plus enhanced pension benefits to the white firefighters who provoked a re-examination of affirmative action in 2009 when the U.S. Supreme Court upheld their reverse discrimination lawsuit against the city.

The 20 firefighters, one of whom is Hispanic, sued in 2004 after the city refused to honor the results of a civil service examination in which only white candidates scored high enough for promotion to captain and lieutenant. By scrapping the test, the city denied promotion to more than half of the 20 men.

In its 5-4 decision, the Supreme Court criticized New Haven for using "raw, racial statistics" to invalidate a promotional examination, but stopped short of ordering broad changes to race-and-hiring laws sought by the firefighters and their supporters around the country.

New Haven reinstated the examination results and promoted 14 of the 20 firefighters within months of the decision. On Thursday, the city said that it had resolved the only issues remaining in the case — the size of damage awards to the firefighters and the cost of their lawsuit.

The firefighters, depending on factors such as rank and seniority, will receive cash judgements from the city ranging from about $27,000 to $135,000.

In addition, all but two of the firefighters will have their retirement packages calculated in a way that could add from $100,000 to $300,000 to their pensions, said a lawyer familiar with details of the agreement.

And truer words were never spoken, laying down the gauntlet to BRA:

Frank Ricci, the lead plaintiff in the case, said that the firefighters were "elated." He noted that their case also has had an impact in other cities that were "put on notice that when it comes to public safety, merit must win out."

Of course, merit should "win out" in every profession, not just public safety positions.

"In a public safety job where you can go to work and not come home, merit has to be the overriding factor," Ricci said.

But more importantly the white firefighters' attorney gets a $3 million payday:

Karen Lee Torre, the Branford lawyer who represented the firefighters, will receive $3 million for costs and fees, according to the settlement papers filed in court.

"Nothing is going to be more important than the Supreme Court opinion," Torre said. "But the terms of the offers of judgment were attractive to us and we accepted them. The city finally had to admit what it did."

This is a signal to all attorneys in a profession beset by recession, layoffs, and low pay. Fighting affirmative action pays, it pays big.

New Haven Mayor John DeStefano, the named defendant in the suit, sounded happy to put the case behind him.

"In addition to recognizing that this resolution allows the city to move forward, I want to acknowledge the work of the New Haven firefighters who never allowed this debate to affect their performance on the fire grounds, or, with one another," DeStefano said. "Their service to the people of New Haven and to their units has been and remains exemplary."

Victor Bolden, New Haven's lawyer, said the city's civil service procedures now comply with the law.

"The city has a new legal standard to follow, and the intention of the city of New Haven is to follow it," Bolden said.

The firefighters sued in 2004, a year after New Haven scrapped the promotion exam.

The city gave the test to 118 candidates, 27 of whom were black. None of the black candidates scored high enough to qualify for the 15 positions that were immediately available. All 20 of the plaintiffs qualified. After a series of raucous meetings, the city civil service board decided to scrap the test results and promote no one.

The firefighters' suit turned on an apparent contradiction in Title VII of the Civil Rights Act of 1964. The law prohibits race-based decisions in hiring and promotion. But it also requires employers to scrap tests that produce "disparate" results among test takers of different races — unless the employer can prove that the test is job-related, necessary and that no less discriminatory alternatives exist.

The Supreme Court ruled that the firefighters who were denied promotion were victims of illegal racial discrimination. But, the 5-4 decision, which Justice Anthony M. Kennedy wrote for the majority, left intact the portion of the law that New Haven used to invalidate the examination after no black applicants scored high enough to qualify for promotion.

Analysts were concerned that the decision would raise the standard that employers must meet in the future to reject test results in similar circumstances, without providing specific guidance about how to do it.

Ricci, the lead plaintiff, resigned from a second job and paid $1,000 for study aids to prepare for the test. His performance qualified him for promotion before the city discarded the results.

Also on notice are insurance companies, who in this case paid out $750,000 in legal bills for Providence. That will force insurance companies to reconsider their support for BRA and affirmative action.

NEW HAVEN – The 20 firefighters who took their discrimination suit to the U.S. Supreme Court — and won — were awarded $2 million in damages from a settlement reached this week.

The city of New Haven will pay the firefighters $2 million, and pay an additional $3 million for the men’s attorney fees. The settlement also awards the firefighters three years of pension credits.“We look forward to moving forward with the city of New Haven and putting this all behind us and getting back to the work of doing what we do protecting the citizens of this great city,” said fire Lt. Frank Ricci, lead plaintiff in the case. Ricci will get $125,519 from the settlement.He said the firefighters agreed to settle Wednesday.

The 20 firefighters — 19 white and one Hispanic — sued Mayor John DeStefano Jr. and other city officials in 2004 after the city threw out results of two promotional exams because few blacks earned high scores. At the time, the city argued it could face lawsuits from black firefighters under the federal Civil Rights Act.

The city’s decision to throw out the tests was upheld by the U.S. District Court and the Second Circuit Court of Appeals. But in 2009, a closely divided Supreme Court ruled against the city in favor of the firefighters. The decision made national headlines and touched off renewed debate about affirmative action.

The city ultimately certified results of the original exam and promoted 14 of the 20 plaintiffs. Now, the cash-strapped city is left with a hefty bill from the settlement and its own legal fees.A statement put out by the city Wednesday says the settlement allows the city to “avoid the cost and uncertainty of further litigation that had been scheduled to commence in Federal District Court later this summer.” The settlement award will be paid for from the city’s budgeted public liability accounts, $4 million that was set aside in the fund balance for this case and insurance proceeds. The city’s own legal fees cost about $750,000 and were paid for out of the insurance fund.

Corporation Counsel Victor Bolden said the city also received hundreds of thousands of dollars in pro-bono legal assistance on the case. Richard Roberts of the Cheshire firm Nuzzo and Roberts was the trial counsel for the city on the case.

City Hall released a statement from DeStefano, who is out of town: “In addition to recognizing that this resolution allows the city to move forward, I want to acknowledge the work of the New Haven firefighters who never allowed this debate to affect their performance on the fire grounds, or, with one another. Their service to the people of New Haven and to their units has been and remains, exemplary.”

Karen Torre, the lawyer for the firefighters, could not immediately be reached for comment.

Ricci said firefighters have been through a great ordeal and are glad to put the matter behind them.“The reason for this lawsuit was to ensure that the leaders of the fire service were based on merit. And the public, when they call 911, they don’t care if somebody is white, black or Hispanic. Their only concern is that the person is competent, respectful and timely,” he said.

The city made individual settlement offers for the 20 firefighters. Bolden said the city offered an amount it believed would be fair and acceptable to the plaintiffs. The $2 million award includes about $700,000 in back pay and interest for 14 of 20 firefighters who were ultimately promoted. For the four firefighters who passed the exam but were not promoted, the city offered $50,000. And for the two firefighters who did not pass the exam, but were included in the lawsuit, the city offered $25,000.

All 20 men accepted the awards, which also compensated them for “intentional infliction of emotional distress,” according to settlement documents. The payments will be made over two years, with 40 percent paid this year and 60 percent next year. The three-year pension credit was offered to 18 of the men and would be applied to their years of service for pension calculation purposes. Bolden said the city will end up paying an additional $60,000 to $80,000 to its $22 million annual pension contribution for police and fire.

The lawsuit was the result of the city’s decision in 2004 not to certify promotional exam results for captain and lieutenant positions. According to the city, only about two of the 50 minority candidates who took the test in 2003 would have qualified for a promotion. No blacks were included in that list. At the time, the Civil Service Board expressed concern the black candidates would have sued the city under Title VII of the Civil Rights Act of 1964.

The costs of BRA are now real. Bankrupt cities and their insurance carriers are now on notice that affirmative action is not cost free. And all the machinations and pro-bono work of a cadre of communist lawyers did not help them defeat one single attorney. That was millions wasted by the Reds that hopefully will be discouraging them from wasting defending the next anti-affirmative action case that comes forward.

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