by Art Gutman Ph.D., Professor, Florida Institute of Technology
Michael Briscoe was one of the black applicants for promotion to lieutenant in the Supreme Court’s ruling in Ricci v. DeStefano (2009). On remand from the Supreme Court, District Court Judge Janet Bond Arteton certified the promotions to lieutenant and captain based on the 2003 exams central to the Ricci case. Briscoe then lodged his adverse impact claims on the heels of the certifications, and these complaints were dismissed on April 28, 2010 by District Court Judge Charles S. Haight, Jr. Part of Briscoe’s complaint was that testing was scheduled for April 30 and May 1, 2010 for the administrative position of Director of Training for candidates holding the rank of lieutenant or captain. Briscoe sought to sit for this exam on the theory that he would win his adverse impact claim. Additionally, two of the promoted firefighters in Ricci intervened against Briscoe on grounds that any relief granted to him would adversely impact themselves.
Briscoe challenged the 60-40 weighting for written versus oral tests. He was the top scorer among 77 applicants for lieutenant on the oral exam. However, he ranked 24th overall because of his poor performance on the written test. Briscoe claimed that a 70-30 oral versus written weighting “would be equally good or better at identifying the best-qualified candidates for promotion, and would have less disparate impact on racial minorities.”
In a nutshell, Judge Haight ruled that the Supreme Court’s ruling in Ricci precluded Briscoe’s claims. Recall that the main ruling in Ricci was that New Haven lacked a strong basis in evidence for discarding promotion exams. Interestingly, Judge Haight ruled that New Haven was protected for making the promotions ordered by Judge Arteton because it now had a strong basis in evidence for believing it would lose a disparate treatment claim if it did not follow the judge’s order.
One last thing --- Judge Haight did not discard the weighting issue. Rather, he emphasized that the proper times for Briscoe to challenge the weighting were in 2003, when the exams were administered, and in 2004, when the Ricci plaintiffs sued. Indeed, he stressed the narrowness of his ruling as follows:
It is important to emphasize the narrow boundaries of this opinion. I am concerned only with the effect of Ricci upon Briscoe's disparate-impact challenge to the 2003 examinations. That limited reach is dictated by the fact that the complaints of the Ricci plaintiffs and Briscoe relate solely to the 2003 examinations. Nothing in this opinion would foreclose or diminish the rights of Briscoe or any other firefighter to challenge a subsequent NHFD promotional examination on the same grounds that Briscoe seeks to assert in this case with respect to the 2003 examinations.
In short, the issue of alternative weightings with less adverse impact is still fair game.