White Firefighters in NY Lose $1.6M Bias Award

     MANHATTAN (CN) – Buffalo has not been able to put out the controversy surrounding the hiring practices of its fire department for more than three decades, and a new ruling out of New York’s highest court allows the litigation to rage on.
     On Tuesday, the New York Court of Appeals forced 12 white firefighters passed over for promotions in Buffalo to go back to the drawing board in their eight-year quest for relief. Adam Perry, the city’s lead attorney in the litigation, confirmed in an email that the ruling voids the judgment against the city.
     Like several other U.S. cities, Buffalo has been criticized for allegedly discouraging minority application in their fire departments through racially biased entrance exams.
     In 1978, a federal judge issued a remedial order forcing Buffalo to change the test, atone for past discrimination and create a more diverse department.
     A group called Men of Color Helping All (MOCHA) claimed in a 1998 class action lawsuit, however, that Buffalo fell far short of that standard for decades longer.
     At the time of the litigation, Buffalo’s former human resources commissioner Leonard Matarese testified that he would let promotion-eligibility lists expire before their mandatory sunset period to rectify racial imbalance in the department.
     Several firefighters led by Eugene Margerum claimed in a lawsuit eight years ago that they never got their promotions because of that decision.
     The Supreme Court’s 2009 decision in Ricci v. DeStefano, a similar case brought by white firefighters New Haven, Conn., gave the Buffalo firefighters a boost.
     In a 5-to-4 decision, the high court majority wrote that an “employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
     An Erie County judge found on summary judgment Buffalo did not prove that it met this standard, and a bench trial ended with a damages award eclipsing $2.6 million.
     Though it shrank the award to $1.6 million, an intermediate appeals court otherwise affirmed the decision.
     But the Court of Appeals, New York’s highest judiciary authority, found Tuesday that the lower courts should have taken the question of Buffalo’s liability to trial.
     The 10-page majority opinion by Chief Judge Jonathan Lippman says Matarese, the Buffalo HR official, gave two conflicting statements about why he let the promotion lists elapse.
     Materese’s “vague” testimony about hoping to the “undo racial imbalance in the fire department” should not have been taken at “face value,” since he made that statement in the middle of litigation with MOCHA, Lippman wrote.
     Four years later, Matarese signed an affidavit stating that he let the promotion list elapse because Buffalo’s expert told him at the time that “there was a substantial risk that the MOCHA plaintiffs would prevail in federal court,” the opinion states.
     In a concurring opinion, Judge Susan Read called upon the New York Legislature to create a common standard for filing a notice of claim against governmental entities.
     Judge Jenny Rivera wrote in partial dissent that her colleagues should “reject” the Supreme Court’s Ricci precedent in anti-discrimination law in favor of New York’s standard.
     “New York state is a pioneer in addressing discrimination at the workplace,” Rivera wrote.
     She noted that New York passed the predecessor of its state human rights law, the Ives-Quinn Anti-Discrimination Law, in 1945, two decades before Title VII.
     The Supreme Court’s finding in Ricci is one of those “rare cases where federal interpretations of Title VII are at odds with, or undermine, the text or legislative goals of the Human Rights Law,” Rivera wrote.
     A lawyer for the firefighters has not returned a request for comment.

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