Firefighter ruling sets stage for damages
Judge says test policy was unfair to whites
October 29th, 2010
Thirteen white firefighters were treated unfairly when the City of Buffalo voided the promotional tests they passed because minorities did poorly on the exams, State Supreme Court Justice John A. Michalek ruled Friday.
His decision sets the stage for a future decision on financial damages and promotions for the firefighters, should an appeal be rejected.
The judge noted that the city has contended in a federal court case that all promotional tests are racially neutral and job-oriented. But in the state court case brought by the white firefighters, the city argued that the tests administered in 2005 and 2006 should be voided because of racial problems.
The ruling will be appealed "and we expect [Michalek] will be reversed," said Adam W. Perry, one of the city's private attorneys in the State Supreme Court suit.
But Andrew P. Fleming, the attorney for the white firefighters, said he doubts the appellate court will look kindly on a city appeal.
"I think [Michalek's] decision addresses entirely every factual and legal issue in the case and I don't see any valid appealable issues," Fleming said.
In ruling against the city, Michalek cited the U.S. Supreme Court's June 2009 ruling that officials in New Haven, Conn., illegally tossed out fire department promotional tests because no African-Americans and only two Hispanics scored high enough to receive promotions.
Michalek noted that in a federal court case in Buffalo, the city has stressed it found no racial bias in the 1998 and 2002 promotional tests that are being challenged. The federal case was brought by MOCHA, Men of Color Helping All Society, which represents a labor group of African-American Buffalo firefighters.
Michalek also cited the testimony of former City Human Resources Commissioner Leonard Matarese, who said that he let the 2005 and 2006 promotional lists affecting the 13 white firefighters expire because of "the fear of future litigation" by MOCHA about those lists.
Twelve of the 13 firefighters remain on duty while one has retired on disability.
Fleming said that, should the city change its mind and not appeal Friday's ruling, he will move for prompt court action on promotion and back pay demands for the 12 still on the force and the same money damages for the retired one.
Fleming said he estimates the city has spent more than $1.3 million on legal fees fighting both fire department promotion cases.
Though U.S. District Judge John T. Curtin last May tossed out much of the MOCHA racial discrimination suit, aspects of that suit are still the subject of court proceedings.
Michalek held that Fleming was correct in arguing that the city "turned a blind eye to the evidence in favor" of the validity of the promotional exams in his court compared to the federal court case brought by the black firefighters.
SEE earlier article on the subject: