U.S. Supreme Court Rules on New Haven Firefighters; David N. Rosen Says, 'Not So Fast'

The hotly debated firefighter promotion exam in New Haven, Conn., is back in court.

Two weeks ago, firefighter Michael Briscoe and his attorney David N. Rosen, a personal injury-plaintiff and appellate lawyer with David Rosen & Associates in New Haven, and a New England/Connecticut Super Lawyers honoree since 2007, got the green light from the 2nd U.S. Circuit Court of Appeals to go forward with a suit against the City of New Haven and its Civil Service Board, which administers the promotion test.

This test was already the focus of Ricci v. DeStefano, in which a group of firefighters, 17 white and one Hispanic, sued the city for reverse discrimination after the city decided to abandon the results of the exam when no black candidate scored well enough to be promoted. Two years ago, the U.S. Supreme Court ruled in their favor. Earlier this summer, they won a $2 million settlement, enhanced pension benefits and several firefighters were given promotions as mandated by the test.

So how can Rosen bring Briscoe v. City of New Haven if the U.S. Supreme Court has already upheld Ricci?

"They didn't validate [the exam]," says Rosen. "We looked [at the exam] and found evidence that it's not valid."

The New Haven firefighter test has two components, oral and written, and of the 77 candidates for lieutenant positions, Briscoe scored highest on the oral interview. But the oral portion counts for only 40 percent of the final score. The written portion, where he scored lower, is worth 60 percent.

According to court documents, Briscoe and Rosen, partner at David Rosen & Associates, allege that how the test was weighted was "arbitrary and unrelated to job requirements."

Backing that claim are industrial-organizational psychology experts who wrote in their Ricci v. DeStefano amici curiae brief:

The "tests were seriously flawed for ... [imposing] a predetermined 60/40 weighting for the written and oral interview components of the tests with no evidence that those weights matched the content of the jobs. Scientific principles of employment-test validation require ... that the results from those tests be weighted in proportion to their job importance."

"The written component was more heavily weighted than would be reasonable for picking the best lieutenant," says Rosen. "If you memorize the book, you will get [a score of] 100. But if you or I memorized the books, we still might not be the best to lead the New Haven Fire Department."

The oral interview, during which candidates explain how they would handle specific, detailed situations, is, says Rosen, "a lot closer to actual job performance."

Rosen, whose legal work helped integrate the New Haven Fire Department back in the 1970s, thinks Briscoe should be entitled to prove that he is right for the job. He also hopes that the Briscoe case clarifies the limits of Ricci v. DeStefano.

"The broader aim here is to show that there is still a place for cases that show how improved selection devices can lead to both a more diverse workforce and higher standards for employee selection," Rosen says.

--Jessica Tam