In 2007, twelve firefighters sued the City of Buffalo after they were denied promotions because of their race. Each of the firefighters performed well on the competitive examination, earned a place on the resulting certified eligible list, and received a notice of appointment to a promotional position. No promotions were made. The City’s Civil Service Commissioner let the list expire because: (1) he was worried that black firefighters on the list would sue the City alleging disparate treatment because more white firefighters would be promoted than black firefighters; and, (2) he was concerned that promoting the white firefighters would disrupt settlement negotiations in two earlier disparate impact lawsuits against the City.
The key testimony in Margerum v. City of Buffalo was provided by the City’s Human Resources Commissioner. In 2006, shortly after the promotional lists expired, the Commissioner testified that he alone made the decision to allow the lists to expire for the reasons stated above. Four years later, in 2010, the Commissioner revealed that he had actually followed the advice of an expert. The expert was concerned about problems with the state-developed promotional examinations, and thought those problems would expose the City to further litigation and potential liability in the earlier-filed lawsuits. But the Commissioner was unable to cite any evidence that would support the expert’s opinion.
The trial and appellate courts ruled for the white firefighters. Both courts relied on the U.S. Supreme Court’s decision in Ricci v. DeStefano, which requires that an employer “must have a strong basis in evidence to believe it will be subject to disparate-impact liability” before it takes “race-conscious, discriminatory action.” The only “belief” that is relevant is the employer’s belief at the time it acted; it is irrelevant what the employer believed several years later.
PLF filed an amicus brief after the case was appealed to the New York Court of Appeals (New York’s highest court). We urged the Court to follow Ricci, and not permit unbridled disparate impact liability state law. While the Court agreed that that Ricci prevents an employer from relying on after-acquired evidence to buttress a race-based decision, it still ruled against the firefighters. The Court decided that liability cannot be determined on summary judgment, and remanded the case for a trial to determine why the City let the promotion eligibility lists expire. The Court explained that “the facts thus far ascertained are insufficient to determine what the City’s intentions were at the time the lists were expired.”
So this lawsuit, filed more than eight years ago, will continue for a few more years. We can only hope that the maxim “justice delayed, is justice denied” does not hold true in this case.