New York High Court Orders Rehearing of Firefighters' Reverse Discrimination Victory

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By Hassan Kanu

Feb. 17 — New York's highest court Feb. 17 remanded a decision in favor of 12 white firefighters who alleged reverse race discrimination by the city of Buffalo for denying them promotions after a federal court ordered corrective measures to remedy a practice of discrimination against black, Hispanic and female employees.

In an opinion by Judge Jonathan Lippman, the New York Court of Appeals ruled 4-1 in favor of the city, its fire department and human resources commissioner on the firefighters' state law claims. The judges said the central issue in the lower court—whether officials had “a strong basis in evidence” to believe they would lose another discrimination case if they promoted more white firefighters—should not have been decided without a hearing.

“The issue of liability turns on the factual circumstances behind the City's actions, the strength of its justifications and its motivations,” the court said. “[W]e do not believe that this is an issue that should have been decided at the summary judgment stage.”

Judges Susan Read, Eugene Pigott, Sheila Abdus-Salaam concurred. Judge Jenny Rivera dissented in part in a separate opinion.

Previous Lawsuits, Decree, Precipitates Dispute

The Buffalo Fire Department's promotion and hiring practices have been the subject of litigation going back to the 1970s, according to the opinion.

The federal government sued the city in 1974, alleging the written civil service examination for entry-level firefighters and police officers had a discriminatory impact on minorities, Lippman said.

A federal appeals court found that continued use of the test constituted a “pattern or practice of discrimination against African Americans, Hispanics and women,” and it issued a remedial decree that imposed interim hiring ratios and affirmative recruitment efforts, the court said.

An organization of black firefighters subsequently challenged the exam in 1998 and again in 2003.

While the 2003 lawsuit proceeded, Leonard Matarese, the city's human resources director at the time, “decided to allow the promotion eligibility lists” for the fire department to expire earlier than required, Lippman said. Past practice had been to extend the eligibility lists to their maximum duration.

The 12 firefighters then alleged the city engaged in reverse discrimination because they would have been promoted had officials not let the lists expire early.

Supreme Court Ruling Changes Course of Litigation

A lower court denied the firefighters' summary judgment motion in 2009, saying they failed “to establish as a matter of law that the City's actions were not narrowly tailored to meet” the compelling public interest of equal opportunity, Lippman wrote.

Three weeks later, the U.S. Supreme Court decided Ricci v. DeStefano, 557 U.S. 557, 106 FEP Cases 929 (2009).

Ricci established that an employer's fear of lawsuits can't justify discrimination against whites unless it has a “strong basis in evidence” to believe racial minority parties could prevail on a disparate impact discrimination claim. This meant employers “could not act based on mere statistical disparity” without further justification, Lippman said.

The lower court applied the Ricci standard after a rehearing and found for the 12 firefighters, awarding them $2.7 million in damages.

The city then appealed.

Evidence Contained Discrepancy

The court noted that both parties agreed that the Ricci standard governs the dispute.

Lippman added that “standards for recovery under the New York Human Rights Law are in nearly all instances identical” to federal discrimination laws.

The court said the firefighters established a prima facie case of discrimination—because the city chose not to promote eligible white candidates—and therefore the burden shifted to the city to “prove that it had ‘a strong basis in evidence to justify its race conscious action,' ” the judges wrote.

The court noted that there are differences in Matarese's testimony as to the reasons for allowing the eligibility lists to expire. His 2006 testimony “focuses on his desire to undo the racial imbalance,” while his 2010 affidavit cites the advice of an expert witness “that there was a substantial risk” of discrimination liability if the fire department went through with the promotions.

It concluded that “the facts thus far ascertained are insufficient to determine what the City's intentions were at the time that the lists were expired,” and it remanded the case.

Rivera's dissent asserted that federal discrimination law “undermines the legislative purpose and stated equal opportunity goals” of New York's broader civil rights laws. She urged the court to reject the Ricci standard.

Chiacchia & Fleming represented the firefighters. Hodgson Russ represented the city.

To contact the reporter on this story: Hassan Kanu in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at