UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

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FRANK RICCI, ET AL. :
plaintiffs :
:
v. : NO: 3:04-CV-1109 (JBA)
:
JOHN DESTEFANO, JR, ET AL. :
defendants : November 20, 2009
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DEFENDANT’S RESPONSE TO PLAINTIFFS’

REQUEST FOR STATUS CONFERENCE

On November 13, 2009, both parties submitted proposed orders regarding the

promotion of certain plaintiffs. On November 17, 2009, the plaintiffs requested a status

conference regarding the proposed orders. The City of New Haven (“the City”) hereby

responds to that request.

The City is willing to attend another status conference if the Court so orders, to the

extent one is necessary. However, there is no confusion as to how many or which plaintiffs

will be promoted pursuant to the City’s proposed order. In its November 6th letter to

plaintiff’s counsel, the City listed those 14 plaintiffs who would have been promoted within

the two-year life of the eligible lists and thus will be promoted, once the eligible lists are

certified.
 Eligible lists, displaying the names and ranks of all passing candidates on these

exams, have not been prepared by the City. In fact, the City has never publicly released the

identities or ranks of the passing candidates. While the parties to the litigation have

information regarding candidates’ scores and ranks, this information has been sealed from

the public out of a concern for the interests of the non-party candidates. Consistent with the

Supreme Court’s opinion in this case, it is important that the eligible lists be prepared and

certified in order to avoid confusion, remove any notion of secrecy and ensure that only

those who would have been promoted based on their performance on the 2003 exams have

an opportunity for promotion now. See Ricci v. DeStefano, et al., --- U.S. ---, 129 S.Ct.

2658, 2681 (2009) (“If after it certifies the test results the City faces a disparate-impact

suit, then in light of our holding today it should be clear that the City would avoid disparate-

impact liability based on the strong basis in evidence that, had it not certified the results, it

would have been subject to disparate-treatment liability.”) (emphasis added). Once the lists

are certified, the Board of Fire Commissioners would then promote, in rank order, those

plaintiffs who would have been promoted during the two-year life of the lists. Additionally,

the City would have the discretion to promote non-plaintiffs, but only those non-plaintiffs

who would have been promoted if the City had certified the lists in 2004.

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 In short, the City’s proposed order ensures that what the Supreme Court considered

to violate Title VII of the Civil Rights of 1964 -- the City’s failure to certify the results of

the 2003 exams and promote consistent with those results -- is remedied and nothing more.

THE DEFENDANT
CITY OF NEW HAVEN

By /s/
Richard A. Roberts (ct 07665)
Stacey L. Pitcher (ct27111)
Todd J. Richardson (ct26699)
NUZZO & ROBERTS, L.L.C.
One Town Center
P.O. Box 747
Cheshire, Connecticut 06410
Tel: (203) 250-2000
Fax: (203) 250-3131
rroberts@nuzzo-roberts.com
spitcher@nuzzo-roberts.com
trichardson@nuzzo-roberts.com

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 CERTIFICATION

This is to certify that on November 20, 2009, a copy of the foregoing was filed
electronically and served by mail on anyone unable to accept electronic filing. Notice of
this filing will be sent by e-mail to all parties by operation of the Court(s) electronic filing
system or by mail to anyone unable to accept electronic filing as indicated on the Notice of
Electronic Filing. Parties may access this filing through the Court's CM/ECF system.

Karen Lee Torre, Esq.

Norman A. Pattis, Esq.
Law Offices of Norm Pattis, LLC
129 Church Street, Suite 405
New Haven, CT 06510

Victor A. Bolden, Esq.

Kathleen M. Foster, Esq.
City of New Haven
165 Church Street, 4th Floor
New Haven, CT 06510

W. Martyn Philpot, Jr.

Law Office of W. Martyn Philpot
409 Orange Street
New Haven, CT 06511

Christy B. Bishop, Esq.

Dennis R. Thompson, Esq.
Thompson & Bishop
2719 Manchester Road
Akron, OH 44319

/s/
Richard A. Roberts

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