Judge: Promotions must wait
Four firefighters allege they were improperly overlooked; lawsuit must be settled first
STAMFORD — The city had no discernible purpose for grouping firefighters’ scores on a promotion exam, a judge has ruled, and failed to establish why it needs more leeway in deciding which ones get to be lieutenants and captains.
State Superior Court Judge Barbara Bellis has granted a temporary injunction that will stall department promotions until the case, in which four firefighters allege that they were improperly overlooked, is settled.
The ruling holds up an earlier injunction that prevents the city from filling vacancies for lieutenants and captains. The department has been using “acting” lieutenants and captains — people of lower rank who fill in for a shift and are paid the higher rate for that shift.
Attorney Jonathan Orleans of Pullman & Comley represents the city in the suit.
“This really is about whether the city could go ahead and fill current vacancies using the same procedures the city thinks are appropriate,” Orleans said Tuesday.
The procedures are based in a city effort to improve the tests after it was determined that they could have been unfair to minority candidates. To devise new tests, the city contracted with a company called Morris & McDaniel, which computed scores out to two decimal points based on a written exam and an oral assessment.
But the personnel office converted the precise test scores to whole numbers, creating clusters of tie scores.
If, say, Morris & McDaniel scored three firefighters taking the lieutenant test at 95.16, 95.57, and 95.93, the one who earned 95.93 would be promoted. Instead, city officials considered all the scores to be 95, allowing them to choose among the three test takers.
Firefighters Robert Pickering and Brian Whitbread, and lieutenants Kevin Dingle and Bruce Wagoner, sued the city, the Fire Commission, the Personnel Commission, Director of Legal Affairs Kathryn Emmett, and former Human Resources Director Clemon Williams, saying they were improperly denied promotions.
Pickering and Whitbread were candidates for lieutenant positions. On that exam, the five highestscoring firefighters were promoted, as the rules require. But other promotions appeared to be decided outside the rules.
Pickering, for example, earned a 78, but six candidates who scored lower were promoted and he was not.
Whitbread and another candidate scored 77. That candidate was promoted but Whitbread was not. Five firefighters who scored lower than Whitbread also were promoted.
The situation was similar for Dingle and Wag
By rounding scores, the city created “larger pools of candidates, diluted individual seniority points which had been negotiated between the city and the union, and their methodology resulted in a domino effect for subsequent vacancies,” Bellis wrote in her decision.
oner, who took the captain’s test.
The five highest scorers were promoted. The next four highest scorers all got an 83, including Wagoner and Dingle, but they did not become captains and the other two did.
Failing to promote based on the more precise scores violated civil service rules and city Charter requirements that the most qualified candidates be chosen using objective assessment techniques, the lawsuit alleges.
Elisabeth Maurer of Maurer & Associates, who represents the firefighters, could not be reached for comment Tuesday. Maurer has said that the city was trying to diversify the fire department but did so by rounding scores on promotional tests instead of recruiting entrylevel minority firefighters and promoting from there.
Orleans said Tuesday the city had the highest intentions.
“The city’s objective is and always has been to hire and promote the most qualified people to fill positions in the fire department, and to be as inclusive as possible,” Orleans said. “The city believes it was acting appropriately when it made the promotions in 2017 using the procedures the plaintiffs have challenged. The city still believes it was acting appropriately, and is evaluating its legal options for dealing with this latest ruling.”
In the ruling the judge said that if more test scores are tied, there is more competition for each vacancy, giving city officialsmorediscretionfor deciding promotions. By rounding scores, the city created “larger pools of candidates, diluted individual seniority points which had been negotiated between the city and the union, and their methodology resulted in a domino effect for subsequent vacancies,” Bellis wrote in her decision.
“The (personnel) director’s authority in Stamford to determine objective measuring techniques and procedures in weighting the results of tests and determining the relevant ranking of candidates does not supercede the fact that the law requires the methodology that is used to be consistent with the Charter and classified service rules,” Bellis wrote.
The firefighters “were not fairly considered for promotion,” she wrote.
The tests were administered in November 2017. The lawsuit was filed in state Superior Court in Stamford in July 2018, then moved to the complex litigation docket in Waterbury, where Bellis sits.
The firefighters are seeking to be promoted and awarded back pay, seniority and pension credit dating to November 2017. They want the judge to order the city to comply with civil service rules and Charter provisions governing promotions, and seek compensatory and punitive damages in excess of $15,000, plus payment of their legal fees.
Orleans said the case is scheduled for trial in September 2020.
“It’s impossible to say what might happen between now and then,” Orleans said. “The city has appeal options. Both sides presumably will want to take depositions and engage in pretrial motion practices, so there are a lot of things that can happen between now and the scheduled trial.”