New Haven Firefighters Local 825 v. City of New Haven

• Decision Date: 07 August 2015
• Docket Number: Civil Action No. 3:14–cv–716 (CSH).
• Parties: NEW HAVEN FIREFIGHTERS LOCAL 825, Plaintiff, v. CITY OF NEW HAVEN, Toni Harp, Michael Briscoe, Eldron Morrison, and Daniel Delprete, Defendants.
• Court: U.S. District Court — District of Connecticut

120 F.Supp.3d 178

NEW HAVEN FIREFIGHTERS LOCAL 825, Plaintiff,

v.CITY OF NEW HAVEN, Toni Harp, Michael Briscoe, Eldron Morrison, and Daniel Delprete, Defendants.

Civil Action No. 3:14–cv–716 (CSH).

United States District Court, D. Connecticut.

Signed Aug. 7, 2015.

Patricia Anne Cofrancesco, Law Office of Patricia A. Cofrancesco, East Haven, CT, for Plaintiff.

Barbara L. Cox, Office of Corporation Counsel, David N. Rosen, David Hunter Smith, David N. Rosen & Associates, P.C., New Haven, CT, for Defendants.

RULING ON PLAINTIFF'S MOTION TO REMAND REMOVED ACTION TO STATE COURT

HAIGHT, Senior District Judge:

Michael Briscoe, a co-Defendant, removed this case to this Court pursuant to 28 U.S.C. § 1443(1). Plaintiff now moves to remand the action to its original forum, the Connecticut Superior Court, Judicial District of New Haven. The motion to remand [Doc. 16], which Briscoe opposes, has been extensively briefed and ably argued by counsel at a hearing before the Court. This Ruling resolves the motion.

I

This case is one of a prolonged series of actions between Michael Briscoe, an African–American firefighter with the City of New Haven, Connecticut Fire Department on the one side, and on the other, New Haven Firefighters Local 825 ("Local 825" or "the Union"), of which Briscoe is a member and whose officers are Caucasian.

A

The seeds of controversy were planted when in November and December 2003 the Fire Department administered written and oral examinations for promotion to the ranks of lieutenant and captain.¹ Under the contract between the City and Local 825, the written examination result counted for 60% of an applicant's total score and the oral exam for 40%. Those with a total score above 70% on the exam would pass.

In 2003, there were 8 vacancies for the rank of lieutenant. The City utilized oral and written examinations fashioned and administered by an outside professional consultant. Promotions were made in accordance with lists drawn up to reflect the examination scores and certified by the City.

Seventy-seven candidates completed the 2003 lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Under the City Charter's "rule of three," the hiring authority was required to fill each vacancy by choosing one candidate from the top three scorers on the list. The application of the rule of three to the examination scores resulted in the top 10 candidates being eligible for immediate promotion to lieutenant (only 8 would be chosen). All 10 were white. When the examination results showed that white candidates had outperformed minority candidates, City officials became concerned about the City's potential liability for disparate impact under federal antidiscrimination statutes if it certified the 2003 exam results and made promotions on the basis of them. After a hearing on the subject, the New Haven Civil Service Board, as the result of an evenly divided vote, declined to certify the promotion lists generated and threw out the examinations.

Certain white and Hispanic firefighters who likely would have been promoted based on their good examination performances sued the City and some of its officials, alleging that by discarding the exam results, the City discriminated against them based on their race, in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. See Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The Supreme Court held that the Ricci plaintiffs were entitled to summary judgment on their Title VII claim, and remanded the case. Later in 2009, the City certified the 2003 examination results and made promotions accordingly.

Because the 2009 promotions to lieutenant were based on the 2003 examination scores, in which white firefighter candidates scored better than black candidates, Briscoe was not promoted. He responded by bringing an action in this Court against the City under Title VII on a disparate impact theory. See Briscoe v. City of New Haven, No. 3:09–cv–1642. This Court dismissed the action on the ground that "[w]hat the [Supreme] Court held in Ricci and what it said in doing so squarely forecloses Briscoe's claims." 2010 WL 2794212, at *10 (D.Conn. July 12, 2010). On Briscoe's appeal, the Second Circuit took a different view and reversed. The Court of Appeals, "[a]fter a careful review of that [Ricci ] decision and relevant nonparty preclusion and Title VII case law," concluded that "Briscoe's claim is neither precluded nor properly dismissed." 654 F.3d 200, 209 (2d Cir.2011). This Court's dismissal of Briscoe's claim was vacated and the case remanded, the Second Circuit noting that "we express no view as to whether other issues raised below may warrant dismissal of the action, including relevant statutes of limitation, the doctrine of laches, or the unavailability of the requested relief because of Title VII's anti-alteration provision." 654 F.3d at 210.

On remand to this Court in No. 3:09–cv–1642, the City moved again, on those additional different grounds, to dismiss Briscoe's action. The City was joined in that motion by certain white firefighters who sought and obtained the Court's leave to intervene. Additional briefs were filed and renewed oral arguments heard. In an opinion reported at 967 F.Supp.2d 563 (D.Conn.2013), this Court again dismissed Briscoe's action against the City. This Court held that the action, "while not time barred, must be dismissed on substantive grounds," specifically, "that the Plaintiff in this case has not pleaded a prima facie Title VII claim." Id. at 592, 590.

This Court filed that second judgment of dismissal on September 9, 2013. Briscoe filed another notice of appeal with the Second Circuit. On March 31, 2014, while the appeal was pending, Briscoe and the City settled Briscoe's underlying discrimination claim. The City paid an agreed amount to Briscoe. Briscoe stipulated to a withdrawal of his appeal, the Second Circuit issuing its mandate on April 4, 2014. He also withdrew his motion to intervene in a separate action, brought by other black firefighters against the City and Local 825 to challenge the 2003 examination, pending before Judge Underhill: Tinney v. New Haven, No. 3:11–cv–1546.

The settlement agreement between Briscoe and the City which terminated the case bearing docket number 3:09–cv–1642 was preceded and brought about by discussions between Briscoe and New Haven Mayor Toni Harp, which culminated in April 2014 when Mayor Harp, purporting to act under the City Charter, transferred Briscoe from his position of firefighter to that of Director of Public Safety Communications. The New Haven Department of Public Safety Communications is the agency responsible for dispatching 911 calls throughout the City. Briscoe entered duty as its Director on April 7, 2014. Briscoe's occupation of that position is regarded initially as a temporary assignment through October 15, 2015, after which it may be made a permanent appointment, that being the date when Briscoe becomes eligible to retire from the Fire Department.²

B

Briscoe began his service as Director of the Department of Public Safety Communications on April 7, 2014. On April 10, 2014, Local 825 filed a complaint in the Connecticut Superior Court, Judicial District of New Haven, against the City of New Haven, Mayor Harp, and Briscoe. See Briscoe v. City of New Haven, No. NNH–CV14–6046320–S (Conn.Super.2014).

Local 825's complaint against these defendants has as its objective the removal of Briscoe from his office as Public Safety Communications Director. The complaint alleges a claim in the nature of a quo warranto, pursuant to Conn. Gen.Stat. § 52–491, which reads in its entirety:

When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the Superior Court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.³

The Union's quo warranto complaint in the State court alleges in ¶ 7 that Mayor Harp's transfer of Briscoe, a firefighter, to the position of Director of the Department of Public Safety Communications violated the Charter of the City of New Haven. The complaint further alleges in ¶ 9 that the transfer violated Conn. Gen.Stat. § 7–468(b), "which recognizes the plaintiff Union as the sole and exclusive bargaining agent for the defendant Briscoe and other similarly situated employees." Local 825's theory of the case is that a transfer by the City of Briscoe, a union member, from the position of firefighter to a different position in City employment should have been negotiated between the City and the Union pursuant to the collective bargaining agreement then in force. The Mayor's failures and transgressions in these regards, Local 825 contends, brands Briscoe as one who "usurps the exercise" of his present office. The Union's quo warranto complaint in state court seeks Briscoe's removal from that usurped office.

Local 825's quo warranto complaint was signed on April 10, 2014 by James Kottage, the president of the Union. Kottage was one of the white firefighters who ultimately prevailed before the United States Supreme Court in the Ricci case. Frank Ricci, the white firefighter who gave his name to that case, is currently the vice-president of Local 825.

Briscoe was first served with process in the state court quo warranto action on April 22, 2014. On May 19, 2014, Briscoe filed a notice of removal [Doc. 1] removing the state court action to this Court, purportedly pursuant to 28 U.S.C. § 1443(1). Briscoe's theory of the case is stated in ¶ 1 of his notice of removal: "The plaintiff New Haven Firefighters 825 filed this lawsuit in Connecticut Superior Court in retaliation for Briscoe's pursuit of race discrimination claims in litigation in this Court and on appeal." That retaliatory conduct on the Union's...