There are many fire departments in the United States that are heavily engaged in simultaneous lawsuits, but it is hard to imagine things being much more challenging litigation-wise than in New Haven, Connecticut.  On the heels of the Ricci decision, and the post Ricci legal skirmishes, comes the “other” New Haven case. Two black New Haven lieutenants sought to challenge a practice known as "underfilling" of officer ranks, claiming that the practice benefited whites more than blacks. They alleged they would have been promoted to captain if not for that practice.

Underfilling involved promoting personnel on a promotional list even though there were no slots available. The practice was found to be unlawful in a 2004 state Supreme Court ruling that concluded underfilling violated the city charter and civil service regulations. A jury trial in July, 2005 resulted in the two plaintiff’s being  awarded $260,478 and $250,632, respectively, including non-economic damages as well as what they would have earned if they had been promoted to captain.

In a unanimous decision issued December 9, 2009, the Connecticut Supreme Court overturned the $500,000 jury verdict. Writing for the court, Chief Justice Chase Rogers concluded there was insufficient evidence of discrimination against Lt. Christopher Texeira and retired Lt. John Brantley. Judge Rogers wrote that  “Underfilling actually benefited minority candidates, too. It increased the percentage of blacks who could take the captain’s exam.”She ruled “There was no evidence from which the jury reasonably could have concluded that the practice of underfilling had reduced the chances of African-American firefighters as a class to be promoted or that it had increased the chances of non-African-American firefighters as a class to be promoted.”