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Judge tells city to hire four white firefighters

A federal judge has ordered the Boston Fire Department to hire four white men who successfully challenged the department's affirmative action policy and award them back pay and the seniority they would have earned had they not been passed over for lower-scoring minorities three years ago.

For the first time since the affirmative action plan was put in place 30 years ago, the city will be forced to compensate white applicants who say the hiring policy violated their civil rights.

"I think hopefully we're just going back to normal, the way it was meant to be, so that now they are just hiring the best person, regardless of race or color," said attorney Harold Lichten, who represents the four men who challenged the hiring plan in court along with a fifth white man who was recently hired by the Fire Department after earning a perfect score on the civil service exam.

In his four-page decision released yesterday, US District Judge Richard G. Stearns stressed that his order was limited to the four men who sued and wasn't intended to establish a precedent with respect to other white applicants who were also passed over in October 2000. A Globe analysis showed that 70 white men and women were bypassed in favor of minorities who scored lower.

Last Thursday, four other white men who were denied firefighting jobs at the same time in favor of minorities with lower scores filed a federal civil rights suit that is pending before Stearns.

"None of these gentlemen are trying to make any political statement at all, or any statement about social justice," said Boston attorney Mark J. Ventola, who filed the suit last week. "All they've ever wanted is to be Boston firefighters."

Seth Gitell, a spokesman for Mayor Thomas M. Menino, said the city's lawyers are reviewing the ruling but are not planning an appeal. "They're considering its implications in terms of future hiring and there are no plans to appeal," Gitell said.

Stearns ordered that the four men be hired "at the next immediate opportunity to fill vacancies."

Initially, Stearns had rejected the civil rights suit filed in April 2001 by the five white applicants, the first to challenge the Boston Fire Department's affirmative action hiring policy since 1989, when it was upheld by the US Supreme Court.

Then in March, the US Court of Appeals for the First Circuit reversed Stearns, finding that the fire department's affirmative action policy requiring the hiring of one minority firefighter for every white one was discriminatory because the department had already achieved racial balance. The court found that the federal consent decree "had outlived its usefulness."

Attorney Toni Wolfman, who represents the NAACP, which brought the 1972 suit that triggered the affirmative action policy, disagreed with Lichten's statement that the court rulings will lead to a more "normal" hiring practice.

"If a return to normal means a return to the way in which the Boston Fire Department conducted its hiring prior to the mid 1970s, it will be a disaster for any applicants of color in the city," said Wolfman, adding that there's not an effective check on the discretion used by those doing the hiring.

"In other words, minority candidates who receive high scores on the examination and are reached for consideration can be bypassed in favor of nonminority candidates whom the fire department wishes to hire," she said. "And unless they can prove that there was an intent to disciminate against them they will have no recourse."

Stearns concluded that it wasn't appropriate to order the city to pay damages for the emotional distress that the five men say they suffered for being denied firefighting jobs because the city had been making a "good faith" effort to abide by the federal consent decree. He also noted that the white applicants only wanted to serve the public in a dangerous occupation.

"This is, in other words, a case where the principle involved truly outweighs any prospect of personal financial gain," Stearns wrote.

However, Stearns ordered the city to pay the five men -- Joseph Quinn, Sean O'Brien, Robert Dillon, Joseph Sullivan, and C. Roger Kendrick Jr. -- some back pay, based on how much more money they may have earned as firefighters compared to the jobs they held during that time. He ordered a mediator to determine how much money they should be paid. He also ordered the city to credit the men with seniority, as if they had been appointed in October 2000.

Sullivan is a Lexington firefighter; Kendrick is an investment banker; Dillon is a construction manager; Quinn was recently hired by the Boston Fire Department. O'Brien is a Boston emergency medical technician.

Lichten estimated that the city will have to pay his five clients a total of "several hundred thousand dollars."

Each of the plaintiffs had been bypassed several times for firefighter jobs, despite scoring 98 or better on the civil service exam. All five had scored 99 when they were passed over for appointment three years ago.

Lichten successfully argued that the city had met the goals set under the federal consent decree, which required the fire department to hire minority firefighters so that the total number in the department roughly reflected their percentage in the city's population.

By 2000, according to data collected in the case, 40 percent of Boston firefighters were black or Hispanic, slightly more than their 38 percent representation in the overall population.

O'Brien, 36, of Dorchester, said the ruling ordering the city to hire him is "bittersweet, because it's taken so long."

For O'Brien, whose father was a firefighter, being a firefighter has been a longtime dream. "It wasn't about finances," he said. "You don't get rich being a firefighter."

If not for the ruling, some of the men would never get another chance to be firefighters because they're more than 32 years old, the maximum age for applicants, Lichten said.

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