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Fire captain testifies on bias claim

A Buffalo Fire Department captain told State Supreme Court Justice John A. Michalek on Tuesday that he believed he would have been "a division chief right now" had the city not voided civil service tests on racial grounds a few years ago.

Joseph B. Fahey testified that then-Fire Commissioner Michael L. D'Orazio told him in September 2005 he was about to be promoted to a battalion chief's job just as the testing problem arose.

Fahey's testimony was the first presented in a nonjury trial to determine how much money Buffalo owes 13 white current and retired firefighters as a result of the city's decision to void 2005 and 2006 civil service test results because minority firefighters did poorly.

Stephen Kelkenberg, Joshua Feinstein and Joseph Brown, three of the private attorneys hired by the city to defend it in the case, contended that the firefighters who sued the city had the legal burden of proving that voiding the test scores hurt them professionally.

But the judge disagreed with the attorneys.

"Liability has been established. Discrimination has been found," and "the issue of damages" is now before the court, Michalek said, referring to higher court rulings supporting his Oct. 29, 2010, decision in favor of the 13 firefighters.

Andrew P. Fleming and Christen Archer Pierrot, representing the firefighters, declined to comment when asked about the damages they seek. But court officials close to the case said they likely are seeking more than $200,000 for each victim.

Fahey, 49, a Buffalo firefighter since February 1986, got his law degree in 1992 and passed the bar exam. He remains a licensed attorney but told the judge he doesn't actively practice law because "my heart was in being a fireman."

Fahey was provisionally appointed a battalion chief in November 2005 because the department had a vacancy to fill. He told the judge he was "unceremoniously demoted" back to captain three years ago, apparently because of the city's racially based job plans for the Fire Department.

He told the judge he now considers his chances of further promotions before he retires "not very good."

Michalek has scheduled testimony in the case to run through next week.

In addition to Fahey the plaintiff are current firefighters Eugene Margerum, Timothy Hazelet, Peter Kertzie, Peter Lotocki, Scott Skinner, Thomas Reddington, Timony Cassel and Matthew S. Osinski, plus David Denz, who is about to retire, and retirees Anthony Hynes, Mark Abad and Brad Arnone.

The trial will continue today.