Updated, Oct. 9: Comment from John Mosby; lead sentence reworked.
NORWALK, Conn. – One lawsuit filed by a member of the Mosby family against the Norwalk Board of Education has been dismissed, while another may be headed toward a similar fate. A third Mosby lawsuit is ongoing, but may wrap up soon.
Changes made to pension agreements did have some disparate impact on employees, as argued in Alvin Mosby’s complaint, but the changes are ultimately a legitimate seniority system within the law, invalidating the disparate impact claim, United States District Judge Jeffrey Alker Meyer wrote in his Sept. 30 dismissal of the federal lawsuit. Mosby’s complaint of retaliation in the form of the release of his address in a list of salaries printed by NancyOnNorwalk had no merit, Meyer wrote, pointing out a NancyOnNorwalk story submitted as evidence by Mosby himself undercut his own argument.
John Mosby, the father of Alvin Mosby and BoE member Shirley Mosby, said Alvin Mosby would be appealing that decision.
John Mosby filed an appeal in January of a December dismissal of his case alleging discrimination because he had been asked to show identification at Brien McMahon High School, alleging discrimination in Board hiring practices, and discrimination in the poor condition of Briggs High School.
That dismissal was based the complaint not being served in a timely manner. Mosby has never submitted an argument as to why the dismissal should be vacated; he was granted an extension on Feb. 10, with a new deadline of Sept. 4 to submit the appeal argument but nothing has been filed, according to the state judicial website.
“They never notified me,” Mosby said Oct. 7, explaining that he doesn’t get email and the Court had agreed to mail him notifications. “I am going to tell them, I object. Because I never received them.”
John Mosby is the lead plaintiff in a third case, representing retirees who state that the BoE and the United Public Employees Union (UPEU) breached the terms of their collective bargaining agreement, in regard to their retirement medical insurance coverage. UPEU on Aug. 9 moved to dismiss the case, saying that all the plaintiffs besides Mosby retired after the 1997-2003 CBA expired, so that they cannot have those contract provisions enforced, and that Mosby is receiving Medicare benefits as his CBA requires. None of the plaintiffs have standing, and UPEU is not the bargaining unit that negotiated the contracts that are being contested, UPEU argues.
The matter is on the short calendar for Oct. 10 with a Nov. 7 trial management conference, according to the website.
Meyer’s dismissal of Alvin Mosby’s case explains that the 2003 CBA created two classes of retirees, “those hired before 2003, who would not have to pay for their Medicare Supplement Plans, and those hired after 2003, who would,” without distinguishing any difference in benefits to employees who retired “early,” between the age of 55 and 62, and those who took a “normal” retirement at 62.
The 2013 CBA, which took effect in 2016, differed, paying the full premium for retirees between the age of 59 and 65, when they would be covered under Medicare. An employee could retire at 55 but would pay the entire health insurance premium.
Meyer said he did not agree with the BoE that no “employment practice” was at issue because the agreement was made with a union, but said the Board is responsible for discriminatory consequences.
“Equally specious is defendant’s quite remarkable argument that there could not have been any racial discrimination against plaintiff because the president of the union as well as a majority of its members were black,” Meyer wrote, explaining that it’s not necessary for the discrimination to be intentional for it to break the law.
The Board “wrongly assumes that persons from one protected class cannot as a matter of law discriminate against persons from the same protected class,” Meyer wrote. “If defendant were right, then employers could easily immunize themselves from discrimination claims merely by stocking their human resources departments with a rainbow coalition of race, religion, and gender, then ensuring that the relevant decisionmaker for each adverse action against an employee matched the employee’s own protected class characteristics.”
However, Mosby did not provide evidence to show if the affected retirees were disproportionately African American in comparison to earlier retirees, he wrote, pointing out that a three-year delay on implementing the changes, meant to help ease the retirees’ adjustment, ironically increased the African American component of the group and added weight to Mosby’s complaint.
That merit is negated by the good faith business purpose for the 2013 changes, the need to cut costs in the wake of the 2008 recession, he wrote, concluding, “there is no genuine issue of fact remaining to support plaintiff’s disparate impact claim.”
Mosby’s claim of retaliation in the printing of his personal information in an NoN article was negated by “evidence that both parties have provided (that) indicates that the (reporter) obtained this information from publicly available sources and not as a result of any retaliatory measures taken by defendant.”
Meyer pointed to a copy of an NoN article submitted as evidence by Mosby, with the NoN explanation that, “Mosby’s address and salary have been published on this website as part of an annual compilation of the salaries of city employees. . . The list, a public document, is provided to the media by Norwalk Comptroller Frederic Gilden, an employee of the city’s Finance Department, not the Board of Education. The media requests this list every year.”
John Mosby has filed numerous lawsuits and complaints with the Commission on Human Rights and Opportunities (CHRO) alleging discrimination by the Board of Education; none have been successful in recent years. In 1996, then-Norwalk Superintendent of Schools Ralph Sloan wrote that Mosby had filed more than 50 complaints with the state Labor Board in his capacity as president of the custodians’ union.
The NAACP awarded Mosby a Lifetime Achievement Award in February. While his unsuccessful complaints and lawsuits have gotten much attention, members of his community say he won a big case in the 1970s.
“In 1978 he fought for equal pay for men and women and went all the way to the Supreme Court in Connecticut and won,” a speech written by his daughter Shirley Mosby for the NAACP award ceremony states. “He recognized early on the injustice of the inequality between men and women and did something about it. During that same year the teacher’s union went on strike and he supported them by going on strike with 300 custodians – showing unity with the teachers. He fought against privatizing the union and won his case with the Labor board in 1990 – not to privatize.”