Brunet v. City of Columbus

• Decision Date: 04 October 1993
• Docket Number: Nos. 92-3340,92-3893 and 92-4102,s. 92-3340
• Citation: 1 F.3d 390
• Parties: 62 Empl. Prac. Dec. P 42,479 Ann BRUNET and Denise Sachs, on behalf of themselves and the class they represent, Plaintiffs-Appellants, Guy E. Tucker; James T. Meyer; Stuart J. Tudor; and Joseph S. Hilleary, on behalf of themselves and the class they represent, Plaintiffs-Intervenors-Appellees, v. CITY OF COLUMBUS; Ohio Columbus Civil Service Commission; Dana Rinehart; Alphonso Montgomery, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 390

1 F.3d 390

62 Empl. Prac. Dec. P 42,479

Ann BRUNET and Denise Sachs, on behalf of themselves and the class they represent, Plaintiffs-Appellants Guy E. Tucker; James T. Meyer; Stuart J. Tudor; and Joseph S. Hilleary, on behalf of themselves and the class they represent Plaintiffs-Intervenors-Appellees, v. CITY OF COLUMBUS; Ohio Columbus Civil Service Commission Dana Rinehart; Alphonso Montgomery, Defendants-Appellees.

Nos. 92-3340, 92-3893 and 92-4102.

United States Court of Appeals Sixth Circuit.

Argued March 18, 1993.

Decided July 28, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 4, 1993.

Alexander M. Spater (argued and briefed), Kathaleen B. Schulte (briefed), Spater, Gittes, Schulte & Kolman, Columbus, OH, for Ann Brunet and Denise Sachs.

Marion H. Little, Jr., Richard Frye (argued), Schwartz, Kelm, Warren & Rubenstein, Columbus, OH, Jeffrey S. Bolyard (briefed), McNeer, Highland & McMunn, Clarksburg, WV, for Guy E. Tucker, James T. Meyer, Stuart J. Tudor and Joseph S. Hilleary in No. 92-3340 and 92-4102.

Ronald J. O'Brien (argued and briefed), City Attorney's Office for the City of Columbus, Columbus, OH, for City of Columbus, Ohio Civil Service Com'n, Dana Rinehart, Alphonso Montgomery.

Richard Frye (argued and briefed), Marion H. Little, Jr. (briefed), Schwartz, Kelm, Warren & Rubenstein, Columbus, OH, Jeffrey S. Bolyard (briefed), McNeer, Highland & McMunn, Clarksburg, WV, for Guy E. Tucker, James T. Meyer, Stuart J. Tudor, and Joseph S. Hilleary.

Before: KENNEDY and MILBURN, Circuit Judges, and WELLFORD, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Plaintiffs-appellants Ann Brunet and Denise Sachs, female firefighters of the Columbus Division of Fire (the "CDF"), and the class they represent (the "Brunet plaintiffs"), appeal three separate orders of the District Court involving the CDF's hiring of entry level firefighters. First, they appeal the District Court's order of March 18, 1992, setting aside a February 27, 1989 consent decree between the Brunet plaintiffs and defendant-appellee City of Columbus (the "City") and enjoining the City from selecting firefighters in the manner provided by the consent decree. Second, they appeal the District Court's order of July 24, 1992, holding that strict rank-order hiring on the basis of an applicant's total score on the firefighter examination is valid and may be used to select firefighters. Third, the Brunet plaintiffs appeal the District Court's final judgment entered September 24, 1992, which incorporates its order of September 23, 1992, reducing the seniority of two female firefighters. These appeals result from a class action by Stuart Tudor, James Meyer, Joseph Hilleary and Guy Tucker (the "Tucker plaintiffs"), male CDF firefighters or candidates, against the City ¹ alleging that the City's hiring of firefighters in accordance with the consent decree of February 27, 1989, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by discriminating against male applicants in the selection of entry level firefighters. The District Court consolidated the two class actions.

On appeal, the issues are (1) whether the District Court erred in determining that the Tucker plaintiffs had standing to pursue their action; (2) whether the District Court erred in holding in May, 1986 that the Brunet plaintiffs failed to prove intentional discrimination in their claim brought under 42 U.S.C. Sec. 1983; (3) whether the District Court erred in holding that the method of hiring entry level firefighters provided for by the consent decree violated the Tucker plaintiffs' Equal Protection guarantees not to be discriminated against on the basis of their gender; (4) whether the District Court erred in finding that the City discriminated against the Tucker plaintiffs by agreeing to the February 27, 1989 consent decree on the grounds that no such allegations were made by the Tucker plaintiffs in their complaint and that that claim is outside the applicable statute of limitations; (5) whether the District Court erred in determining that strict rank-order hiring on the basis of a candidate's total score on the 1986 et seq. firefighter examination is a valid, job-related method of choosing qualified candidates for the position of firefighter; (6) whether the District Court erred in determining that the Brunet plaintiffs had failed to show the existence of an alternative selection device that has a less adverse impact on women; and (7) whether the District Court erred in holding that an appropriate remedy for the Tucker class of plaintiffs was to alter the seniority dates of two female firefighters. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.

I.

A. Brunet Litigation

The background of this case is lengthy. Plaintiffs Ann Brunet and Denise Sachs are currently CDF firefighters. In 1980 and 1984, Brunet took the City's firefighter examination and was not selected as a firefighter. In 1984, Brunet, together with three other plaintiffs, brought a class action against the City ² alleging that the City's entry level firefighter examination discriminated against women. The District Court in that case certified a class of all past, present, and future female firefighter candidates.

The 1980 and 1984 firefighter examination consisted of a physical capability test ("PCT") and a written examination called a cognitive ability test ("CAT"), which included a mechanical reasoning test. The CAT constituted 70 percent of the applicant's total score. The PCT constituted 30 percent of the applicant's total score. Each candidate was ranked on the basis of his or her total score on the examination. Candidates who had taken the 1975 and 1978 examinations were ranked on the basis of their scores on the CAT alone. The PCT was administered on a pass/fail basis. The District Court in Brunet determined that this change in the ranking procedure occurred as a result of a Civil Service Commission study conducted by the City that found that "the work of firefighting was largely physical, and that better firefighters were distinguished by the ability to excel while performing physical tasks." Brunet v. City of Columbus, 642 F.Supp. 1214, 1236 (S.D.Ohio 1986), appeal dismissed, 826 F.2d 1062 (6th Cir.1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1593, 99 L.Ed.2d 908 (1988). Pursuant to a court order in Dozier v. Chupka, 395 F.Supp. 836 (S.D.Ohio 1975), applicants who took the 1980 and 1984 examination were ranked in the order of their total score on separate eligibility lists for white and black applicants. The purpose of these separate lists was to increase the percentage of black firefighters in the CDF.

In their complaint, the Brunet plaintiffs challenged the 1980 and 1984 PCT and the mechanical reasoning portion of the CAT as having a disparate impact on female candidates and as not being job related in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Plaintiffs further contended in a 42 U.S.C. Sec. 1983 claim, that the City in 1980 and 1984 acted with intentional discrimination against female firefighter candidates in violation of the Equal Protection Clause of the Fourteenth Amendment.

The District Court's decision in Brunet consisted of an opinion and order entered on May 13, 1986, and a supplemental opinion and order entered on May 30, 1986. The District Court held that the 1980 PCT and the 1980 and 1984 mechanical reasoning tests did not violate Title VII because they had not had a disparate impact on the class of female candidates. Brunet, 642 F.Supp. at 1221. The District Court also held that the plaintiffs failed to prove intentional discrimination in connection with their Equal Protection claim brought under section 1983. Id. at 1223. However, the District Court held that the 1984 PCT did violate Title VII because the 1984 PCT had a disparate impact on female candidates, and the City had failed to demonstrate that the PCT, as it was then designed, was job related. Id. at 1247-50. The District Court also held that the City's practice of rank-order hiring from a single list grouping together males and females was impermissible under Title VII because the City could not establish that higher scores on the test meant better job performance. Id. at 1248-49.

The Brunet Court enjoined the City from hiring any new firefighters until a new PCT could be validated for the 1986 examination. Id. at 1253. It also enjoined the use of rank-order selection from a single list comprised of female and male candidates until strict rank-order hiring could also be validated. Id. at 1252-53. Until validation, the City was required to establish a pass/fail scoring system for the PCT based upon the scores of incumbent firefighters and to hire men and women in proportion to the number of each sex passing the 1986 examination. Id. at 1253. Finally, the District Court held that upon adoption of a content valid examination, the City was required to offer the new test to the 1984 female applicants and hire the number of women who would have been hired in 1984 had the test been content valid. Id.

However, on July 14, 1986, before the 1986 test was content validated, the District Court entered an order, also reported at 642 F.Supp. 1214, in which it modified its injunction to allow the City to hire men and women firefighters in proportion to the number of males and females who passed the 1986 test and to select from within either category, either by rank order or on a random basis. Id. at 1254-58. This action was necessary to satisfy the City's urgent need for new firefighter recruits. Plaintiffs appealed and the City cross-appealed.

While the appeals were pending, the City developed a new 1986 PCT and submitted a content-validity study. Stated simply, a content-valid test identifies those skills important to a particular job and tests those skills....