Isabel v. City of Memphis

Decision Date11 April 2005
Docket NumberNo. 03-5912.,No. 03-6011.,No. 03-6231.,No. 03-5914.,03-5912.,03-5914.,03-6011.,03-6231.
Citation404 F.3d 404
PartiesSharon ISABEL; Richard Parker; Gregory Sanders; Walter Williams, Jr., Plaintiffs-Appellees/Cross-Appellants, v. CITY OF MEMPHIS, Defendant-Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Louis P. Britt III, Thomas J. Walsh, Jr., Ford & Harrison, Memphis, Tennessee, for Appellant. David M. Sullivan, Memphis, Tennessee, for Appellees. ON BRIEF: Louis P. Britt III, Thomas J. Walsh, Jr., Ford & Harrison, Memphis, Tennessee, J. Matthew Stephens, Lawrence & Russell, Memphis, Tennessee, for Appellant. David M. Sullivan, Memphis, Tennessee, for Appellees.

Before: MARTIN and BATCHELDER, Circuit Judges; O'MEARA, District Judge.*

MARTIN, J., delivered the opinion of the court, in which O'MEARA, D.J., joined. BATCHELDER, J., (pp. 416-418), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

African-American sergeants in the Memphis Police Department brought suit against the City of Memphis for engaging in discriminatory promotions in violation of Title VII of the Civil Rights Act of 1964. The district court found that the City's written test — specifically, the test's cut-off score — discriminated against African-American candidates. In the remedy phase, the court promoted the sergeants to lieutenant and awarded back pay. The court also awarded attorney fees and stayed enforcement of its judgment pending this appeal. The City appeals the district court's finding of discrimination, choice of remedy, and award of attorney fees; the sergeants, on cross-appeal, contest the stay.

I.

In July of 2000, one hundred twenty sergeants competed for promotion to lieutenant. Of those, sixty-three were black and fifty-seven were white. The City informed the candidates that the promotional process would consist of four components: (1) a written test, (2) a practical exercise test, (3) performance evaluations for the previous two years, and (4) seniority points. These four components would account for twenty percent, fifty percent, twenty percent, and ten percent, respectively, of each candidate's total score. Those who passed the written test would proceed to the next three components; those who did not pass would not be invited to continue in the process. The City also informed the candidates that it would create a list, in descending order, of the candidates' total scores, and would make promotions based on the ranking of the total scores.

The written test was developed by a private consultant and managed by an industrial psychologist, Dr. Mark Jones, who also developed the City's written test for the 1996 promotions. In developing the 2000 test, Dr. Jones relied on the assistance of Memphis police officers who were identified as having expertise in their profession. Dr. Jones provided the officers with "training on how to construct a good test item," and the officers drafted items for questions by identifying what knowledge is necessary to performing an identified set of tasks as a lieutenant. Dr. Jones then created the questions and had the group of officers critique them for plausibility and reliability. Together, they estimated the percentage of minimally qualified candidates who could answer the questions correctly in order to impose a cutoff score.

This case arises from the City's use of the cutoff score, which has some relevant history. Long before the 2000 written test was developed, the City entered into a Memorandum of Understanding with the police department, in which it was agreed that in order to be eligible for promotion to lieutenant, a candidate must achieve a passing score of seventy on a written job knowledge test. Despite this agreement, Dr. Jones did not use or recommend using a cutoff score in the 1996 written test. Consequently, after the 1996 exam was administered, the police officers' union filed a grievance against Dr. Jones, alleging that he violated the Memorandum of Understanding. Based on his experience in 1996, Dr. Jones used the cutoff score in 2000 and failed all candidates who scored below seventy on the written test.

As a result, not enough minority candidates in proportion to nonminority candidates passed the test. This result violated the Equal Employment Opportunity Commission's four-fifths rule. The four-fifths rule, found at 29 C.F.R. § 1607.4(d), provides:

A selection rate for any race, sex, or ethnic group which is less than four-fifths (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.

The passing rate of African-Americans was less than four-fifths of the passing rate of nonminorities. To avoid such adverse impact, Dr. Jones lowered the cutoff score by four points, to sixty-six. Dr. Jones also eliminated nine of the test questions because he deemed them faulty; he gave all candidates credit for answering the questions correctly so that scores would remain on a one hundred-point scale.

Under the new cutoff score, ninety-eight candidates passed the test. Of those, fifty-one were white and forty-seven were black.

All parties agree that this result did not violate the Commission's four-fifths rule; however, other statistical analyses — including the T-test and the Z-test — did show an adverse impact. Under the T-test, which measures the difference in mean scores between minority and nonminority candidates, minority candidates' mean score was 69.17 while the white candidates' mean score was 75.59; the difference, 6.42, was described by plaintiffs' expert, Dr. Richard Deshon, as large. Under the Z-test, which measures statistical success across groups, white candidates passed at a rate of 90% while minority candidates passed at a rate of 74.6%. Dr. Deshon testified that the 15.4% difference is statistically significant. Thus, even though the written test did not violate the Commission's four-fifths rule, alternative analyses showed that the success differential between minority and nonminority candidates was statistically significant.

After the written test results were tallied and the candidates were ranked, the top ninety-eight candidates were invited to continue in the promotional process. The ranking order created by the written test scores served as the initial de facto order in which passing candidates were promoted to lieutenant.

Problems resulted from ranking candidates based on their written test scores. These problems concerned the accuracy of the test in approximating job performance and are illustrated by two examples presented by plaintiffs at trial. In one example, a non-minority candidate who received the same initial score on the written test as two of the plaintiffs, and presumably would not have been eligible to proceed to the next rounds of the promotion process, was determined to be eligible for promotion after the City imposed the cutoff score of sixty-six and gave full credit for the nine faulty questions. Once all the components of the promotional process were tallied, this candidate was ranked as the second most qualified for promotion. This candidate was only barely eligible based on the written test scores to proceed in the promotion process, yet she received the second highest total score and ranking in the pool of candidates.

In another example, thirteen candidates who placed very low in the ranking order had to be retroactively promoted and issued back pay because the candidates' performances on the practical exercise — a video component which was administered late in the process — required the City to drastically adjust the rankings. The City granted those thirteen candidates back pay and seniority points retroactive as of July 12, 2000, the date that the first pool of candidates was promoted to lieutenant.

The four plaintiffs failed the written test. They each received scores below 66 — Sanders, 65; Isabel, 64; Williams, 63; and Parker, 57 — and were ranked 110, 111,112, and 113, respectively; thus, they were not allowed to proceed to the subsequent promotional assessments. Subsequently, plaintiffs filed discrimination charges against the City.

Incidentally, this is not the first time that the City has faced discrimination-based challenges to the July 2000 promotion process. During the administration of the July 2000 test, the City was informed that the practical exercise component of the test for promotion to sergeant had been compromised due to the advance release of unauthorized study materials. The City denied that the test component had been compromised and continued to administer the test to its completion. When members of the news media produced copies of the test while it was still being administered, the City admitted that the practical exercise component had been compromised. The City eliminated that component from the July 2000 promotional process and increased the weight of the written test and the performance evaluations.

Subsequently, African-American and Hispanic-American police officers who were vying for promotion to sergeant filed claims of discrimination, alleging that the City intentionally discriminated against them by eliminating the practical exercise component and by increasing the weight of the written test after the promotional process had been completed. They requested that the sergeants who were awarded promotions based on the July 2000 tests be required to compete in a new promotional process, and that any sergeant shown to have received, used, and benefitted from unauthorized study materials be disqualified from competing in the new promotional process. They succeeded and were provided the requested relief. See Johnson v. City of...

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