M.O.C.H.A. Soc'y, Inc. v. City of Buffalo

• Decision Date: 30 July 2012
• Docket Number: Docket Nos. 11–2184–cv, 10–2168–cv.
• Citation: 689 F.3d 263,115 Fair Empl.Prac.Cas. (BNA) 929
• Parties: M.O.C.H.A. SOCIETY, INC., Michael Brown, President, M.O.C.H.A. Society Inc., Willie Broadus, Robert Grice, Robert Jones, Walter Jones, Victor Muhammad, William Raspberry, John Tucker, individually and as representatives of African American firefighters employed by the City of Buffalo and the Buffalo Fire Department, who have been discriminated against by the promotional policies, Plaintiffs–Appellants, Otto Brewer, individually and as representative of African American firefighters previously employed by the City of Buffalo and the Buffalo Fire Department, who were terminated pursuant to the Drug Testing Policy of the City of Buffalo Department of Fire, Plaintiff, v. CITY OF BUFFALO, City of Buffalo, Department of Fire, Cornelius King, individually and as Commissioner, Department of Fire, John D. Sixt, individually and as Deputy Commissioner, Department of Fire, Defendants–Appellees. M.O.C.H.A. Society of Buffalo, Inc., Emanuel C. Cooper, Greg Pratchett, Russell Ross, Plaintiffs–Appellants, v. The City of Buffalo, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

689 F.3d 263

115 Fair Empl.Prac.Cas. (BNA) 929

M.O.C.H.A. SOCIETY, INC., Michael Brown, President, M.O.C.H.A. Society Inc., Willie Broadus, Robert Grice, Robert Jones, Walter Jones, Victor Muhammad, William Raspberry, John Tucker, individually and as representatives of African American firefighters employed by the City of Buffalo and the Buffalo Fire Department, who have been discriminated against by the promotional policies, Plaintiffs–Appellants,

Otto Brewer, individually and as representative of African American firefighters previously employed by the City of Buffalo and the Buffalo Fire Department, who were terminated pursuant to the Drug Testing Policy of the City of Buffalo Department of Fire, Plaintiff,

v.CITY OF BUFFALO, City of Buffalo, Department of Fire, Cornelius King, individually and as Commissioner, Department of Fire, John D. Sixt, individually and as Deputy Commissioner, Department of Fire, Defendants–Appellees.^*

M.O.C.H.A. Society of Buffalo, Inc., Emanuel C. Cooper, Greg Pratchett, Russell Ross, Plaintiffs–Appellants,

v.The City of Buffalo, Defendant–Appellee.

Docket Nos. 11–2184–cv, 10–2168–cv.

United States Court of Appeals,Second Circuit.

Argued: Nov. 15, 2011.

Decided: July 30, 2012.

Thomas S. Gill, Esq., Frederick, MD, for Plaintiffs–Appellants.

Joseph S. Brown (Joshua I. Feinstein, on the brief), Hodgson Russ LLP, Buffalo, NY, for Defendants–Appellees.

Before: KEARSE, JOHN M. WALKER, JR., and RAGGI, Circuit Judges.

Judge KEARSE dissents in a separate opinion.

REENA RAGGI, Circuit Judge:

Plaintiffs, M.O.C.H.A. (“Men of Color Helping All”) Society, Inc., and various named individuals, suing on behalf of themselves and as representatives of African American firefighters employed by the City of Buffalo (collectively, “M.O.C.H.A.”),¹ appeal two judgments entered by the United States District Court for the Western District of New York (John T. Curtin, Judge ) on May 14, 2010, and May 24, 2011, in favor of the City of Buffalo, its fire department, and the fire department's commissioner and deputy commissioner (collectively, “Buffalo”), on Title VII claims of race discrimination in making promotions to the rank of fire lieutenant based on 1998 and 2002 examinations that derived from a common statewide job analysis. Plaintiffs contend that, after conducting a bench trial, the district court erred in finding that Buffalo had successfully demonstrated that the test was job related and consistent with business necessity, despite the disparate impact of the 1998 examination on African American applicants. See M.O.C.H.A. Soc'y, Inc. v. City of Buffalo (“M.O.C.H.A. I”), No. 98–cv–99C, 2009 WL 604898 (W.D.N.Y. Mar. 9, 2009). Plaintiffs submit that the district court further erred in awarding defendants summary judgment on the disparate treatment challenge to the 1998 test, see M.O.C.H.A. Soc'y, Inc. v. City of Buffalo (“M.O.C.H.A. II”), No. 98–cv–99C, 2010 WL 1875735 (W.D.N.Y. May 10, 2010), and on the overall Title VII challenge to the 2002 test, see M.O.C.H.A. Soc'y, Inc. v. City of Buffalo (“M.O.C.H.A. III”), No. 03–cv–580–JTC, 2010 WL 1930654 (W.D.N.Y. May 12, 2010), based on a determination that plaintiffs were barred from further challenging the job relatedness and business necessity of the two similarly derived promotional examinations.

A common question runs through these appeals, prompting us to hear them in tandem and now to decide them in a single opinion: Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue? We answer that question in the affirmative on the record developed in these related cases. While employer-specific data may make it easier for an employer to carry his burden at the second step of Title VII analysis, such evidence is not required as a matter of law to support a factual finding of job relatedness and business necessity. Where, as here, the district court hears extensive evidence as to how an independent state agency (1) determined, based on empirical, expert, and anecdotal evidence drawn from fire departments across New York and the nation, that the job of fire lieutenant, wherever performed, involves common tasks requiring essentially the same skills, knowledge, abilities, and personal characteristics; and (2) developed a general test based on those findings, we conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo's use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity.²For this reason and others stated in this opinion, we affirm both challenged judgments in favor of defendants.

I. BackgroundA. The 1998 Examination

1. Test Development

In December 1997, Buffalo asked the New York State Civil Service Department (“Civil Service Department”), to create a promotional examination for the position of fire lieutenant in its fire department. SeeN.Y. Civ. Serv. Law § 23(2) (establishing that Civil Service Department shall prepare employment examinations for municipalities upon request). It was then standard practice for Buffalo to rely on the Civil Service Department for examinations for municipal civil service positions rather than to devise its own tests. ³ In making the request, Buffalo provided the Civil Service Department with its fire department's most recent job specifications for the fire lieutenant position, the position's anticipated salary level, and promotion eligibility criteria.⁴

Dr. Wendy Steinberg, an associate personnel examiner with the Civil Service Department, created the “Lower Level Fire Promotion” test series that was provided in response to Buffalo's request. Steinberg testified that this test series was devised for use in promoting candidates to various firefighting positions, including fire lieutenant, in fire departments across New York. Indeed, municipalities across New York used the test series for that purpose.

To create the Lower Level Fire Promotion test series, Steinberg spent three years, from 1994 to 1997, conducting a job analysis of firefighters of all ranks from fire departments across New York. Based on this analysis, she designed examinations for each titled position. Steinberg's job analysis had a dual focus: (1) the tasks firefighters perform and (2) the skills, knowledge, abilities, and personal characteristics (“SKAPs”) a person would be expected to possess on the very first day in a particular position. Steinberg testified as to how her job analysis was consistent with the joint standards of employment test design published by the American Psychological Association, the American Education Research Association, and the National Council on Measurement in Education, as well as with guidelines promulgated by the Equal Employment Opportunity Commission (“EEOC”).

In beginning her job analysis in 1994, Steinberg first collected job specifications from various New York fire departments for each submitted firefighting job title. From these specifications, she assembled a list of 190 identified tasks performed by firefighters of various ranks, which she reviewed with members of the Civil Service Department's Fire Advisory Committee (“Fire Advisory Committee”), a panel of experts on the administration of fire departments. Steinberg then used the task list to create a statewide survey that, in April 1995, asked firefighters to rank each identified task according to how critical it was to the performance of firefighters' specific jobs within their departments. With the Fire Advisory Committee's assistance, Steinberg also created a second survey that, in October 1996, asked firefighters to rank listed SKAPs based on how critical they were to the respondents' particular positions. Besides identifying the skills, knowledge, abilities, and personal characteristics necessary to perform the responsibilities of a specific job title, this survey was intended to provide a cross-reference for data obtained from the task survey.

The task and SKAP surveys were sent to every incumbent firefighter in New York, with the exception of those serving in New York City and Rochester. ⁵ Steinberg followed up with non-responsive survey recipients in order to maximize the data obtained. In the end, of 5,934 task surveys sent out, 2,502 responses were received. Of those surveys, 2,994 were sent to firefighters serving in the state's twelve largest jurisdictions (other than New York City and Rochester),⁶ from whom 1,218 responses were received. Seven hundred ninety-five of the surveys were sent to firefighters holding fire lieutenant positions, with 316 responding. The responses in all three of these categories exceeded the numbers required by accepted statistical methodologies to establish 95% confidence in the survey results.⁷ Similarly, of 5,934 SKAP surveys sent, 1,604 responses were received, a number also sufficient to obtain 95% statistical confidence. ⁸ By contrast, of 833 task surveys sent to Buffalo firefighters, only 68 responses were received, a number too low for the results to be reliable by themselves. Further, no Buffalo firefighter responded to the SKAP survey.

Upon receipt of survey responses from across New York, Steinberg grouped together the tasks identified as most critical to each firefighter title, including fire lieutenant. She performed a similar analysis of the SKAP survey responses and, with the assistance of other Civil Service Department staff, linked the most highly ranked SKAPs to corresponding highly ranked tasks. Steinberg then asked the Fire Advisory Committee to review and confirm the links drawn.

This process ultimately yielded six sets of task and SKAP categories that became the sub-test areas for the challenged fire lieutenant promotional examinations: (1) fire attack and suppression, (2) fire prevention, (3)...