723 F.3d 651 (6th Cir. 2013), 11-3752, Howe v. City of Akron

• Docket Nº: 11-3752.
• Citation: 723 F.3d 651
• Opinion Judge: COLE, Circuit Judge.
• Party Name: William HOWE, et al., Plaintiffs-Appellees, v. CITY OF AKRON, Defendant-Appellant.
• Attorney: Irene C. Keyse-Walker, Tucker Ellis LLP, Cleveland, Ohio, for Appellant. Dennis R. Thompson, Thompson & Bishop Law Offices, Akron, Ohio, for Appellees. Irene C. Keyse-Walker, Benjamin C. Sass
• Judge Panel: Before: COLE and DONALD, Circuit Judges; RUSSELL, District Judge. [*]
• Case Date: July 22, 2013
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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723 F.3d 651 (6th Cir. 2013)

William HOWE, et al., Plaintiffs-Appellees,

v.

CITY OF AKRON, Defendant-Appellant.

No. 11-3752.

United States Court of Appeals, Sixth Circuit.

July 22, 2013

Argued: Jan. 17, 2013.

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ARGUED:

Irene C. Keyse-Walker, Tucker Ellis LLP, Cleveland, Ohio, for Appellant.

Dennis R. Thompson, Thompson & Bishop Law Offices, Akron, Ohio, for Appellees.

ON BRIEF:

Irene C. Keyse-Walker, Benjamin C. Sassé, Tucker Ellis LLP, Cleveland, Ohio, Cheri B. Cunningham, Patricia Ambrose-Rubright, Michael J. Defibaugh, City of Akron, Akron, Ohio, for Appellant.

Dennis R. Thompson, Christy B. Bishop, Thompson & Bishop Law Offices, Akron, Ohio, Bruce B. Elfvin, Barbara K. Besser, Stuart Torch, Elfvin & Besser, Cleveland, Ohio, for Appellees.

Before: COLE and DONALD, Circuit Judges; RUSSELL, District Judge. ^[*]

OPINION

COLE, Circuit Judge.

Defendant-Appellant City of Akron (" the City" ) appeals the district court's interlocutory order to promote eighteen Akron Fire Department (" AFD" ) firefighters. The order was issued after a jury trial resulted in verdicts and a judgment concluding that, under Title VII, the Age Discrimination in Employment Act (" ADEA" ) and Ohio law, the 2004 AFD firefighters' promotional exam adversely impacted twelve Caucasian Captain candidates on the basis of race, eight Lieutenant candidates on the basis of age, and three African-American Lieutenant candidates on the basis of both age and race. The City argues that (1) the injunction cannot stand because there is insufficient evidence to support a prima facie case of disparate impact liability; and (2) even if there is sufficient evidence for a prima facie case, the district court abused its discretion in issuing the injunction. Because the district court did not abuse its discretion in issuing the injunction, we affirm.

I.

A.

In December 2004, the City conducted promotional exams for the positions of Captain and Lieutenant in the Akron Fire Department. The two sets of exams were prepared, administered and scored by E.B. Jacobs, an outside testing consultant. Both the Lieutenant and Captain exams contained a 100-question multiple choice component on technical job knowledge and two oral assessment exercises. The Lieutenant exam also contained a written work-sample exercise. The Captain exam did not have a written exercise, but instead had an additional oral assessment involving a group exercise.

Promotion candidates were placed on an " eligibility list" in an ordered ranking. In order to be placed on the eligibility list at all, a candidate had to have a scaled score of at least seventy percent on the promotional exam. The scaled exam score was converted to a ninety-point scale, and then up to ten points were added, corresponding to the candidate's seniority level. The candidates were then ranked in order of their total scores, from highest to lowest, on the eligibility list.

The promotional process dictated that candidates be selected from the eligibility list according to the " Rule of Three," which " required that for each vacant position, the three top-ranked candidates [be] considered for the vacancy." When there was a single vacancy, the chief of the fire department was supposed to interview the three candidates and then select one to promote. When there were multiple vacancies,

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a number of candidates from the top of the list, equal to 1.4 times the number of vacancies, would be certified for consideration and the chief would choose from among them. In fact, all candidates were promoted congruent with their place in a " straight rank-ordering" based on written and oral exam results. Interviews were conducted, ostensibly pursuant to the Rule of Three, but it is unclear whether or how the interviews contributed to the promotion selections.

Exam pass rates and promotion rates were as follows:

Rank Class Pass Rate Promotion Rate

Lieutenant Over-40 76% (29/38) 24% (7/29)

Lieutenant Under-40 87% (55/63) 38% (21/55)

Lieutenant Caucasian 85% (69/81) 36% (25/69)

Lieutenant African-American 75% (15/20) 20% (3/15)

Captain Caucasian 81% (26/32) 27% (7/26)

Captain African-American 78% (7/9) 71% (5/7)

B. The firefighter plaintiffs initially brought twelve employment discrimination claims against the City, challenging the promotion selection processes. Counts I, III and V alleged disparate-impact age discrimination on the basis that the promotional exams for the ranks of Lieutenant and Captain had an adverse impact on twenty-three firefighters due to their age. 29 U.S.C. § 621 et seq. (" ADEA" ); Ohio Rev.Code Ann. §§ 4112.02, .14, .99. Counts II, IV and VI alleged disparate-treatment age discrimination on the basis that the same twenty-three candidates for promotion were subject to disparate treatment on the basis of their age in the administration and scoring of the promotional exam. 29 U.S.C. § 621 et seq. ; Ohio Rev.Code §§ 4112.02, .14, .99. Counts VII and IX alleged that the promotional exam for Lieutenant had an adverse impact on three African-American firefighters due to their race. 42 U.S.C. § 2000e et seq. (" Title VII" ); Ohio Rev.Code Ann. § 4112.02(A). Counts VIII and X alleged that the promotional exam for Captain had an adverse impact on twelve Caucasian firefighters due to their race. 42 U.S.C. § 2000e et seq. ; Ohio Rev.Code Ann. § 4112.02(A). Counts XI and XII, which the district court dismissed prior to trial, alleged violations of the Equal Protection Clause of the Fourteenth Amendment. A jury trial commenced on December 3, 2008. After the close of Plaintiffs' case, the parties stipulated to dismissal of Counts II, IV, and VI (the age discrimination disparate-treatment claims). At the close of all the evidence, Plaintiffs voluntarily dismissed the portions of Counts I, III and V (the age discrimination disparate-impact claims) that related to the exams for Captain rank. The district court denied the City's motion for judgment as a matter of law on the remaining claims, which were submitted to the jury. The jury found in favor of Plaintiffs on all remaining claims.¹ The district court entered a judgment in accordance with the jury's verdict. It concluded that the AFD's 2004 promotional exam adversely impacted twelve Caucasian Captain candidates on the basis of their race, adversely impacted three African- Page 657 American Lieutenant candidates on the basis of their race, and adversely impacted eleven Lieutenant candidates on the basis of their age. Each Lieutenant candidate was awarded $9,000 in compensatory damages and $72,000 in front pay. Each Captain candidate was awarded $10,000 in compensatory damages and, with one exception, $80,000 in front pay. The district court denied the City's renewed motion for judgment as a matter of law, and denied the City's motion for a new trial as to the issue of liability. The district court, however, granted the City's motion for a new trial solely on the issue of damages. The court held that " [i]n spite of the differing circumstances of each of the 23 plaintiffs, the jury awarded each Lieutenant candidate the same amount and each Captain candidate the same amount (with one exception as above)," thereby " fail[ing] to ... award damages based on the testimony of the individual Plaintiffs." At the new trial, the court pledged to also consider Plaintiffs' motion to alter or amend the judgment, in which Plaintiffs had requested, among other things, " equitable relief [ ] in the form of promotion to any prevailing Plaintiff electing such relief." At a pretrial conference on July 7, 2011, the district court said it would grant the motion for equitable relief by ordering promotions:

I was concerned [earlier] that other employees may be displaced; and ... [believed] perhaps an alternative would be a new test, which ... would be a more appropriate remedy.

However, circumstances have changed.... Promotions, it appears, are now feasible.... There are over 25 vacancies in the lieutenant position and there are 5 vacancies in the captain's position.

The court also cited its concern that the City could be " crippled" if no promotions were made until the end of all litigation. On July 13, 2011, the court issued an order requiring the City to promote Plaintiffs no later than July 18, 2011. The City appealed the preliminary injunction to this Court on July 14, 2011. Plaintiffs moved to dismiss the appeal on the grounds that the district court had not yet entered a final order and piecemeal appeals are disfavored. This Court denied their motion, noting that " [a]n order directing injunctive relief in an employment context, but that leaves damages remaining to be calculated, may be an appealable injunctive order." The new damages trial commenced as a bench trial on July 25, 2011. During trial, the court acknowledged that it had " discretion in the interim" (presumably between the issuance of the order and final judgment) to " revisit" its decision to promote Plaintiffs. Afterward, among other things, the City moved for judgment on partial findings. See Fed.R.Civ.P. 52(c). The district court denied the motion, " conclud[ing] that the better course is ... to render its rulings after the close of all the evidence, testimony, and the applicable law, and after the parties' post-trial submissions." The new damages trial concluded on November 28, 2012. The district court has yet to issue a final judgment. On interlocutory appeal, the City presents two objections to the preliminary injunction ordering promotions: (1) there is insufficient evidence to support a prima facie case of disparate impact liability; and (2) even if there is sufficient evidence for a prima facie case, the district court abused its discretion in issuing the injunction. I...