Howe v. City of Akron, 091715 FED6, 13-4172

Docket Nº:13-4172, 13-4268, 14-3352
Party Name:William Howe, et al., Plaintiffs-Appellees/Cross-Appellants, v. City of Akron, Defendant-Appellant/Cross-Appellee.
Attorney:Benjamin C. Sass
Judge Panel:Before: MOORE and COOK, Circuit Judges; COHN, District Judge
Case Date:September 17, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

William Howe, et al., Plaintiffs-Appellees/Cross-Appellants,


City of Akron, Defendant-Appellant/Cross-Appellee.

Nos. 13-4172, 13-4268, 14-3352

United States Court of Appeals, Sixth Circuit

September 17, 2015

Argued: June 17, 2015

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:06-cv-02779-John R. Adams, District Judge.


Benjamin C. Sassé, TUCKER ELLIS LLP, Cleveland, Ohio, for Appellant/Cross-Appellee.

Bruce B. Elfvin, ELFVIN & BESSER, Cleveland, Ohio, for Appellees/Cross-Appellants.


Benjamin C. Sassé, Irene C. Keyse-Walker, TUCKER ELLIS LLP, Cleveland, Ohio, Cheri B. Cunningtham, Patricia Ambrose-Rubright, Michael J. Defibaugh, CITY OF AKRON, Akron, Ohio, Aretta K. Bernard, Karen D. Adinolfi, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellant/Cross-Appellee.

Bruce B. Elfvin, Barbara Kaye Besser, Stuart Torch, ELFVIN & BESSER, Cleveland, Ohio, Dennis R. Thompson, Christy B. Bishop, THOMPSON & BISHOP LAW OFFICES, Akron, Ohio, for Appellees/Cross-Appellants.

Before: MOORE and COOK, Circuit Judges; COHN, District Judge [*]



In 2004, Defendant-Appellant City of Akron administered promotional examinations for firefighters for the ranks of Lieutenant and Captain. The Plaintiffs-Appellees are Akron firefighters who took the examinations, but were not promoted. They filed this lawsuit, alleging that the promotional process disparately impacted firefighters over the age of forty in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Ohio Revised Code §§ 4112.02, .14, and .99. In addition, they allege that the Lieutenant promotional process adversely impacted African-American applicants, and the Captain promotional process adversely impacted Caucasian candidates in violation of Title VII, 42 U.S.C. § 2000e et seq., and Ohio Revised Code § 4112.02(A).

On December 23, 2008, a jury found that the two promotional processes adversely impacted applicants over the age of forty, and that the exams and promotional processes were not justified by business necessity. On October 2, 2009, the district court entered findings of fact and conclusions of law consistent with the jury's verdict with respect to the Plaintiffs' Title VII race-discrimination claims, finding that Akron's promotional process adversely impacted African-American Lieutenant candidates and Caucasian Captain candidates. Following the parties' post-judgment motions, the district court ordered a new trial on the sole issue of damages. On August 30, 2013, after a retrial, the district court entered an award of back pay in the amount of $616, 217.75. On March 27, 2014, the district court entered a permanent injunction and appointed a court monitor.

The parties have been litigating this case with remarkable vigor and venom since 2008. After two trials and multiple appeals, the parties remain unwilling to settle their differences. Akron now appeals the liability judgment, back-pay award, permanent injunction, and the appointment of a court monitor. The Plaintiffs have cross-appealed the district court's back-pay award, and argue that Akron has forfeited any challenge to the liability judgment because of this court's opinion in Howe v. City of Akron ("Howe I "), 723 F.3d 651 (6th Cir. 2013). Both parties seek-at the very least-a new trial on the issue of back pay and reassignment of the case to a different district judge.

For the reasons expressed in this opinion, we AFFIRM the liability judgment. However, we REVERSE the back-pay award and REMAND the case for reassignment to a different district judge and a new trial on the issue of back pay. In addition, we MODIFY the district court's order appointing a court monitor to limit the court monitor's involvement to one promotional cycle.


A. Akron's 2004 Promotional Process

The Plaintiffs are all members of the Akron Fire Department who took the 2004 promotion exam for either the rank of Lieutenant or Captain. Their claims arise out of the results of the Akron Fire Department's 2004 promotional process.

Akron hired E.B. Jacobs LLC to develop, administer, and score the December 2004 Lieutenant and Captain promotional exams for the Akron Fire Department. R. 277 at 7 (Findings of Fact and Conclusions of Law ("FFCL") ¶¶ 70–71) (Page ID #7742). Each examination included a 100-question multiple-choice component about technical job requirements. Id. (FFCL ¶ 72). In addition to the written component, candidates for the Lieutenant position had to complete "a written work sample exercise" and undergo two oral assessments, including "a subordinate conference and incident command." Id. (FFCL ¶ 73). The Captain promotional examination had three oral exercises: "a subordinate conference, group exercise[, ] and [an] incident command." Id. at 8 (FFCL ¶ 74) (Page ID #7743).

After the examiners scored the exams, they converted the scores to a scale for which 100 was the highest score, and then created lists of eligible candidates for promotion. To be eligible for a promotion, the candidate had to achieve a final average test score of at least 70%. R. 80 at 10 (Def.'s Mot. for Summ. J.) (Page ID #513). The test administrators combined the written and oral test scores and standardized those scores by converting them to a ninety-point scale. R. 196 at 84 (Trial Tr. Vol. 3) (Page ID #4882); R. 211 at 141 (Trial Tr. Vol. 8) (Page ID #5916). Next, the Fire Department awarded up to ten additional points based on seniority to the candidates' final test scores, and then the candidates were ranked in order of the combination of their test score plus seniority. R. 196 at 83 (Trial Tr. Vol. 3) (Page ID #4881); R. 211 at 141 (Trial Tr. Vol. 8) (Page ID #5916). Candidates with the highest scores were at the top of the list; candidates with the lowest scores were at the bottom. See R. 212 at 127 (Trial Tr. Vol. 9) (Page ID #6164). This final list was called the "eligibility list." R. 99 at 11 (Pls.' Resp. in Opp'n to Def.'s Mot. for Summ. J.) (Page ID #2517).

When there was a vacant Lieutenant or Captain position, the Personnel Director for the Fire Department submitted a certified list of candidates to the Mayor, which included the names of those candidates with the three highest scores on the eligibility list-the so-called "Rule of Three." R. 213 at 178 (Tr. Trial Vol. 7) (Page ID #6502). Next, the Personnel Director interviewed the three candidates before submitting a recommendation about whom among the three candidates the Mayor should promote to the vacant position. Id.; R. 212 at 128 (Tr. Trial Vol. 9) (Page ID #6165). To fill the next available vacancy, the Personnel Director selected the top three names on the eligibility list, and the interview process began anew. R. 213 at 182–84 (Trial Tr. Vol. 7) (Page ID #6506–08). If a candidate was interviewed and passed over three times, then his or her name would be removed from the list. R. 99 at 11 (Pls.' Opp'n to Def.'s Mot. for Summ. J.) (Page ID #2517). Under this system, it is possible that a candidate with the top score might never receive a promotion. Id.

On April 5, 2005, the Akron Civil Service Commission completed the eligibility list, which remained active for two years. R. 277 at 8 (FFCL ¶¶ 75–76) (Page ID #7743). During that two-year period, twenty-eight candidates were promoted to the rank of Lieutenant and twelve to the rank of Captain. Id. (FFCL ¶¶ 78–79). Of the twenty-eight candidates who became Lieutenants only three were African Americans. Id. (FFCL ¶ 78). Of those twelve who became Captains seven were Caucasians. Id. (FFCL ¶ 79–80). The following Table represents the pass and promotion rates for each rank and protected group at issue:



Pass Rate

Promotion Rate



76% (29/38)

24% (7/29)


87% (55/63)

38% (21/55)


85% (69/81)

36% (25/69)


75% (15/20)

20% (3/15)



81% (26/32)

27% (7/26)


78% (7/9)

71% (5/7)

Howe I, 723 F.3d at 656.

B. The Claims

On November 16, 2006, the Plaintiffs filed this lawsuit, alleging age and race discrimination in violation of federal statutory law. See R. 1 at 9–10 (Compl. ¶¶ 30–37) (Page ID #9–10). On October 19, 2007, the Plaintiffs amended their complaint to include claims of age and race discrimination in violation of Ohio law and violations of the Equal Protection Clause. R. 23 at 12–16 (1st Amend. Compl. ¶¶ 49–68) (Page ID #147–51).

The Age-Discrimination Claims.

Eleven plaintiffs, Mike Reed, Brenda Chapman, Michael Harvey, William Roy Wilkinson, Jeffrey Layne, James Farina, Jeff Schueller, Jerry Elie, Frank Poletta, Kerry Briggs, and Bruce Clough allege that the promotional process adversely impacted candidates for the rank of Lieutenant who were over the age of forty. See R. 277 at 1– 5 (FFCL ¶¶ 1–47) (Page ID #7736–40). In Counts I, III, and V, the Plaintiffs allege that the promotional exams had an adverse impact on twenty-three candidates for promotion to the ranks of Lieutenant and Captain because of their age in violation of the ADEA, 29 U.S.C. § 621 et seq., and Ohio Revised Code §§ 4112.02, .14, and .99. R. 23 at 11–13 (1st Amend. Compl. ¶¶ 45–46, 49–50, 53–54) (Page ID #146–48). Counts II, IV, and VI allege that the candidates for promotion to the rank of Lieutenant and Captain were subjected to disparate treatment because of their age "in the administration and scoring of the promotional examinations" in violation of the ADEA, 29 U.S.C. §§ 621 et seq., and Ohio Revised Code §§ 4112.02, .14, and .99. Id. (1st Amend. Compl. ¶¶ 47–48, 51–52...

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