Bazile v. City of Hous.

• Decision Date: 06 February 2012
• Docket Number: Civil Action No. H–08–2404.
• Parties: Dwight BAZILE, et al., Plaintiffs, v. CITY OF HOUSTON, Defendant.
• Court: U.S. District Court — Southern District of Texas

858 F.Supp.2d 718

114 Fair Empl.Prac.Cas. (BNA) 596

Dwight BAZILE, et al., Plaintiffs,

v.CITY OF HOUSTON, Defendant.

Civil Action No. H–08–2404.

United States District Court,

S.D. Texas,

Houston Division.

Feb. 6, 2012.

Dennis R. Thompson, Christy B. Bishop, Thompson & Bishop, Akron, OH, Scott David Newar, Attorney at Law, Houston, TX, for Plaintiffs.

Lowell F. Denton, Clarissa Rodriguez, Elizabeth Maria Provencio, Denton Navarro et al., San Antonio, TX, Timothy James Higley, City of Houston, Legal Dept. Houston, TX, Edward Caldwell Dawson, Gregory S. Coleman, Kevin J. Terrazas, Yetter Coleman LLP, Austin, TX, Patrick M. Flynn, Richard Charles Mumey, Attorney at Law, Houston, TX, for Defendants.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

This Title VII disparate-impact suit challenges the City of Houston's system for promoting firefighters to the positions of captain and senior captain. Historically, the City has promoted firefighters based on their years of service with the Houston Fire Department (“HFD”) and their scores on a multiple-choice exam. The format and general content of that exam are set out in the Texas Local Government Code (“TLGC”) and in the collective bargaining agreement (“CBA”) between the City and the firefighters' union, the Houston Professional Fire Fighters Association (“HPFFA”). Seven black firefighters sued the City, alleging that the promotional exams for the captain and senior-captain positions were racially discriminatory, in violation of the Fourteenth Amendment, 42 U.S.C. § 1981, and Title VII, 42 U.S.C. § 2000e–2. After mediation in February and March 2010, the City and the seven firefighters reached a settlement that included a proposed consent decree. The decree would require the City to implement changes to the captain and senior-captain promotion exams in two phases. The first phase required minor changes to the November 2010 captain exam. The second phase required more significant changes to the May 2011 senior-captain exam that would apply to future captain and senior-captain exams. The HPFFA intervened in the lawsuit and objected because the proposed consent decree changed the exams in ways inconsistent with the TLGC and the CBA. The HPFFA contended that the City and the plaintiffs had not shown discrimination that would permit this court to approve the consent decree.

This court bifurcated the proceedings to resolve the HPFFA's objections. The first stage addressed the narrow set of changes proposed for the November 2010 captain exam. The second stage addressed the broader changes proposed for subsequent captain and senior-captain exams. In the first stage, this court, with the HPFFA's agreement, approved changes to the November exam. This opinion addresses the HPFFA's objections to the proposed changes to the future captain and senior-captain exams.

The HPFFA vigorously objects that the proposed changes involve “a far-reaching and wholesale restructuring of the entire promotional process that goes beyond anything plaintiffs have even alleged in this lawsuit” and “bypass both the long-established protections of state law and the union's protected role in being the sole, collective voice for the city's firefighters.” (Docket Entry No. 89, at 8). The City and the seven individual plaintiffs acknowledge that the changes are far-reaching but argue that they are needed to comply with federal antidiscrimination law. They argue that the current exam system is not “job related for the position[s] in question and consistent with business necessity” as required by 42 U.S.C. § 2000e–2(k)(1)(A)(i).

This court held an evidentiary hearing to consider the proposed changes to the May 2011 senior-captain exam and to future exams. The summary of the evidence shows the welter of expert opinions the parties presented on whether the existing format and content of the City's promotion exams for the captain and senior-captain positions have a disparate impact on African–American candidates; whether the existing exams are reliable and valid measures of the knowledge and qualities relevant to the promotion decisions; whether the existing exams are reliable and valid ways to compare candidates; and whether the proposed changes to the exams will provide reliable and valid exams and address disparate impact. The experts' testimony and submissions left the court with a sense of disquiet about the opinions expressed. The science of testing to measure and compare promotion-worthiness is admittedly imperfect. The expert witnesses, particularly for the City, acknowledged some errors and some incomplete aspects of their work in designing and administering the promotion exams. At best, all the witnesses' opinions amount to uncertain efforts to gauge how well different exam approaches measure, compare, and predict job performance. The analytical steps required by the applicable legal standards must be approached with a recognition of the limits of the expert testimony.

At the same time, courts clearly lack expertise in the area of testing validity. “ ‘The study of employment testing, although it has necessarily been adopted by the law as a result of Title VII and related statutes, is not primarily a legal subject.’ Because of the substantive difficulty of test validation, courts must take into account the expertise of test validation professionals.” Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 383 (2d Cir.2006) (quoting Guardians Ass'n of N.Y.C. Police Dep't, Inc. v. Civil Serv. Comm'n of City of N.Y., 630 F.2d 79, 89 (2d Cir.1980)). The combination of the lack of judicial expertise in this area and the limits of the expertise of those who do have training and experience support a cautious and careful judicial approach.

Based on the parties' filings, the evidence, and the applicable law, this court finds that the City and the seven individual plaintiffs have shown that the captain and senior-captain exams violate Title VII. But this court also finds that some of the changes in the proposed consent decree violate the CBA and TLGC and that the City and the plaintiffs have not shown that all these changes are necessary to comply with Title VII. Based on these findings and conclusions, the proposed consent decree is accepted in part and denied in part. The use of situational-judgment questions and an assessment center are justified by the record evidence and are job-related and consistent with business necessity. But other parts of the proposed modified consent decree violate the TLGC and CBA, and the City and the plaintiffs have not shown that they are tailored to respond to the disparate impact alleged. Using the parties' descriptions of the proposed changes, the provisions that violate the TLGC and CBA without the necessary justification in the record, and which this court does not accept, are as follows:

2. Job–Knowledge Written Test

— Pass/fail test (test designer to determine cut-off score)

— No rank-order list — Test designer may elect not to use any written job-knowledge cognitive test

3. Scenario–Based Computer–Objective Test

— Rank-order list from which all intended promotions to assessment center will be made ¹

4. Assessment Center

— Rank-order list

— Sliding bands based on test accuracy as determined by consultant

— Fire Chief will document reasons for the selection of each candidate within bands

— No Rule of Three

(Docket Entry No. 69–2, at 29).

The reasons for finding these aspects of the proposed changes to the promotion examinations invalid, and the remaining aspects supported by the record and the applicable law, are explained below. This opinion first describes the promotion system in place before any changes; reviews the expert and other evidence relevant to assessing disparate impact; and analyzes whether, under the applicable law, the proposed settlement is tailored to remedying the disparate impact that is shown. A hearing is set for February 21, 2012, at 1:30 p.m. to address the issues that remain to be resolved and a timetable for doing so.

Finally, because the terminology used by the HFD and the industrial psychologists who served as experts in this case produced a number of acronyms and abbreviations, a list of the most commonly used is attached to this Memorandum and Opinion.

I. BackgroundA. The Houston Fire Department

The HFD has approximately 4,000 employees involved in firefighting. Ninety percent are in the Emergency Operations Division (“EOD”). Half of the EOD employees are at the “firefighter” level and perform “task-level jobs” such as retrieving and using fire hoses. The next rank above firefighter is “engineer operator” (“EO”). In addition to performing firefighters' tasks, EOs drive fire trucks and HFD ambulances and operate ladders and pumps. Firefighters outnumber EOs two-to-one. (Evidentiary Hr'g Tr. 115, Docket Entry No. 130).

Captains are ranked immediately above EOs. HFD captains are the “first line of supervisor position[s] in the fire department.” A captain supervises the operation of fire engines, which are smaller fire trucks that carry hoses and pump water. Each HFD fire station has at least one fire engine and one captain. A captain supervises an EO and two firefighters assigned to an engine. When a captain misses a day of work, an EO may “ride up” and perform the absent captain's job duties.

Senior captains are ranked immediately above captains. A senior captain supervises the operations of “ladder trucks,” which are large fire trucks with aerial ladders. Only half of the City's fire stations have a ladder truck with a senior captain in addition to a fire engine and captain. A senior captain may supervise up to eight firefighters, including EOs. When a senior captain misses a day of work, a captain may “ride up.”

During a fire emergency, a district chief—ranked above senior captain—is responsible for developing the firefighting strategy. The district chief may decide, for example, whether firefighters will enter a burning...