Brunet v. City of Columbus, No. C-2-84-1973.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Writing for the Court: Eileen A. Groves, Asst. City Atty., Columbus, Ohio, for defendants
• Citation: 642 F. Supp. 1214
• Parties: Ann BRUNET, et al., Plaintiffs, v. CITY OF COLUMBUS, et al., Defendants.
• Docket Number: No. C-2-84-1973.
• Decision Date: 14 July 1986

642 F. Supp. 1214

Ann BRUNET, et al., Plaintiffs,
v.
CITY OF COLUMBUS, et al., Defendants.

No. C-2-84-1973.

United States District Court, S.D. Ohio, E.D.

May 13, 1986.

Supplemental opinion and order May 30, 1986.

On motion to stay July 14, 1986.

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Alexander Spater and Kathaleen Schulte, Spater, Gittes & Terzian, Columbus, Ohio, for plaintiffs

Eileen A. Groves, Asst. City Atty., Columbus, Ohio, for defendants.

OPINION AND ORDER

KINNEARY, District Judge.

In this action, the named plaintiffs and the class of similarly situated women that they represent challenge certain parts of the tests used by the City of Columbus to select entry-level firefighters since 1979. Plaintiffs Ann Brunet, Lynn Shearrow, Rebecca Schumacher and Edwina Hornung took the tests administered in 1980 and 1984. None of the plaintiffs was selected as a firefighter. Plaintiffs contend in this litigation that they were subjected to discriminatory tests in 1980 and 1984. The defendants are the City of Columbus; the Columbus Civil Service Commission; Dana Rinehart, Mayor of Columbus; and Alphonso Montgomery, Safety Director. For convenience, the defendants are often referred to as "the City". This action was originally brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; later the complaint was amended to include a claim under 42 U.S.C. § 1983. Plaintiffs seek injunctive and backpay relief on behalf of themselves and the class of women they represent.

Plaintiffs Shearrow, Schumacher and Hornung applied for and took the firefighter selection tests in 1980. Based upon their scores on the exam, plaintiffs were placed upon a rank-ordered list of white applicants, to be selected for further consideration in order from that list. Pursuant to this Court's Decree in Dozier v. Chupka, 395 F.Supp. 836 (S.D.Oh.1975) (Kinneary, J.), the City has maintained dual hiring lists for black and white applicants for firefighter and one-for-one hiring from those lists to remedy past racial discrimination. Of a total of 626 applicants ranked on the 1980 list, Shearrow ranked 193, Hornung ranked 319, and Schumacher ranked 571. Jt. Ex. 1. Plaintiffs Shearrow and Schumacher timely filed charges of discrimination

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with the Ohio Civil Rights Commission, Jt. Ex. 30-31, and received right-to-sue letters from the Equal Employment Opportunity Commission. Tr. 214.¹

Plaintiff Ann Brunet took the entry-level firefighter test held in 1984. She was ranked 464 on the list of non-black applicants. Jt. Ex. 5. Like the other plaintiffs, she was not selected as a firefighter. She timely filed a charge of discrimination and received a right-to-sue letter. Jt. Ex. 32, 26.

In both 1980 and 1984, the firefighter examination consisted of a written examination and a physical test. In 1980, the written test consisted of four sub-tests: a reading comprehension test, a mechanical reasoning test, and two psychological profiles. Stip. # 11. The reading comprehension test was pass/fail; the remaining three tests were scored, and weighted equally to make up 70% of an applicant's total score. Stip. # 12. The physical test consisted of seven events, six of which were scored. Timed scores were used to compute a physical exam score which constituted 30% of an applicant's total score. Stip. # 15. In 1984, a few changes were made, but the general approach remained the same. The written test consisted of a reading comprehension test and mechanical reasoning test, both of which were scored, and weighted equally to constitute 70% of an applicant's total score. Stip. # 31. The physical test was composed of the same events as in 1980 with the exception of one event, which was dropped. As in 1980, the score on the physical test constituted 30% of an applicant's total score. Stip. # 35.

In both years, applicants were ranked in order of their total score on separate eligibility lists for white and black applicants. Stip. # 23, 36. From time to time, applicants were taken from the lists in order of their rank to be certified to the Columbus Director of Public Safety for consideration for appointment as firefighters. Before being so certified, however, in both 1980 and 1984, applicants were required to pass a ladder test—which involved climbing a ladder to a height of five stories and descending—and a bicycle ergometer test—which measured heart rate in response to physical stress. Stip. # 24-26, 37. In addition, applicants were required to pass a medical examination and a background check, and to undergo an interview with a board comprised of members of the Division of Fire. Stip. # 27, 37. Applicants who met these requirements were then appointed as firefighters, as necessary, in the order of the ranking upon the dual lists. Stip. # 28, 38. During the life of the 1980 lists, a total of 109 applicants were appointed as firefighters, four of whom were female. Stip. # 29. One hundred and twenty-six appointments, including two females, were made from the 1984 list. Stip. # 39.

Plaintiffs challenge two components of the firefighter examination: the physical test and the mechanical reasoning test, as discriminatory against female applicants. Plaintiffs contend that the lower scores earned by female applicants on these two components contributed substantially to lower total scores, with the result that fewer female applicants were ultimately selected. Further, they contend, these test components have not been shown by the City to reflect accurately the actual requirements of the job of firefighter.

In their amended complaint, plaintiffs set forth two legal theories. First, they contend that the tests employed by the City have an adverse impact upon female applicants and are not job related. First Amended Complaint, ¶ 6. This is a theory of prohibited disparate impact under Title VII. Second, plaintiffs contend that the discriminatory acts of the defendants are intentional and violate § 1983. Plaintiffs

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did not seriously pursue the claim of intentional discrimination at trial or in their post-trial memorandum. In Part I of this Opinion, the Court briefly states its reasons for concluding that plaintiffs have failed to produce sufficient evidence to justify a finding that the defendants engaged in intentional discrimination against women in connection with recruitment of firefighters

This leaves plaintiffs' adverse impact theory for consideration. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) the Supreme Court described the burdens of the parties in such a disparate impact case as follows:

In Griggs v. Duke Power Co., 401 U.S. 424 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets "the burden of showing that any given requirement has ... a manifest relationship to the employment in question." Id., at 432 91 S.Ct. at 854. This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If an employer does then meet the burden of proving that its tests are "job related," it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in "efficient and trustworthy workmanship." Id., at 801 93 S.Ct. at 1823.

Id., at 425, 95 S.Ct. at 2375; accord, Harless v. Duck, 619 F.2d 611, 616 n. 6 (6th Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 212, 66 L.Ed.2d 92 (1980). The burdens are identical in a case involving alleged discrimination on the basis of sex. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977).

The defendants have argued that the plaintiff class has failed to meet its initial burden of showing adverse impact from either the 1980 or 1984 examinations. Upon consideration of the evidence and the arguments of the parties, the Court concludes, in Part II of this Opinion, that the defendants' arguments are partially meritorious. With respect to the 1980 examination, female applicants who had completed the testing process were selected at essentially the same rate as were similarly situated male applicants. In the judgment of the Court, this fact is fatal to any claim that the 1980 testing and selection process had an adverse impact upon female applicants. However, the Court further concludes that plaintiffs have carried their initial burden of showing that the 1984 testing and examination process had an adverse impact upon female applicants. As a result of these determinations, only plaintiffs' Title VII claim regarding the 1984 examination remains for consideration.

As a result of plaintiffs' demonstration of adverse impact in the 1984 firefighter examination, it becomes defendants' burden to show that the tests reflect the actual requirements of the job. This burden is often expressed by saying that the defendants must demonstrate that the test is job-related or, equivalently, valid. Having considered carefully the testimony at trial, including the testimony of the parties' respective expert witnesses, and having reviewed the documents submitted as exhibits, the Court concludes, in Part III of this Opinion, that the defendants have failed to demonstrate the job-relatedness of the 1984 physical examination. On the other hand, the Court further concludes that defendants have adequately justified the mechanical...