Howe v. the City of Akron

• Citation: 111 Fair Empl.Prac.Cas. (BNA) 583,789 F.Supp.2d 786
• Decision Date: 21 March 2011
• Docket Number: Case No. 5:06CV2779.
• Parties: William HOWE, et al., Plaintiffs,v.The CITY OF AKRON, Defendant.
• Court: U.S. District Court — Northern District of Ohio

789 F.Supp.2d 786

111 Fair Empl.Prac.Cas. (BNA) 583

William HOWE, et al., Plaintiffs,

v.The CITY OF AKRON, Defendant.

Case No. 5:06CV2779.

United States District Court,N.D. Ohio,Eastern Division.

Dec. 30, 2010.Order Denying Motion to Amend March 21, 2011.

Christy B. Bishop, Dennis R. Thompson, Thompson & Bishop, Akron, OH, Barbara Kaye Besser, Bruce B. Elfvin, Stuart G. Torch, Elfvin & Besser, Cleveland, OH, for Plaintiffs.Irene C. Keyse–Walker, Karen E. Ross, Tucker, Ellis & West, Cleveland, OH, Patricia C. Ambrose–Rubright, Michael J. Defibaugh, Akron, OH, for Defendant.

MEMORANDUM OF OPINION

JOHN R. ADAMS, District Judge.

This action is before the Court upon plaintiffs' Motion Pursuant to Fed.R.Civ.P. 59(e) to Alter or Amend the Judgment in This Case (Doc. 280). Plaintiffs request that the Court alter or amend the Judgment (Doc. 278), entered on October 2, 2009, to add 11 items. For the reasons set forth in section II below, Doc. 280 is GRANTED IN PART.

This action is also before the Court upon defendant's Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial or Remittitur (Fed.R.Civ.P. 50(b) and 59) (Doc. 282). In its Motion for Judgment as a Matter of Law, the defendant renews its motion with respect to plaintiffs' state and federal age and race discrimination claims. In addition and in the alternative, the defendant moves for a new trial. Even if the Court declines to order a new trial, the defendant requests remittitur of the damages to ensure the damages properly reflect the evidence in the record. For the reasons set forth in section III below, the Renewed Motion for Judgment as a Matter of Law is DENIED. The Court will not disturb the jury's verdict as to liability. The Verdicts (Doc. 237), however, provide for uniform past and future monetary awards regardless of whether the individual passed, was promoted, or ready to retire. This amply demonstrates that the jury lost its way on the issue of damages. Therefore, the Court GRANTS a new trial solely on damages.

Furthermore, this action is before the Court upon defendant's Motion to Alter or Amend or, in the Alternative, for a New Trial or Remittitur on Plaintiffs' Title VII Claims (Fed.R.Civ.P. 59) (Doc. 283). Defendant moves the Court to alter or amend the Judgment (Doc. 278), entered on October 2, 2009, finding in favor of the plaintiffs on their Title VII race discrimination/disparate impact claim. In addition and in the alternative, the defendant moves for a new trial or a remittitur of excessive damage awards. For the reasons set forth in section IV below, Doc. 283 is GRANTED IN PART. The Court grants a new trial solely on damages.

I.

Plaintiffs are all firefighter/medics for defendant City of Akron's Division of Fire (“AFD”). In December 2004, the defendant conducted promotional examinations for the AFD. Plaintiffs participated in the promotional selection process seeking promotions to either the rank of Lieutenant or Captain. The eligibility lists for each rank were established by the City of Akron Civil Service Commission on April 4, 2005. The eligibility lists for each rank remained active for two years.

In the performance of the testing portion of the promotion process, the defendant retained the services of a testing consultant, E.B. Jacobs, LLC (“EBJ”). EBJ was employed to prepare, administer and score the promotional examinations for the ranks of Lieutenant and Captain. Each promotional examination included a technical job knowledge examination consisting of 100 multiple-choice questions. The promotional examination for the rank of Lieutenant also included two oral assessment exercises: a subordinate conference and incident command. The Lieutenant exam also included a written work sample exercise. The promotional examination for the rank of Captain also included three oral assessment exercises, consisting of a subordinate conference, group exercise and incident command. 101 applicants completed the Lieutenant exam and 41 applicants completed the Captain examination. Selections for promotion are made from each respective eligibility list under a “Rule of Three,” which requires that for each vacant position, the three top-ranked candidates are considered for the vacancy.¹ Promotion selections for each vacancy are drawn from any of the three candidates under consideration for that position.

Plaintiff Bradley Carr took and passed the Captain's examination, but was not promoted. He is Caucasian and 40 years of age or over. Plaintiff Jerry Elie took and failed the Lieutenant's examination. He is African–American and 40 years of age or over. On or about January 25, 2006, Carr and Elie filed separate charges alleging race and age discrimination with the Equal Employment Opportunity Commission (“EEOC”). See Docs. 80–33 at 9–10 ² and 80–33 at 21–22. They filed their charges on behalf of themselves and “all others similarly situated.” See, e.g., Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1198–99 (10th Cir.2004) (applying single filing rule to case involving 26 plaintiffs).

On April 7, 2006, the plaintiffs filed William Howe, et al. v. The City of Akron, Summit County, Ohio Court of Common Pleas Case No. CV–2006–04–2310. On November 16, 2006, the plaintiffs filed the case at bar under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), against the defendant. On October 17, 2007, this Court granted the plaintiffs leave to file a First Amended Complaint that includes their pendent state law claims. See Order (Doc. 22). Thereafter, the plaintiffs dismissed the state case without prejudice pursuant to Ohio R. Civ. P. 41(A)(1)(a). The First Amended Complaint (Doc. 23) filed in the case at bar contains 12 counts.

Count I—Age Discrimination, disparate impact, 29 U.S.C. § 626, et seq.

Count III—Age Discrimination, disparate impact, Ohio Rev. Code § 4112.14

Count V—Age Discrimination, disparate impact, Ohio Rev. Code § 4112.02 and 4112.99

In these counts, 23 of the plaintiffs ³ allege that the promotional examinations for the ranks of Lieutenant and Captain had an illegal and impermissible adverse impact on firefighters on the basis of their age. ¶¶ 46, 50, and 54. No claim was specifically brought or pled under Ohio Rev.Code § 4112.02(N), which has a self-contained limitations period of 180 days.⁴

Count II—Age Discrimination, disparate treatment, 29 U.S.C. § 626, et seq.

Count IV—Age Discrimination, disparate treatment, Ohio Rev. Code § 4112.14

Count VI—Age Discrimination, disparate treatment, Ohio Rev. Code § 4112.02 and 4112.99

In these counts, the same 23 plaintiffs as in Counts I, III, and V allege that older firefighter candidates for promotion for both the rank of Lieutenant and Captain were subjected to disparate treatment on the basis of their age in the administration and scoring of the promotional examinations. ¶¶ 48, 52, and 56.

Count VII—Race Discrimination, disparate impact (Lieutenant's examination), 42 U.S.C. § 2000e, et seq.

Count IX—Race Discrimination, disparate impact (Lieutenant's examination), Ohio Rev. Code § 4112.02(A)

In these counts, three of the plaintiffs ⁵ allege that the promotional examinations for the rank of Lieutenant had an illegal and impermissible adverse impact towards African–American firefighters on the basis of their race. ¶¶ 58 and 62.

Count VIII—Race Discrimination, disparate impact (Captain's examination), 42 U.S.C. § 2000e, et seq.

Count X—Race Discrimination, disparate impact (Captain's examination), Ohio Rev. Code § 4112.02

In these counts, 12 of the plaintiffs ⁶ allege that the promotional examinations for the rank of Captain had an illegal and impermissible adverse impact towards Caucasian firefighters on the basis of their race. ¶¶ 60 and 64.

Count XI—42 U.S.C. § 1983, Equal Protection

In this count, all 30 of the plaintiffs ⁷ allege that by administering promotional examinations that have no rational relationship to the ranks for which the defendant purportedly tested, defendant has violated the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. ¶ 66.

Count XII—42 U.S.C. § 1983, Equal Protection

In this count, 15 of the plaintiffs ⁸ allege that by preparing, administering and scoring promotional examinations that have an adverse impact by race and the failure of the defendant to exercise reasonable care in the performance of the duties of preparation, administration and scoring of the promotional examinations, defendant has violated the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. ¶ 68.

Defendant filed a Motion for Summary Judgment (Doc. 80). It moved the Court for summary judgment on all claims contending, in sum: (1) that plaintiffs' claims under Title VII and the ADEA are time-barred by the applicable statute of limitations; (2) that no background evidence supports a reverse discrimination claim; (3) that plaintiffs' claims for race and age discrimination under Ohio Rev.Code § 4112.02 are time-barred by the 180–day statute of limitations; (4) that plaintiffs' claims for age discrimination under Ohio Rev. Code § 4112.14 must be dismissed because there is no evidence to support a claim on either examination, particularly Captain; (5) that the plaintiffs have failed to state a claim for any Section 1983 claim and lack any evidence to support any claim of intentional discrimination based on race, age or the Fourteenth Amendment; and (6) that, even if the plaintiffs could proceed with their adverse impact claims based on race or age, the defendant validated the 2004 Lieutenant's and Captain's examinations. Defendant stated at page 11 of its Motion for Summary Judgment:

The Sixth Circuit focuses on the passing rate when examining adverse impact even in promotional testing arenas. UBFF v. City of Akron, 81 F.3d 161 (6th Cir.1996); N.A.A.C.P. v. City of Mansfield, 866...