Lander v. Montgomery County Bd. of Com'Rs, No. C-3-00-487.

Decision Date22 August 2001
Docket NumberNo. C-3-00-487.
Citation159 F.Supp.2d 1044
PartiesKeith LANDER, et al., Plaintiffs, v. MONTGOMERY COUNTY BOARD OF COMMISSIONERS, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

James R. Greene, III, Dayton, OH, for Plaintiffs.

John F. Krumholtz, Dayton, OH, for Defendants.

DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (DOC. # 2); PLAINTIFFS' MOTION FOR ORDER THAT NO BOND BE REQUIRED (DOC. # 3) OVERRULED, AS MOOT; PLAINTIFFS' MOTION IN LIMINE (DOC. # 7) OVERRULED; PLAINTIFFS' MOTION FOR DISCOVERY (DOC. # 9) OVERRULED, AS MOOT; PLAINTIFFS' MOTION FOR CONDITIONAL CLASS CERTIFICATION (DOC. # 15) OVERRULED; CONFERENCE CALL SET.

RICE, CHIEF JUDGE.

This litigation involves a challenge to the use of assessment tests to establish eligibility lists for promotions in the Montgomery County (Ohio) Public Works Department. The Plaintiffs are Montgomery County employees Keith Lander, Jeffrey A. Pryor, Levinsky Allen and James E. Williams. They allege that the assessment tests have a disparate impact on African Americans, who score significantly worse than Caucasian test takers. On September 25, 2000, the Plaintiffs filed a nine-count Complaint, asserting a variety of state and federal claims involving the testing process. (Complaint, Doc. # 1). Among other things, the Plaintiffs seek declaratory and injunctive relief. Named as Defendants in this action are the Montgomery County Board of Commissioners and a number of Montgomery County employees, who have been sued in their "individual" and "official" capacities.1 Pending before the Court are the following five Motions filed by the Plaintiffs: (1) a Motion for a Preliminary Injunction (Doc. # 2); (2) a Motion for an Order that no bond be required (Doc. # 3); (3) a Motion in Limine (Doc. # 7); (4) a Motion for Discovery (Doc. # 9); and (5) a Motion for Conditional Class Certification (Doc. # 15).

In October and November, 2000, the Court conducted a three-day oral and evidentiary hearing on the Plaintiffs' Motion for a Preliminary Injunction. (See Transcripts, Doc. # 24-26). The Court subsequently heard final arguments on December 20, 2000. The Motion for a Preliminary Injunction and the other four Motions are now before the Court for resolution. As a means of analysis, the Court first will address the Plaintiffs' Motion in Limine (Doc. # 7) and Motion for Discovery (Doc. # 9). The Court then will turn to the Motion for a Preliminary Injunction (Doc. # 2) and the related bond Motion (Doc. # 3). Finally, the Court will resolve the Plaintiffs' Motion for Conditional Class Certification (Doc. # 15).

I. Motion in Limine (Doc. # 7)

The Plaintiffs filed this Motion on October 12, 2000, seeking to preclude defense witness Christa Davies from providing expert testimony about the assessment tests at issue. The Court previously deferred ruling on the Motion, electing to hear her testimony before deciding its admissibility. (Doc. # 26 at 3-4).

At the oral and evidentiary hearing in this matter, Davies testified that she works as a testing assessment coordinator for the Miami Valley Career Technology Center ("CTC"). (Doc. # 25 at 156). Davies also testified that she spoke with representatives of Montgomery County and reviewed job descriptions in order to select an assessment test that she believed would accurately measure the skills needed for successful employment in the County's Public Works Department. During the course of Davies' testimony, the Court found that she possessed sufficient expertise to testify about selecting a standardized test to assess particular jobs. (Id. at 170). The Court also ruled that any shortcomings in her expertise affected the weight of her testimony rather than its admissibility. (Id.). Based on that ruling, and the other rulings made by the Court in the course of Davies' testimony, the Plaintiffs' Motion in Limine (Doc. # 7) is overruled.2

II. Motion for Discovery (Doc. # 9)

The Plaintiffs filed this Motion on October 16, 2000, seeking access to one of the assessment tests at issue. The Court resolved this discovery dispute with counsel during the course of the oral and evidentiary hearing, and the Plaintiffs have received a copy of the test, which was ordered filed under seal and subject to a protective order. (Doc. # 25 at 101-02). Accordingly, the Plaintiffs' Motion for Discovery (Doc. # 9) is overruled, as moot.

III. Motion for a Preliminary Injunction (Doc. # 2)

The Plaintiffs filed this Motion on September 25, 2000, seeking to enjoin the Defendants' continued use of assessment test scores and resulting eligibility lists and rankings to fill vacancies in the Montgomery County Public Works Department. The job openings at issue are for employment in classifications identified as Building Maintenance Mechanic I ("BMM I"), Building Maintenance Mechanic II ("BMM II"), and Building Maintenance Mechanic III ("BMM III"). The BMM I position is an entry-level classification, whereas the BMM II and BMM III positions require a certain level of knowledge in one or more skilled trades.

In support of their Motion, the Plaintiffs contend that Montgomery County's assessment testing process violates Title VII, because it has a disproportionately adverse impact on African Americans. In other words, the Plaintiffs allege that the pass rate for black test takers was significantly lower than the pass rate for white test takers. Additionally, even among individuals who passed one or more of the tests, the Plaintiffs suggest that they had an unlawful disparate impact on African Americans, whose scores were lower than those achieved by some less-experienced Caucasians, which resulted in whites being promoted ahead of them. Finally, the Plaintiffs assert that the Defendants' decision to open the testing process only to employees of the Public Works Department disparately impacted African Americans employed elsewhere, as they were barred from taking the tests.3 In addition to seeking a preliminary injunction of the basis that the assessment tests violate Title VII, the Plaintiffs seek injunctive relief on the theory that the testing process violates a collective bargaining agreement ("CBA") between Montgomery County and their labor union, the American Federation of State, County, and Municipal Employees, AFL-CIO ("AFSCME").

A. Findings of Fact4

The evidence presented at the oral and evidentiary hearing establishes that Montgomery County implemented the challenged assessment testing process in response to complaints from the NAACP and the Plaintiffs about the lack of promotional opportunities for minorities in the Public Works Department. (Feldman testimony,5 Doc. # 26 at 226-32; Dinneen testimony, Doc. # 24 at 69-72; Walker testimony, Doc. # 26 at 171-74; Allen testimony, Doc. # 26 at 198-99). Among other things, the minority employees complained that despite their qualifications, they were being passed over for promotions due to competition from outside candidates. (Feldman testimony, Doc. # 26 at 231). They also complained that they had not been given the opportunity to demonstrate their ability to perform higher-level work. (Id. at 232).

In an effort to address the various complaints articulated by the NAACP, the Plaintiffs and other African American employees, the County contracted with the CTC for the selection, creation and administration of the assessment tests at issue in this litigation. (Feldman testimony, Doc. # 26 at 222-23). Prior to designing the tests, representatives of CTC met with County representatives to discuss the BMM job classifications and the requirements of those positions. (Trick testimony, Doc. # 25 at 137). During the meetings, CTC employees also received examples of old test questions that the County had used to fill vacant BMM positions. (Id. at 92-94, 137). In addition, CTC representatives reviewed written job descriptions, but they did not visit the Department of Public Works to observe the BMM jobs actually being performed. (Id. at 79, 106).

The CTC ultimately selected, or created, and administered five assessment tests for Montgomery County.6 (Feldman testimony, Doc. # 25 at 13). The first test, which has been identified as the "ACT test," assessed mechanical reasoning and "information locating" skills. (Trick testimony, Doc. # 25 at 85). It was used by the County to rank applicants to fill vacancies in the BMM I job classification, which is an entry-level BMM position in the Department of Public Works. Four separate "skills tests" were used to rank applicants to fill vacancies in the BMM II and BMM III job classifications, which require a certain degree of knowledge in the skilled trades. The four skills tests assessed competence in the following areas: (1) electrical, (2) plumbing, (3) carpentry, and (4) HVAC. (Feldman testimony, Doc. # 25 at 13). Each of the four skills tests included a "hands on" and a written component. (Trick testimony, Doc. # 25 at 34). Although the four skills tests were used to evaluate applicants for BMM II and BMM III jobs, which were advertised as "journey-level" positions, the County instructed CTC to create tests that did not require true "journey-level" knowledge. In fact, the skills tests designed and administered by the CTC required only a high-school level of knowledge in order for a test taker to obtain a good score. (Dinneen testimony, Doc. # 24 at 91; Trick testimony, Doc. # 25 at 33). CTC representative Lou Warren described the skills test questions as "elementary" and "very basic questions that were fair questions at entry level." (Warren testimony, Doc. # 26 at 77, 82). According to CTC instructor Joel Cole, the skills tests were "below" (i.e., easier than) the entry-level tests that he gives to his own students. (Cole testimony, Doc. # 26 at 112). Likewise, CTC instructor Kelly Kramer described the skills tests as "basic." (Kramer testimony, Doc. # 26 at 119).

After CTC provided the five...

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