Nash v. City of Jacksonville, Fla., 92-903-Civ-J-20.

Citation895 F. Supp. 1536
Decision Date04 August 1995
Docket NumberNo. 92-903-Civ-J-20.,92-903-Civ-J-20.
PartiesWinston NASH, Plaintiff, v. The CONSOLIDATED CITY OF JACKSONVILLE, DUVAL COUNTY, FLORIDA, etc., et al., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

COPYRIGHT MATERIAL OMITTED

Brian Martin Flaherty, General Counsel's Office, City of Jacksonville, Jacksonville, FL, Bartley Kenneth Vickers, Vickers & Andrews, Jacksonville, FL, for intervenor Jacksonville Ass'n of Firefighters, Local 122, I.A.F.F.

Winston F. Nash, Fort White, FL, pro se.

Brian Martin Flaherty, Leonard S. Magid, Steven E. Rohan, General Counsel's Office, City of Jacksonville, Jacksonville, FL, for defendant Consol. City of Jacksonville.

MEMORANDUM OPINION

SCHLESINGER, District Judge.

Trial in this cause was held before the undersigned. Based on the testimony and evidence received during trial, and the applicable legal standards, the Court makes the following findings of fact and conclusions of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure.

Plaintiff, Winston F. Nash, an African-American male, is employed by Defendant, the Consolidated City of Jacksonville ("City") in the Department of Public Safety, Fire Department ("Fire Department"). The City is a municipal corporation. Defendant Local 122, International Association of Firefighter ("Local 122"), an association, was allowed to intervene in this action on October 26, 1993. See Order (Doc. No. 24) dated October 26, 1993.

This is a race discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., and 42 U.S.C. §§ 1981 and 1983. See Pretrial Stipulation (Doc. No. 28) at 1. Plaintiff alleges that the denial of his promotion to the position of captain constituted unlawful race discrimination since Plaintiff was qualified to be promoted to captain and all such promotions went to white males. This case is based upon two theories of recovery, a disparate impact theory and a disparate treatment theory.

Plaintiff has been employed with the City in the Fire Department since November 17, 1972. Plaintiff is a certified firefighter and a certified emergency medical technician in the State of Florida. Plaintiff is currently a fire combat lieutenant ("lieutenant"). Plaintiff also has a masters degree in management supervision from Central Michigan University, a bachelor's degree in business administration from the University of North Florida, an associate's arts degree in fire science from Florida Community College ("FCC") and an associate's arts degree in business administration from FCC.

Plaintiff applied for promotion to fire combat captain ("captain"), the rank immediately above that of lieutenant. Plaintiff met all of the requirements for eligibility and on October 26, 1990, Plaintiff took the fire combat captain promotional examination ("1990 exam"). This was a written examination.

If an applicant passed the 1990 exam by scoring 70 or higher, seniority credits and veteran preference points were added to the test score to come up with a final score. Plaintiff is not challenging the seniority points or veteran points added to the test score.1

After the final score was calculated, the candidates were placed on an eligibility list in which the candidates were ranked according to their final scores. When an opening occurred, the top ranked candidate on the list, i.e., the candidate with the highest final score, received the promotion. This is known as the rule of one, or alternatively, as rank-ordering. The eligibility list remained open for two years, from 1990 to 1992.

The rule of one is used throughout every department in the City for promotions. However, the rule of three is used when an elected official needs to fill a position immediately below him or her. The rule of three allows some discretion in hiring, but the person hired must be ranked in the top three.

After a person was promoted, there was a six month probationary period in which the recent promotee was evaluated in the new job. Also, those items which were determined not to be testable by written exam were looked at during the six month probationary period. Failure to perform satisfactorily during the probationary period would constitute cause to revert the promotee back to the previous position. Nobody was reverted back to lieutenant after being promoted to captain. The only demotion anyone could recall was back in the 1970's.

Plaintiff and Larry Norris were the only two African-Americans out of the ninety-four applicants to take the 1990 exam. Ninety one of the applicants passed the exam. The three applicants who failed the 1990 exam were white males. Neither of the two African-American applicants were selected for promotion. The thirty applicants that were promoted from the eligibility list were all white.

Plaintiff is challenging both the 1990 exam and the rule of one.

Plaintiff's raw score on the 1990 exam was 82.653. See Defendants' Ex. No. 19. In terms of raw score, this ranked Plaintiff eighty-sixth. Out of the 94 people who took the test, 85 of them scored higher than Plaintiff.

Norris received a raw score of 94.898, ranking him twenty-third.

Plaintiff then received 9.389 seniority points, out of a possible 10, bringing his total score to 92.042. Mr. Norris, on the other hand, only received 6.729 seniority points, bringing his total score to 101.627.

Question number one was the only question out of the 98 allowed questions on the 1990 exam (two questions were thrown out) which both African-American candidates scored incorrectly. However, question number one had the highest rate of incorrect answers with 68% of the examinees getting it wrong.

On the Promotional Eligibility List (Defendants' Ex. No. 20), which rank-ordered the candidates based on their final scores, Norris ranked 44th and Plaintiff ranked 84th. Since there were only thirty promotions before the Promotional Eligibility List expired, neither Plaintiff nor Norris were promoted to captain.

Plaintiff and Norris were not treated differently than any other person who participated in the promotional process.

The Fire Department is a paramilitary organization, that is, there is a rank structure in which superior officers give orders to subordinates. These orders cannot be disobeyed. The following are the ranks in the Fire Department, from lowest to highest: firefighter (entry level); engineer; lieutenant; captain; district chief; and battalion chief (senior district chief). Then there are the politically appointed positions.

There are three shifts at a fire station. Each shift is led by an officer. A captain is on one shift and the other two shifts have a lieutenant as the lead officer.

A normal full assignment at a fire scene is two engine companies and one ladder company. The Fire Department tries to arrange it so that at least one captain will be present for normal full assignment. To attempt to ensure this, the Fire Department tries to have the rotation so that when everyone shows up at a fire there is at least one captain on the scene A captain is in charge of the station house. A captain makes the decisions on logistical matters. Even when the captain has the day off, the captain is ultimately responsible for what transpires at the station and acts through his subordinate officers, the lieutenants.

The captain supervises not only his own shift but also the other two shifts. A captain meets with one lieutenant when the captain is relieved in the morning, and with the other lieutenant when the captain relieves him or her the following morning, and they discuss things that have happened and things that need to be done, and the captain makes the necessary decisions. A captain will also leave messages, i.e., orders, when he wants certain things done. A captain does not have to physically be there for his orders to be carried out. He, of course, does not supervise the other shifts at fire scenes because he is not present.

The captain sets the policy at the station house within the rules and regulations, is responsible for the scheduling at the station house, decides where things go, e.g., hoses, first aid boxes, etc., takes responsibility for harmony in the station house, and is responsible for ordering and inventorying supplies. The captain is the one ultimately responsible for the apparatus, i.e., the fire vehicle. This includes maintenance of the vehicle. Only a captain can do the paperwork to permanently transfer someone. Also, a captain initially authorizes leave and captains are first in line in the grievance process.

As for disciplinary matters, the general rule in the Fire Department is that discipline is handled at the lowest level, if possible. Thus, the lieutenant will handle the discipline on his shift if possible. If it is of a magnitude where the lieutenant cannot handle the problem, the captain will become involved. If it still needs to be referred further up the line, the captain will refer it to the district chief.

Generally, whichever officer gets to a fire scene first, that is, the officer with the first company to arrive, is in charge, and that officer is the Incident Commander, and remains as such until relieved by a senior officer. The senior officer has to tell the Incident Commander he or she is relieving him or her and broadcast it over the radio so that everybody knows a change of command has occurred.

If a lieutenant arrives first, the lieutenant will be the incident commander. When the captain subsequently arrives, the captain is in charge if he or she relieves the lieutenant, otherwise the lieutenant remains in charge as the incident commander. There was conflicting testimony as to whether the captain must take over if the Incident Commander is a lieutenant. It appears to be in the captain's discretion. In the downtown area, the general practice is for the first to arrive to remain as the incident commander until the chief arrives. This way, time is not...

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