Reynolds v. McInnes, 02-14228.

• Decision Date: 22 July 2003
• Docket Number: No. 02-14228.,02-14228.
• Citation: 338 F.3d 1221
• Parties: Johnny REYNOLDS, individually and on behalf of himself and as representative of a class of black employees of the Highway Department, State of Alabama, similarly situated, Plaintiffs-Appellants, Cecil Parker, Ouida Maxwell, Martha Ann Boleware, Peggy Vonsherie Allen, Jeffery W. Brown, Intervenor-Plaintiffs-Appellants, Robert Johnson, et al., Intervenor-Plaintiffs, v. Joe McINNES, in his official capacity as Director for the Alabama Department of Transportation, Department of Transportation, State of Alabama, Department of Personnel, State of Alabama, Ray Bass, Marvin Wagonner, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1221

338 F.3d 1221

Johnny REYNOLDS, individually and on behalf of himself and as representative of a class of black employees of the Highway Department, State of Alabama, similarly situated, Plaintiffs-Appellants, Cecil Parker, Ouida Maxwell, Martha Ann Boleware, Peggy Vonsherie Allen, Jeffery W. Brown, Intervenor-Plaintiffs-Appellants, Robert Johnson, et al., Intervenor-Plaintiffs, v. Joe McINNES, in his official capacity as Director for the Alabama Department of Transportation, Department of Transportation, State of Alabama, Department of Personnel, State of Alabama, Ray Bass, Marvin Wagonner, et al., Defendants-Appellees.

No. 02-14228.

United States Court of Appeals, Eleventh Circuit.

July 22, 2003.

Kell A. Simon, H. Wallace Blizzard, III, Russell Wayne Adams, Robert L. Wiggins, Jr., Gordon, Silberman, Wiggins & Childs, P.A., Birmingham, AL, for Appellants.

Susan Salonimer Wagner, Wesley C. Redmond, Lisa Wright Borden, Berkowitz, Lefkovits, Isom & Kushner, Raymond P. Fitzpatrick, Jr., J. Michael Cooper, Gary L. Brown, R. Scott Clark, Fitzpatrick, Cooper & Clark, LLP, Cinda Ruth York, Campbell, Waller & Loper, LLC, Birmingham, AL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and CARNES^*, District Judge.

CARNES, Circuit Judge:

This is the latest appeal growing out of the nearly two-decades old, racial discrimination in employment lawsuit involving the Alabama Department of Transportation (ALDOT) and the State Personnel Department (SPD). Those two state agencies were sued in 1985 by what became two plaintiff classes of black employees and prospective employees. A partial settlement was reached and a consent decree was entered in 1994, but instead of ending the case the decree became a platform for additional litigation.

A more detailed history of the case can be found in our six other published opinions involving it. See Reynolds v. McInnes, 338 F.3d 1201, No. 98-6164, 2003 WL 21692337 (11th Cir. July 22, 2003) ("Reynolds V"); Reynolds v. Butts, 312 F.3d 1247 (11th Cir.2002) ("Reynolds IV"); Davis v. Butts, 290 F.3d 1297 (11th Cir.2002); Reynolds v. Roberts, 251 F.3d 1350 (11th Cir.2001) ("Reynolds III"), cert. denied, 534 U.S. 1161, 122 S.Ct. 1171, 152 L.Ed.2d 115 (2002); Reynolds v. Roberts, 207 F.3d 1288 (11th Cir.2000) ("Reynolds II"), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001); Reynolds v. Roberts, 202 F.3d 1303 (11th Cir.2000) ("Reynolds I"). We won't repeat any more of that history than is necessary for an understanding of the issue before us in this appeal.

The issue is whether the district court abused its discretion when it modified one part of one article of the 1994 consent decree at the defendants' request and over the objection of the plaintiffs. Insisting that it did, the plaintiffs have appealed. Concluding that it did not, we affirm.

I.

The consent decree, aimed at ending racial discrimination in ALDOT's employment practices, has twenty-one articles. This appeal is about Article Two, which governs the development and use of "minimum qualifications" (MQs), which are part of the selection procedure for hiring and promoting employees in ALDOT jobs. A job seeker wanting to sit for an employment examination must meet the MQs first. MQs are designed to screen for skills needed at entry into a new position, and can screen for, among other things, "knowledge, skills and abilities" (KSAs) relevant to a position. The job examinations themselves measure KSAs.

The provision of Article Two that was modified by the district court is ¶ 1, which is called "the no-overlap provision." This is what the paragraph says:

Minimum qualifications will not be utilized on examination announcements or to preclude an applicant from examination unless the minimum qualification bears a manifest relationship to skills, knowledges, or abilities necessary to the performance of the job at entry without a brief orientation period and such skills, knowledges or abilities are not addressed in the examination process.

The key point for our purposes is that the "skills, knowledges, or abilities" to which the MQs must bear a manifest relationship cannot be ones "addressed in the examination process." Before getting into the reasons that the no-overlap provision is problematic, we need to explain some more about the job selection procedures process that is required by the decree.

Other portions of Article Two incorporate the federal Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §§ 1607.1-1607.18 ("Uniform Guidelines"), and require SPD to meet the Uniform Guidelines in developing MQs. Article Two, ¶ 3 allows for the use of MQs that have been determined to be "valid" within the meaning of the Uniform Guidelines. To establish that a job selection procedure is "valid" an employer must demonstrate that the selection procedure is appropriately job-related. Under the Uniform Guidelines, a job selection procedure may be validated through the use of one of three different types of studies: content validity, criterion-related validity, and construct validity. Id. § 1607.5(A).

Of those three types of validation methods, the parties chose content validation for MQs. They wrote that choice into Article Two, ¶ 2, which specifies use of "a content validation procedure to determine the appropriate minimum qualifications" for ALDOT jobs. A content validity study measures whether and to what extent the selection procedure is "representative of important aspects of performance on the job for which the candidates are to be evaluated." Id. § 1607.5(B). It measures knowledge, skills, or abilities that are "necessary prerequisite[s]" for the "performance of critical or important work behavior(s)" for the job. Id. § 1607.14(C)(4). The Guidelines provide that a selection procedure may be used "if it represents a critical work behavior (i.e., a behavior which is necessary for performance of the job) or work behaviors which constitute most of the important parts of the job." 29 C.F.R. § 1607.14(C)(8). Under a "criticality" approach to content validation, an approach the plaintiffs advance as one that would be valid under the Uniform Guidelines and comply with the decree, MQs could be based on a small number of "critical" KSAs instead of most of the KSAs.

In order to construct content valid MQs and a valid examination under the Uniform Guidelines, a detailed job analysis must be performed for each job classification and must focus on the work behaviors necessary for successful performance of the job and also on the tasks associated with those behaviors. Id. § 1607.14(C)(2). Each job analysis conducted by SPD for ALDOT included interviews with incumbents in the jobs or their supervisors, upon whom were bestowed the laudatory label "subject matter experts." Article Two, ¶ 2 also provides that the MQs and the validation procedure "will be subject to challenge by plaintiffs and no new minimum qualifications will be implemented without approval by the plaintiffs or the Court."

Having finished our description of the job selection procedures in general, we focus again on the Article Two, ¶ 1, the no-overlap provision. It is important to say at the outset what all the experts for both sides agreed upon at the hearing in this case: the no-overlap provision is novel in the field of employment testing. There has been a whole lot of employment testing in this country over the years, but there is nothing in the record indicating that the no-overlap provision, variously described as "novel" and "unusual," has ever been used anywhere before. Nonetheless, for several years after the consent decree was adopted, a joint panel of experts — two selected by the plaintiffs and two selected by the defendants — worked to develop MQs and job examinations for ALDOT jobs that would comply with the no-overlap provision.

The plaintiffs' and defendants' experts initially agreed to develop "task-based" MQs, which would evaluate a job candidate's experience in performing the discrete tasks required at entry into a new position. They reasoned that measuring experience with certain tasks, instead of typical KSAs, would provide the most valid MQs while avoiding overlap between the KSAs used in the MQs and those measured by the examinations. However, problems resulted from use of the task-based MQs, including a higher rejection rate of applicants than expected and a high rate of adverse impact, meaning that the pass rate of black applicants was significantly lower than that of white applicants.

SPD then tried a different approach, using another MQs screen as an alternative to the existing one that had not worked. The new MQs screen was a more traditional one which included an educational requirement and an experience requirement. That approach did not work either. None of the parties was satisfied with the resulting MQs that were in place in 2001.

By the summer of 2001, SPD and its experts decided to strike out on their own to develop new MQs for some of the job classifications, beginning with the job of Civil Engineer Manager. The experts used by SPD looked at job analysis reports that had already been developed for the jobs, selected subject matter experts, conducted MQs development sessions (where a group of subject matter experts were brought together to help determine the types of MQs to use), and they looked for some consensus about potential MQs. Then, the experts linked the MQs to the KSAs in order to ensure that they were actually related to each other as required under Article Two, ¶ 1 of the consent decree. Despite all their efforts, the experts were unable to design any method for developing valid MQs that would comply with the no-overlap provision.

II.

On December 13, 2001, the defendants moved to modify the consent decree by removing the no-overlap provision of Article Two, ¶ 1, on the ground...