United Black Firefighters Ass'n v. City of Akron, 94-3961

• Decision Date: 20 March 1996
• Docket Number: No. 94-3961,94-3961
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED BLACK FIREFIGHTERS ASSOCIATION, et al., Plaintiffs-Appellants, v. The CITY OF AKRON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 161

81 F.3d 161

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED BLACK FIREFIGHTERS ASSOCIATION, et al., Plaintiffs-Appellants, v. The CITY OF AKRON, et al., Defendants-Appellees.

No. 94-3961.

United States Court of Appeals, Sixth Circuit.

March 20, 1996.

Before: MERRITT, Chief Circuit Judge; RYAN, Circuit Judge; and CLELAND, District Judge. ^*

MERRITT, Chief Judge.

This appeal by the Plaintiffs, United Black Firefighters Association and six individuals who are members of the Association, arises from a grant of summary judgment for the Defendants, the City of Akron, Ohio, George Romanoski, Richard Pamley, Civil Service Commissioners and Donald Plusquellic and Local 330, Akron Firefighters Association. Memorandum Opinion, Case No. 5:90 CV 1678 (Aug. 31, 1994) (Dowd, J.) (unpublished), J.A. at 1015. ¹ Plaintiffs allege intentional discrimination against and disparate impact on blacks in the promotional examination given by the City of Akron in June 1990 for the position of fire lieutenant. Specifically, Plaintiffs allege violations of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, as well as violations of 42 U.S.C. §§ 1981 and 1983. The District Court granted summary judgment for the Defendants. For the reasons set forth in the District Court's very thorough and careful 47-page opinion, we AFFIRM.

The facts forming the bases for the claims are not in dispute. In 1988, the City of Akron contracted to develop a promotional examination for the position of Fire Lieutenant. The promotional process has four components: (1) a written job knowledge test (150 multiple choice questions drawn from specific listed testeed) (70% of the examination score); (2) an "assessment center" portion consisting of the applicant's written analysis of a lieutenant's typical "in-basket" followed by an oral presentation (tape recorded and reviewed by three officers from other fire departments, two white and one black) (30% of the examination score); (3) service ratings, a component mandated by an earlier consent decree and consisting of ratings based on both objective and subjective factors, such as number of sick days and number of days tardy, training of other personnel, efficiency and leadership qualities and (4) seniority, a component mandated by Ohio's civil service code. Those candidates who achieve at least a score of 70% on the first two components would have that score weighed at 70% and would have additional points added for service rating (20%) and seniority (10%). Candidates who pass the examination are placed on a list in rank order, the rank representing a combination of the exam score (two parts), a service rating and seniority. Promotions are made in order from this list on an as-needed basis. Plaintiffs challenge components one, two and three as having a disparate impact on blacks.

The exam was administered in June and July 1990 and 137 candidates (38 blacks and 99 whites) participated. The final eligibility list was established on August 29, 1990 and expired on August 29, 1992. Based on the results of the first two components of the examination, 118 candidates were placed on the eligibility list (29 blacks and 89 whites). The pass rate for blacks was 76.3% (29 of 38 test-takers), for whites it was 89.9% (89 of 99 test takers). The top 45 candidates (4 blacks and 41 whites) were promoted from this list during the two-year period.

The Defendants moved for summary judgment and, after a hearing, the District Court granted the Defendants' motions. The District Court examined very thoroughly all the statistical evidence relating to the pass rate for blacks and whites on the exam, as well as studying each individual component of the promotional process, and found no disparate impact in either the exam as a whole or in any of its individual components. Moreover, the District Court held that, even assuming a disparate impact, Plaintiffs had not met their burden of proving that the exam as given was not content-valid or that an alternative exam existed in 1990 that would eliminate the disparate impact and serve the needs of the employer.

Plaintiffs contend on appeal that (1) it was error for the District Court to rely solely on the pass/fail statistic in deciding the issue of disparate impact and that other evidence of disparate impact should be considered, including the clustering of blacks near the bottom of the rank-order list used for actual promotions and the number of blacks actually promoted; (2) a triable issue of fact was raised as to whether alternative tests exist that would not lead to the disparate impact in actual promotions and (3) a triable issue of fact exists regarding whether the Defendants engaged in purposeful discrimination that violated Plaintiffs' constitutional rights. We find no merit in any of these contentions.

A review of the entire record demonstrates that the City of Akron put an enormous amount of time and effort into drafting the lieutenant's exam. The City was particularly sensitive to previous complaints about the exam and incorporated certain specific procedures requested by the United Black Firefighters Association, including the rank order listing of eligible candidates. The District Court prepared a very thorough and careful review of all the evidence, looking at both the overall promotional process and the separately challenged components of the exam. Our de novo review of the record reveals that the District Court's conclusion that no genuine issues of material fact exist as to the promotional process is correct.

In a rank-order selection process such as the one used here, the higher one's rank on the list, the greater one's chance of being promoted during the lifetime of the eligibility list, here two years. The number of individuals actually promoted from the eligilibilty list varies from year-to-year based on the number of lieutenants needed during the life of the eligibility list. This number is not known in advance and depends on several factors, including the number of lieutenants that retire or are promoted and the size of the force. Under a rank-order selection process where there are more individuals on the eligibility list than are likely needed, those individuals at the bottom of the eligibility list have less chance of promotion than those at the top.

Plaintiffs, therefore, contend for the first time in this appeal that under the rank-order selection process the "clustering" of blacks near the low end of the eligibility list constitutes evidence of disparate impact because it results in lower numbers of blacks actually receiving promotions. Defendants argue that Plaintiffs waived this argument by not presenting it to the District Court...