Wilmore v. City of Wilmington, Civ. A. No. 80-76.

• Decision Date: 19 January 1982
• Docket Number: Civ. A. No. 80-76.
• Citation: 533 F. Supp. 844
• Parties: James T. WILMORE, William D. Pearson, and Alonzo Hooten, Plaintiffs, v. The CITY OF WILMINGTON, Defendant and Third-Party Plaintiff, v. WILMINGTON FIREFIGHTERS LOCAL 1590, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Third-Party Defendant.
• Court: U.S. District Court — District of Delaware

533 F. Supp. 844

James T. WILMORE, William D. Pearson, and Alonzo Hooten, Plaintiffs, v. The CITY OF WILMINGTON, Defendant and Third-Party Plaintiff, v. WILMINGTON FIREFIGHTERS LOCAL 1590, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Third-Party Defendant.

Civ. A. No. 80-76.

United States District Court, D. Delaware.

January 19, 1982.

COPYRIGHT MATERIAL OMITTED

Gary W. Aber, Biggs & Battaglia, Wilmington, Del., for plaintiffs.

Jeffrey S. Goddess, City Sol., Frederick H. Schranck, Asst. City Sol., Wilmington, Del., for defendant and third-party plaintiff.

Charles P. Brandt, Brandt & Benson, Wilmington, Del., for third-party defendant.

OPINION

STAPLETON, District Judge:

Since 1921 the City of Wilmington has employed paid professional firefighters. Not until 1961, however, did the Bureau of Fire include any blacks or hispanics in its ranks.¹ (PX-8). The number of minorities has increased substantially since 1971; blacks and hispanics now comprise about 15% of the force.² But despite gains in hiring, they remain significantly under-represented in the higher ranks of the Bureau.³ In 1980, the City appointed its first black fire Captain and elevated one additional black firefighter to the rank of lieutenant.

Like many other public institutions throughout the country, the Wilmington Bureau of Fire has a history of racial discrimination which today it freely acknowledges.⁴ See, Defendant's Opening Post-Trial Brief, Docket Item ("D.I.") 146 at 4. That entire history is not now before this Court.⁵ Rather, the issue I must decide is whether a continuing pattern of discrimination is manifest in the procedures adopted to select firefighters for promotion to lieutenant in 1978 and 1980.

Plaintiffs, on behalf of a class of minority firefighters,⁶ have challenged the 1978 and 1980 promotional exams under the Civil Rights Act of 1866, 1871 and 1964.⁷ This Opinion sets forth the Court's findings of fact and conclusions of law following a one week trial on the issue of liability.

I. THE WILMINGTON BUREAU OF FIRE: AN OVERVIEW.

A. Organization.

Like most fire departments, the Wilmington Bureau of Fire has a clearly delineated hierarchy. The bottom rung, probationary firefighters, "rookies", spend a year mastering the basic skills of firefighting. They customarily acquire experience in two of the three positions in an engine company: "hydrant man" and "nozzle man". (See Rules and Regulations of the Bureau of Fire, Arts. 30, 31 (1978); PX-23). With greater experience firefighters may have the opportunity to drive the apparatus. The complement of the longer ladder truck also includes a "tiller man" who steers the rear portion of the segmented vehicle. (PX-23, Art. 29).

Some firefighters are detailed to day jobs. The Fire Marshal's Office is responsible for building inspection, public information concerning fire safety, and other tasks related to fire prevention and the detection of arson. (PX-23, Art. 36). At one time the Fire Marshal's Office was a haven for the "sick, lame and lazy" assigned to light duty, but this has not been the case through most the 1970s. In 1977, the Bureau created the Office of Data and Statistics. The single firefighter assigned to this office reviews and compiles forms submitted by the engine companies. (PX-23, Art. 26). Fire Communications, another desk job within the Bureau, dispatches engine companies to the scene when a blaze is reported. (PX-23, Art. 37).

The Bureau also assigns a few firefighters to serve as Aides to its Battalion Chiefs. The Aides drive the Battalion Chiefs to the firegrounds, relay the Chief's instructions to the fire companies which have responded to the alarm, and assist the Chief in completing various administrative tasks. (PX-23, Art. 35). The administrative side of an aide's job generally includes typing or preparing alarm reports and memoranda, and helping the Chief adjust the status board which records the strength of each of the companies assigned to his shift.

When the officer who ordinarily commands an engine company is sick or on leave a firefighter is designated the "Temporary Acting Lieutenant" ("TAL"). A TAL performs all of the command duties ordinarily carried out by a lieutenant, including the completion of administrative forms such as attendance rosters or alarm reports.

After serving three years in grade, a firefighter is eligible to begin his ascent in the Bureau by taking an examination for promotion to the next rank in the hierarchy.⁸ The lieutenant is the commanding officer of the engine company. (PX-23, Art. 15).⁹ Senior to him in rank are the Captains, Battalion Chiefs, Deputy Chiefs and the Chief of Fire. Captains may command a piece of apparatus, such as a ladder truck, and have command responsibility for the station houses. (PX-23, Art. 13). Battalion Chiefs assigned to Fire Suppression supervise all fireground operations except minor car and brush fires. As in the case of Lieutenants, Captains and Battalion Chiefs are chosen by means of a competitive promotional examination. The Deputy Chiefs are each responsible for a major departmental subdivision: Operations, Fire Prevention, or Administration. Over them is the Chief of Fire, who reports to the Commissioner of Public Safety and the Mayor.

B. Looking Backward: The Connell/Anderson And Malloy Litigation.

Since 1972, when Congress extended Title VII of the 1964 Civil Rights Act to municipalities, the Bureau of Fire has administered four promotional examinations. Although only the 1978 and 1980 exams are involved in this case, the "turmoil" which surrounded the earlier tests is an important piece of background to development of the later exams. Both the 1973 and 1974 promotional procedures embodied a substantial subjective component. Each candidate's score included evaluations by his immediate superior officers, the Chief of Fire, and the Commissioner of Public Safety, as well as a score on a written examination.

The results of the 1973 and 1974 tests inspired charges of "cronyism". After the Bureau posted the results of the 1974 exam, the Union entered into negotiations with the City. In 1976, shortly after resigning from the Bureau, former Deputy Chief Thomas Savage accused then Chief of Fire James Blackburn of having manipulated the scoring procedures to predetermine the final rankings on the 1974 exam. Savage's charges provided a basis for the widespread suspicions of unfairness. The City and the Union agreed that there would be no final promotions made from the 1974 promotion list. Instead, the City appointed "Designated Acting Lieutenants", ("DALs"), to serve as company commanders pending final resolution of the dispute.

In May 1978, this Court approved a settlement between the City and a class of unsuccessful candidates for promotion on the 1974 exam, who claimed a property interest in the City Charter provision requiring merit selection.¹⁰ See DX-12, Anderson v. City of Wilmington, C.A. 76-182 (D.Del. Order filed May 15, 1978). As part of the settlement, the City named a new group of DALs based upon a sub-total of the 1974 scores which did not include the Chief's or Commissioner's ratings. Some DALs selected in 1976 returned to the ranks, others were elevated pending the administration of the 1978 promotional exam.

In 1978, Savage disclosed allegations of similar improprieties in the administration of the 1973 promotional test. This Court has found liability, but has not yet determined a remedy for due process violations arising from these charges. See Malloy v. City of Wilmington, C.A. 78-374 (D.Del. Opinion filed December 16, 1981).

C. The 1978 Exam.

In an effort to restore credibility to its beleaguered promotional system, the City hired the William E. Clark Company in 1977 to develop a new promotional process. In June of that year the Clark Company submitted a Study (PX-12) outlining its plan for the design and validation of the new procedure. The initial study proposed a four part evaluation scheme: an "experience factor", computed on the basis of seniority; evaluation by supervisors; an oral problem; and a written exam.

The first step in test design, according to the study, was a "job analysis". The Clark Company surveyed twenty-two incumbent lieutenants, asking them to rank tasks on a scale of difficulty, criticality to overall job performance, and amount of time spent. (See PX-18, 20). While the Clark Company's work was still in progress, Jerome Donohue replaced Blackburn as Chief of the Bureau of Fire.

In view of the Bureau's recent experience with subjective ratings, Donohue eliminated the supervisor's points from the 1978 test. The final procedure included three components. A written examination, worth fifty of the one hundred total promotion points, contained one hundred multiple choice questions. Many of the questions were taken from the Bureau's Operations Manual, or from two texts: Fire Service Management, by Donald F. Favreau, and Clark's own book, Fire Fighting: Principles and Practices. The oral examination posed a hypothetical fireground situation. After reviewing the facts, candidates were required to present their analysis orally to a board composed of three senior officers. This portion of the test was worth forty percent of the overall score. The balance of the final ranking depended upon the experience factor. Candidates received from eight to ten points, depending upon length of service. (JX-1).

Although the Clark study recommended that the Chief fill each vacancy at his discretion from the top three persons on the promotion list, a "rule of three", the City adopted a policy of strict rank-ordering. Each vacancy to be filled by the highest scorer remaining unpromoted until the promotional list expired after two years. Clark appended a Certificate of Validation to the examination, which promised validity "based on fairness, quality of the men selected, and EEO liability". (PX-13).

On October 15, 1978 the Bureau posted the test results....