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ALLEN v. DISTRICT OF COLUMBIA

February 16, 1993

Joseph Allen, et al., Plaintiffs,
v.
District of Columbia, Defendant.



The opinion of the court was delivered by: RICHEY

 APPEARANCES

 I. INTRODUCTION

 The question in this case is whether a promotional examination for the positions of Captain, Lieutenant, and Sergeant in the District of Columbia Fire Department ("the Department") complied with the requirements of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and whether the test, as administered, constituted a violation of the same statute.

 The test was developed and constructed by the Test Development Committee ("TDC"), *fn1" an independent committee established pursuant to the agreement of the Plaintiffs and their colleagues who were and are a part of the class in Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990). The parties in that litigation agreed to the creation and the specific membership of the TDC on June 24, 1986, over six years ago. See Hammon v. Barry, 752 F. Supp. 1087, Stipulation and Order Regarding Development of Promotion Procedures, June 24, 1986, p. 2-4. The TDC's ultimate cost, paid for by the city, exceeded $ 400,000.

 Trial was held in this case on October 1 and 2, 1992. The Court has carefully considered the submissions of the parties, the testimony of witnesses, the exhibits, the arguments of counsel, the applicable law, and the entire record herein, and concludes that the Plaintiffs have not proved that the promotional test or its administration unlawfully discriminated against them on the basis of race. The promotional test was created by an impartial, independent committee and was scored by experienced senior officials of the Department in such a way that the race and identity of the candidates was kept completely secret to the graders. The examination was a legitimate, neutral employment practice, clearly in keeping with the agreement of the Department to administer a non-discriminatory test in a non-discriminatory manner. Consequently, the Court shall enter judgment on the Complaint for the Defendant. This Opinion shall constitute the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 II. BACKGROUND2

 In 1990, this Court approved a settlement agreement in Hammon v. Barry, a suit brought by African-American firefighters against the District of Columbia ("the District") charging the District with discriminatory employment practices. A copy of the settlement agreement, inter alia, is attached hereto and incorporated by reference as Exhibit "A". The settlement provided for a payment of $ 3.5 million in cash payable to African-American firefighters of the D.C. Fire Department who suffered discrimination on account of their race. The agreement was only entered into after long negotiations by the parties and with the intervention of the Court with the late Herbert R. Reed, former Corporation Counsel for the District of Columbia and Dean of the Howard University School of Law. The agreement also provided for the promotional examination that is the subject of this litigation. The examination was to be used to fill job vacancies for the positions of Sergeant, Lieutenant, and Captain arising after March 1, 1989, and before June 1, 1991. Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990).

 The examination was prepared by the TDC, which had sole responsibility for the test content, validity, scoring, and reporting. The examination, as originally developed by the TDC, consisted of three parts, the Job Knowledge Test, the Fire Scene Simulation Test, and the Supervisory Style Questionnaire. The TDC members drew on the information they had from promotional examinations administered in Saint Louis, Detroit, and Cleveland in creating the examination, to the extent that the firefighting techniques in those cities were similar to those necessary in the District of Columbia. The Job Knowledge Test was a multiple-choice test based on job manuals and other written materials. The second part, the Fire Scene Simulation Test ("FSS"), contained two different problems. Each problem contained a written description of a fire scene and contained a number of questions which asked the test candidates to describe the decisions they would make and the orders they would give in handling the fire. The third part of the examination, the Supervisory Style Questionnaire, measured the performance priorities of those individuals taking the test and compared them with the priorities of higher-ranking officers of the Department.

 The examination was administered by the D.C. Office of Personnel on December 15, 1990. Following the examination, the TDC met with seven senior Department officials to review the test questions. Four of the officials were African-American, and three were white. The TDC and the officials reviewed each of the 108 multiple-choice questions in the Job Knowledge portion of the examination. The officers answered inquiries about the test questions to insure that the questions were job-related; the TDC threw out those questions which it deemed to be not sufficiently job-related. Of the 108 multiple-choice questions on the examination, 60 were retained for scoring purposes by the TDC. The TDC provided an answer key to the D.C. Office of Personnel, which graded the multiple-choice section by mechanical scanner.

 The same group of TDC members and senior officials developed model answers for the FSS portion of the examination. Using the model answers as a guide, groups of chiefs graded the FSS answers. For security purposes, a "double-blind" procedure was used for grading the FSS portion of the examination. The candidates placed an identification number on their test booklets; then, employees of the D.C. Office of Personnel inserted a second conversion number on the FSS booklets, which replaced the original identification number. This system insured that the persons scoring the test booklets had no way of knowing the name or the race of the candidate whose test booklet they were scoring. Of those officers who participated in the grading, twenty were white and four were African-American. McCaffrey Test., Oct. 1, 1992.

 During the grading of the FSS portion, the graders raised questions as to how close a candidate's answer had to match the model answer in order to receive credit. On a number of occasions, the graders consulted with the officers who prepared the model answers as to whether particular phrases or words had to be used. McCaffrey Test., Oct. 1, 1992.

 The third part of the examination, the Supervisory Style Questionnaire, was not used in scoring the December 1990 examination because some of the candidates had received copies of the Questionnaire before the examination. The TDC determined that, because some of the candidates had retained copies of the Questionnaire during the study period before the examination and used them in study groups, the use of the Questionnaire in scoring the examination would not have been fair to those candidates who did not have advance notice of the Questionnaire.

 The scores on the two other portions of the examination, the Job Knowledge test and the FSS test, were weighted approximately equally, Barrett Test., Oct. 1, 1992, and used to generate a final, rank-ordered listing for Captain, Lieutenant, and Sergeant candidates. The D.C. Office of Personnel took these scores, factored in points for service and education (as required by the Hammon Settlement Agreement) and compiled a register of candidates from which promotions were made by the Department in February 1991. The Plaintiffs were not on those lists. The Plaintiffs sought relief from the Equal Opportunity Employment Commission ("EEOC"), which dismissed their charges on December 5, 1991, because of this Court's continuing jurisdiction over the original Hammon Settlement Agreement.

 Plaintiffs originally brought this suit, pro se, on March 5, 1992, against the District and against other individuals connected with the Hammon litigation. Plaintiffs sought relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. $ 2000e et seq., 42 U.S.C. § 1983, 42 U.S.C. § 1981, and the Fifth Amendment. This Court, during the very early stage of this litigation, dismissed all Defendants except for the District because of the constraints imposed by the doctrines of qualified and judicial immunity. See, e.g., Simons v. Bellinger, 207 U.S. App. D.C. 24, 643 F.2d 774 (D.C. Cir. 1980); Briggs v. Goodwin, 186 U.S. App. D.C. 179, 569 F.2d 10 (D.C. Cir. 1977), cert. denied, 437 U.S. 904, 57 L. Ed. 2d 1133, 98 S. Ct. 3089 (1978). The other Defendants were not liable in the performance of their discretionary functions because the Plaintiffs failed to plead specific facts of any unconstitutional actions or motives on the part of the Defendants. Siegert v. Gilley, 114 L. Ed. 2d 277, 111 S. Ct. 1789, 1793 (1991); Whitacre v. Davey, 281 U.S. App. D.C. 363, 890 F.2d 1168 (D.C. Cir. 1989), cert. denied, 497 U.S. 1038, 110 S. Ct. 3301, 111 L. Ed. 2d 810 (1990). The "bare allegations of malice" were not sufficient to inflict the costs of trial or discovery on the other Defendants in this case. Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The Plaintiffs' allegations failed to state a violation of clearly established law, such that the unlawfulness of the officials' challenged conduct would have been apparent in the light of pre-existing law. Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Mitchell v. Forsyth, 472 U.S. 511, 526, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Consequently, the officials were properly dismissed before the commencement of discovery. Mitchell, at 526.

 Further, the Court dismissed the claims against the District based on § 1983 and the Fifth Amendment because the Plaintiffs failed to assert that the alleged constitutional violation resulted from a specific "statute, ordinance, regulation, custom, or usage" of the District. In other words, the Plaintiffs could point to no District policy, either official or unofficial, that "caused" the TDC to create an allegedly invalid promotional examination. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978). Absent any claim that governmental policy was "the moving force of the constitutional violation," the asserted discrimination contained within the examination could not be attributed to the District. Id. at 694; accord Polk County v. Dodson, 454 U.S. 312, 326, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981); Morgan v. District of Columbia, 263 U.S. App. D.C. 69, 824 F.2d 1049, 1058 (D.C. Cir. 1987); Miller v. Barry, 225 U.S. App. D.C. 407, 698 F.2d 1259 (D.C. Cir. 1983).

 Finally, the Court dismissed the Plaintiff's claim under § 1981 because the promotions at issue would not have created a "new and distinct relationship" between the firefighters and the Department. Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989). The Court also permitted the intervention of Local 36 of the International Association of Fire Fighters, whose members could have also been affected by the outcome of this litigation. See Order, July 2, 1992. Trial on the merits of the Title VII claim began on October 1, 1992 and was concluded on October 2, 1992.

 III. DISCUSSION

 A. BECAUSE THE PROMOTIONAL EXAMINATION, AS CREATED BY THE TDC, WAS A VALID MEASURE OF THE ABILITIES AND PROBABLE FUTURE SUCCESS OF THOSE INDIVIDUALS TAKING THE TEST, THE EXAM SERVES THE LEGITIMATE EMPLOYMENT GOALS OF THE DEPARTMENT.

 The Plaintiffs allege that the promotional examination had a discriminatory impact on African-American firefighters in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. They question the validity of the examination as prepared and as administered. The Defendant denies that any discrimination occurred in either respect.

 The parties agree that the legal standard to be applied in this case is set out in Wards 's Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989). *fn3" Ward's Cove addresses the issue of what constitutes a showing of "disparate impact" sufficient to cause Title VII liability. In order to establish a prima facie case of disparate impact, the Plaintiffs must prove that a facially neutral policy or test has a significant discriminatory effect on the African-American firefighters seeking promotion. See id. at 2124. The Defendant must then put forward evidence of a business justification for the employment practice. The Plaintiffs then bear the burden of persuasion that the adverse employment action or practice was based on pretext. Id. at 2126.

 The Plaintiffs' first requirement is to show a specific employment practice resulted in the promotion of the candidates "in a racial pattern significantly different from that of the pool of applicants. " Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). Although the Plaintiffs did not present the Court with specific numbers, the Plaintiffs showed, through the Report of the TDC and the trial statements of Dr. Barrett, that the promotional examination produced disparity in the number of promotions awarded to African-Americans. Barrett Test., Oct. 1, 1992. The Defendant conceded that African-Americans, as a group, did less well on the examination than did whites in its Motion for Judgment as a Matter of Law.

 However, the Plaintiffs have failed to prove that the promotional examination was a pretext for discrimination. In fact, the examination served the legitimate employment goal of helping select qualified candidates for promotion in a neutral fashion. It is undisputed that the examination was part and parcel of the Settlement Agreement in Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990). The examination was designed to serve as a "fair, non-discriminatory, job-related promotional test" to be used in selecting individuals for promotion. Id. at 1097. Furthermore, the examination was designed by the TDC, an independent group specifically formed for the task. The Defendant has easily met its burden of production in showing the legitimate nature of the challenged examination.

 Plaintiffs claim that the use of the examination does not constitute a legitimate business practice. The Plaintiffs have failed to convince the Court, however, that any objections to the substance of the examination render the District's reliance on the examination results improper. The examination still, "in a significant way, serves the legitimate employment goals" of the District. Ward's Cove, 109 S. Ct. at 2125-26.

 The validity of the examination is supported by both the Special Master and the TDC. On February 4, 1991, the Special Master in the Hammon case issued a report on the validity of the December 15, 1990, examination. A copy of his report is attached hereto and incorporated by reference as Exhibit "B". The Special Master concluded that both the Job Knowledge and FSS portions of the examination were valid. Report of the Special Master at 12-13.

 On February 25, 1991, the TDC submitted its report on the December 1990 examination. In the report, the TDC reviewed the development and validity of the examination. The TDC concluded that the examinations given to the Captain, Lieutenant, and Sergeant candidates possessed "content validity" because of the neutral process by which the battalion chiefs evaluated the multiple-choice questions contained in the Job Knowledge portion of the exam and also prepared an answer key for the problems contained in the FSS portion of the exam. TDC Report, Executive Summary at 1-2. In other words, the information sought by the examination was a fair measure of the knowledge relevant to being a successful firefighter because the grading of both parts of the examination was supervised by experienced battalion chiefs.

 The TDC also evaluated the examination by another standard, called "criterion-related" validity. The "criterion-related" validity of the examination was measured by comparing the exam scores of selected individuals with personal evaluations of these same individuals provided by battalion fire chiefs. The comparison was designed to measure whether candidates who performed well on the job would score well on the exam. The TDC concluded that the multiple choice questions on the Job Knowledge portion of the examinations given to the Captain, Lieutenant, and Sergeant candidates possessed moderate "criterion-related" validity as to all of the exams. The FSS portion had moderate "criterion-related" validity on the Lieutenant exams, but not on the Captain and Sergeant exams. Barrett Test., Oct. 1, 1992; cf. TDC Report, Executive Summary at 4.

 The Plaintiffs assert that, because the FSS portion lacked "criterion-related" validity on the Captain and Sergeant exams, the entire examination must be declared invalid. However, the Plaintiffs fail to give adequate weight to two considerations. First, the TDC found that the FSS portion of the examination, together with the Job Knowledge portion, possessed content validity. Content validity, as Dr. Barrett explained, is a proper method of determining whether the examination was a fair measure of the information necessary for success as a firefighter. In this case, the content validity of the examination was insured by using a racially mixed group of fire officials to evaluate the multiple choice questions and to develop model answers for the FSS portion of the examination. The Court places more weight on the results of this content validity measurement than the "criterion-related" validity measurement because the former method relies on a generalized, neutral evaluation of what information a successful candidate should know; the latter method depends more on subjective evaluations of individual firefighters. See Police Officers for Equal Rights v. City of Columbus, 916 F.2d 1092 (6th Cir. 1990). Cf. 29 C.F.R. § 1607.5 (1991) (accepting both criterion-related and content validity studies as satisfying EEOC guidelines).

 The Plaintiffs assert that the content validity of the FSS portion must be called into question because the battalion chiefs who graded the examinations did not strictly adhere to the model answers provided. As Assistant Fire Chief McCaffrey stated in his testimony, during the grading period, the graders raised questions as to how closely the test answers had to match the model answers in order to receive credit. After consultation with the committee which developed the model answers, the graders gave credit for certain answers which, though not identical with the model answers, conveyed the same intent as the model answers. *fn4"

 The Court does not believe that the slight modifications in the model answers brought out at trial render the FSS portion of the exam invalid. The Plaintiffs failed to show that these modifications would do anything but increase the number of fundamentally correct answers given credit by the graders. Thus, the Plaintiffs have failed to show that the examination is not a valid method to achieve legitimate employment goals and they have failed to meet their burden with respect to their claim that the examination itself was invalid and served only as a pretext.

 B. BECAUSE THE PLAINTIFFS FAILED TO COME FORWARD WITH ANY EVIDENCE OF CHEATING ON THE EXAM, THE MINOR IRREGULARITIES OCCURRING DURING THE ADMINISTRATION OF THE TEST DO NOT RENDER THE TEST INVALID.

 The Plaintiffs, having failed to show that the content of the examination rendered it invalid, next claim that the examination results are invalid because of what they perceive as faulty administration of the examination. The Plaintiffs allege that the entire examination is invalid because of certain minor irregularities that occurred during the course of the examination. The Court finds, however, that the administration problems were not so severe as to invalidate the results of the examination. It is true, for example, that individuals were permitted to go to the restroom unescorted. Drumming Aff. at 2. Some individuals were seen talking in the halls and restrooms during the course of the examination. Wright Aff. at 2. Monitors failed to verify the identity of all those taking the test at all times during the examination. Spaulding Aff. at 2. The Court recognizes that the irregularities that occurred during the examination might have created an opportunity for cheating. However, no witness had personal knowledge of anyone cheating on the examination. The Court cannot draw the conclusion that cheating actually did occur when the Plaintiffs have put forward no evidence to that effect. Furthermore, it is undisputed that the alleged irregularities were not directed towards nor unduly affected African-Americans as compared with candidates of another race.

 Dr. Barrett, the Defendant's opinion witness, testified that he believed that the test as administered retained its validity. Dr. Theodore Rosen, one of the Plaintiffs' opinion witnesses, concluded that the irregularities had a negative impact. Rosen Decl. at 5. However, the Court agrees with the Defendant that any mistakes which might have occurred were minor and did not affect the results of the examination. This conclusion was shared by the Special Master. Report of the Special Master at 10. Consequently, the Plaintiffs have failed to show that the examination, either as constructed or as applied, is pretextual; the examination was an employment practice based solely on legitimate neutral considerations and is consistent with the requirements of Title VII. See Ward's Cove, 109 S. Ct. at 2126.

 C. BECAUSE THE PLAINTIFFS HAVE FAILED TO PUT FORWARD ANY EVIDENCE THAT OTHER SELECTION DEVICES WOULD EQUALLY SERVE THE DISTRICT'S INTERESTS WITH LESS OF A RACIAL IMPACT, THE PROMOTIONAL TESTS USED IN THIS CASE MUST BE UPHELD.

 On October 2, 1992, at the very end of the trial, during the cross-examination of Dr. Barrett, the Plaintiffs asserted the claim that another selection device rather than the test developed by the TDC as agreed upon by the parties would have had a less discriminatory impact on African-American firefighters. While it is true that the Plaintiffs may prevail on their Title VII claim if they can show that "other tests or selection devices, without a similarly undesirable racial effect, would also serve . . ." the District's needs, id., the Plaintiffs failed to show that less discriminatory alternatives were available.

 The Plaintiffs' entire argument is based on the cross-examination of Dr. Barrett. Dr. Barrett did say that less discriminatory alternatives might exist, but neither he nor the Plaintiffs gave details as to what those alternatives might be. Several options were mentioned: assessment centers, training programs, peer review, etc. But the Plaintiffs failed to put forward evidence that any of these alternative methods for selecting candidates for promotion could reasonably have been used in this case. Further, Plaintiffs failed to show that these alternatives would have been as likely as the promotional examination to select candidates with the appropriate qualifications. Cf. Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1148 (2nd Cir.), cert. denied, 116 L. Ed. 2d 277, 112 S. Ct. 337 (1991) (finding that the plaintiffs in that case had shown that an alternative method of officer selection with a less discriminatory effect could have been utilized).

 The Court also notes that all of the parties in the Hammon litigation had agreed to the development of the promotional examination by the TDC. The TDC and the parties worked diligently after the approval of the settlement agreement to ensure that the promotional examination would be ready to administer on December 15, 1990. Absent any showing that an alternative method was both possible and practical, the Plaintiffs' claim that another method of promotion should have been used in lieu of the examination must fail.

 IV. CONCLUSION

 For the reasons expressed herein, the Court finds that the Plaintiff has not proved its case under Title VII. The Plaintiff failed to show that the examination was a pretext for discriminatory conduct; rather, the examination furthered the legitimate business concerns of the Defendant. Furthermore, the Plaintiff did not show that alternative methods of promotion exist that would have a less discriminatory effect. Accordingly, the Court shall enter judgment for the Defendant and shall dismiss the above-captioned case from the dockets of this Court. Also, because the Plaintiffs are individuals of limited financial means, a great disparity exists between the financial resources of the Plaintiffs and the Defendant, and the litigation raised issues of public concern, the Court, in its discretion, will not assess costs against the Plaintiffs in this case. See, e.g., Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir. 1984); Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983). The Court shall enter an Order of even date herewith consistent with the foregoing Opinion.

 February 16, 1993

 CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 JUDGMENT - February 16, 1993, Filed

 Upon consideration of the claims of the parties at the October 1-2, 1992, trial of the above-captioned case, the record herein, and the applicable law, and for the reasons expressed in this Court's Opinion of even date herewith, it is, by this Court, this 16th day of February, 1993,

 ORDERED that the Plaintiffs' request for relief shall be, and hereby is, DENIED; and judgment in the above-captioned case shall be, and hereby is, entered for the DEFENDANT; and it is

 FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court, ...


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