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June 24, 1995

BEATRICE RUDDER, et al., Plaintiffs,

The opinion of the court was delivered by: CHARLES R. RICHEY


 The question presented in this case is whether a promotional examination administered in 1991 for the positions of Captain, Lieutenant, and Sergeant in the District of Columbia Fire Department ("DCFD" or "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. More specifically, as the Court framed the issue prior to trial: "the only thing before the Court is the second examination, whether there was cheating on that test, and . . . whether it was administered in a discriminatory manner to the detriment of African American Fire Fighters in violation of their rights under Title 7 of the Civil Rights Act." (Extract of Transcript of Proceedings, May 26, 1995). Counsel for each party agreed, prior to and during trial, that this statement accurately describes the issue before the Court.

 A bench trial was held from June 5 to June 8, 1995. At the close of the Plaintiffs' case-in-chief and pursuant to Rule 50 of the Federal Rules of Civil Procedure, the Court granted the Defendant's Motion for Judgment as a Matter of Law with respect to the 1991 Captains' and Lieutenants' Promotional Examinations, but denied it as to the 1991 Sergeants' Examination. (See Order entered June 8, 1995). Following the trial, both sides filed Proposed Findings of Fact and Conclusions of Law as to the remaining issues, and the Court heard oral argument on the merits on June 22, 1995.

 Upon careful consideration of the evidence presented at trial, the arguments of counsel, the relevant law, and the entire record in this case, the Court finds that the Plaintiffs have not met their burden of proving that the 1991 examination discriminated against the Plaintiffs on the basis of their race, in violation of Title VII of the Civil Rights Act of 1964. In particular, consistent with the Court's statement of the issue with which all counsel agreed, the Plaintiffs have not shown that the 1991 examination was administered in violation of Title VII or that there was cheating on that test. With respect to the development and validity or "job-relatedness" of the examination, the Court further finds that the Plaintiffs have not met their burden of proving discrimination under Title VII. The Court shall therefore enter judgment in favor of the Defendant District of Columbia.


 This case arises in connection with two sets of promotional examinations administered in the District of Columbia Fire Department pursuant to a Settlement Agreement and Consent Decree adopted by this Court in the case of Hammon v. Barry, 752 F. Supp. 1087, 1097 (D.D.C. 1990). In October of 1992, this Court conducted a trial in the case of Allen et al. v. District of Columbia, 812 F. Supp. 1239, Civil Action No. 92-555, to consider the allegations of six firefighters who alleged discrimination in the administration of the December 15, 1990 examination and in the subsequent promotional process. On February 16, 1993, the Court issued a Memorandum Opinion and Order setting forth its findings of fact and conclusions of law in the Allen case and entering judgment in favor of the Defendant.

 Thereafter, the instant Plaintiffs filed the above-captioned case asserting that the July 1991 promotional examinations for the positions of Captain, Lieutenant, and Sergeant adversely affected African-American firefighters. (Third Amended Complaint, P 69). *fn1" The Plaintiffs are fifty-nine African-American firefighters who first filed this action on December 28, 1992, and then filed an Amended Complaint on January 25, 1993. On March 19, 1993, the Defendants filed a Motion to Dismiss or, in the alternative, for Summary Judgment, and the Plaintiffs filed a response to that Motion. The Court denied the Defendants' Motion, without prejudice, and granted the Plaintiffs' Motion for Leave to File an Amended Complaint. The Court then dismissed the case, without prejudice to the right of the Plaintiffs to re-open this matter by filing an Amended Complaint within 30 days of the issuance of the Supreme Court decision in the case of Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), and ordered that the Plaintiffs' failure to file an Amended Complaint or otherwise re-open this matter within that time period would result in the dismissal of this matter, with prejudice. (See Order dated March 8, 1994). On April 16, 1994, the Supreme Court issued its Opinion in Landgraf, and on May 27, 1994, the Plaintiffs filed a Third Amended Complaint.

 On June 29, 1994, the Defendants filed a Motion to Dismiss the Third Amended Complaint or, in the alternative, for Summary Judgment, and the Plaintiffs filed an opposition thereto. By Memorandum Opinion and Order entered September 6, 1994, the Court found that the Plaintiffs were barred by the doctrine of res judicata from relitigating claims regarding the 1990 promotional examination, and that the Plaintiffs' claims under 42 U.S.C. § 1981 must be dismissed because the Civil Rights Act of 1991 does not apply to pre-Act conduct. The Court also set a schedule for the preparation of this case for trial.

 Following discovery, on March 27, 1995, the Defendant filed a Motion for Partial Summary Judgment and to Strike Jury Demand, and later filed a Motion to Treat as Conceded its Motion for Partial Summary Judgment. The Court granted both Motions by Order entered May 9, 1995. The Plaintiffs, after receiving an extension of time, were to file an opposition to the Defendant's Motion by April 13, 1995. As no opposition was filed, even weeks after its due date, the Court treated the Motion as conceded, pursuant to Local Rule 108(b). The Court's ruling operated as a finding of summary judgment in favor of the Defendant (1) on the Plaintiffs' claims under 42 U.S.C. § 1983, and the Fifth and Fourteenth Amendments to the Constitution, as discovery had not revealed the existence of any unconstitutional municipal custom, policy or practice of discrimination relating to the 1991 examinations (a point which the Plaintiffs conceded in a later pleading *fn2" ); (2) on the Plaintiffs' jury demand regarding the Title VII claim, as the events at issue occurred prior to the passage of the 1991 Civil Rights Act; and (3) on the claims of those Plaintiffs who did not take the 1991 examinations, *fn3" including the lead Plaintiff, Beatrice Rudder, as they were ineligible based on the criteria established by the Court and the Special Master in Hammon.4

 After several continuances of the trial date and further delays prompted largely by the Plaintiffs, *fn5" the case finally came to trial before the Court on June 5, 1995.


 Prior to trial, counsel for each side filed Proposed Findings of Fact and Conclusions of Law, which were marked up by opposing counsel as follows: those portions which are disputed were underlined; those portions which are admitted were bracketed; those portions which are admitted, but deemed irrelevant or immaterial, were left blank. Following trial, counsel for each side filed another set of Proposed Findings of Fact and Conclusions of Law in light of the evidence admitted at trial. These post-trial pleadings were also exchanged amongst counsel and marked up accordingly. *fn6"

 At some point in the trial, the Court heard the testimony of the Defendant's opinion witnesses, Drs. O'Leary and Barrett, and the Plaintiffs' opinion witness, Dr. Hoffman. As the trier of fact, the Court may accept or reject such opinions in the exercise of its sound discretion and, as is the case with any witness, must judge their credibility. As the Second Circuit observed, "while courts should draw upon the findings of experts in the field of testing, they should not hesitate to subject these findings to both the scrutiny of reason and the guidance of Congressional intent." Guardians Ass'n v. Civil Service Comm'n of New York, 630 F.2d 79, 89 (2d Cir. 1980), cert. denied, 452 U.S. 940, 69 L. Ed. 2d 954, 101 S. Ct. 3083 (1981).

 While the Plaintiffs object to much the account of the job analysis and test development provided by Drs. Barrett and O'Leary and set forth in the Defendant's Proposed Findings of Fact, the Court takes this opportunity to observe that there is no probative evidence in the record to refute the testimony of these opinion witnesses. The Court, in short, found Drs. Barrett and O'Leary to be highly credible witnesses who answered difficult questions in what appeared to be an honest way, conceding problems with the examination where apparently necessary. On the other hand, the Court found the Plaintiffs' opinion witness, Dr. Hoffman, extremely biased; at one point, he went so far as to pause before answering a question so as to respond in a way that was consistent with "his burden." As the Court stated from the bench, Dr. Hoffman's responsibility, like any witness, was to answer questions honestly and accurately -- not to act as an advocate by interjecting during the Court's colloquies with counsel and arguing with the Court over the law. Moreover, the Court is troubled by Dr. Hoffman's willingness to accept the test results where they showed adverse impact, but reject the results where they showed no adverse impact. Under such circumstances, the Court gives very little weight to Dr. Hoffman's testimony. Indeed, in light of his readily apparent and extreme bias, much of Dr. Hoffman's representation of the "facts" is entitled little more weight than would be afforded an attorney's words at closing argument which, as this Court has told juries for years, is not evidence in a case.

 With that said, the Court shall proceed to set forth its findings of fact.

 A. The Test Development Committee

 The Settlement Agreement in Hammon v. Barry, which was executed on August 20, 1990 following over six years of litigation regarding charges of discrimination and reverse discrimination in the District of Columbia Fire Department, was composed of two parts: Part A addressed all claims involving hiring and vestiges of discrimination and Part B addressed the issue of future promotions. Hammon v. Barry, 752 F. Supp. 1087, 1090-91 (D.D.C. 1990). By agreement of all the parties to the Hammon litigation, a Test Development Committee ("TDC") was established to work with the Hammon Special Master, Professor Stephen A. Saltzburg, in developing the promotional examinations required by the Settlement Agreement. Id. at 1091, 1091 n.1. The members of the TDC were Dr. Richard Barrett, Dr. Lawrence O'Leary (both of whom testified on the Defendant's behalf in this case), and Dr. Carl Holmes.

 On June 19, 1991, following the development and administration of the 1990 examination, the Hammon Special Master ordered that "the City shall use the TDC to prepare the second round of promotional examinations." (June 19, 1991 Order Regarding TDC). In particular, the Special Master charged the TDC with the following duties:

drafting of all examination exercises, training of graders if graders are to be used, preparing a report on the examination when the results are known, doing statistical or other analyses as may be required to validate the tests and provide details for a report, defending the tests if they are attacked, and responding to the City's reasonable requests for information and explanations concerning the examinations.

 Id. at 2. The Special Master further ordered that "the City, particularly the District of Columbia Office of Personnel, shall be responsible for administering the examinations . . . ." Id. The Special Master also deemed the TDC "responsible for examinations that are legally sufficient" and ordered the TDC to "be prepared to defend the examinations which it prepares." Id. at 3.

 Thereafter, the TDC drafted examinations for three ranks in fire suppression: Sergeant, Lieutenant, and Captain. (Barrett Decl., P 1). The TDC also observed administration of the examinations, participated in the development of scoring keys and grading, and issued a final report and validation study on November 13, 1991. (Id.; Defendant's Exh. 2, Fire Department Promotion Test Battery: Development and Validation for Washington, D.C., Second Administration, July, August 1991, dated November 12, 1991 [hereinafter "Validation Study"]). As discussed in the Validation Study, the TDC concluded that the 1991 examination was valid under the "content validation" method set forth in the Uniform Guidelines on Employee Selection Procedures ("Uniform Guidelines"), 29 C.F.R. Ch. XIV. (Barrett Decl., P 9).

 The Court further observes that, as part of the Settlement Agreement -- which was signed by the Hammon Plaintiffs' attorney, Joan Burt -- $ 3,500,000.00 was distributed to members of the Plaintiff class. The vast majority of the instant Plaintiffs received monetary compensation as a result of said Agreement. In particular, the Court has examined the sealed materials in Hammon and determined that at least forty-four of the fifty-nine Plaintiffs in the case at bar (and perhaps more by virtue of the similarity of names as between Hammon Plaintiffs and Rudder Plaintiffs) received money from the District of Columbia as part of the Settlement Agreement in Hammon. Thus, very few of the instant Plaintiffs did not receive financial benefit from the Hammon settlement. Moreover, the Court notes that none of the Rudder Plaintiffs would have had an opportunity to take the 1990 and/or 1991 examinations were it not for the benefit they received from the settlement as Hammon class members. Nevertheless, they still filed the instant suit.

 B. Components of the 1991 Examination

 The 1991 Fire Department promotional examinations were comprised of three parts: (1) the Job Knowledge Test; (2) the Assessment Center; and (3) the Fire Scene Simulation. (O'Leary Decl., P 3).

 The Job Knowledge Test was a multiple-choice test of knowledge based on manuals, orders and other material assigned on a reading list. (O'Leary Decl., P 3). TDC member Dr. O'Leary was responsible for developing the Job Knowledge Test, in collaboration with Dr. Barrett, also a TDC member. (Id.)

 The Assessment Center was comprised of exercises designed to test for behavioral characteristics essential to Fire Department officers, such as leadership, judgment, decisiveness, and communication skills. (Id., P 4). Dr. O'Leary developed the Assessment Center.

 The third portion of the examination, the Fire Scene Simulation, was developed by TDC member Dr. Carl Holmes and reviewed by Drs. Barrett and O'Leary. Two fire scene scenarios were administered as part of the 1991 examination, an engine scene and a truck company scene. (Id., P 5). Each scene presented a drawing of a fire scene and the surroundings, and quotations from the dispatcher. The applicants responded to a series of questions in which they wrote down the decisions that they would make and orders that they would give on the scene, based upon the information presented. (Id.)

 C. The TDC's Job Analysis

 To develop the 1990 and 1991 examinations, the TDC conducted job analyses of the Sergeant, Lieutenant, and Captain positions. The TDC performed its own job analysis because it determined that the Fire Department's existing position descriptions were inadequate for its purpose. Therefore, in 1987 the TDC conducted interviews with a biracial group of approximately 20 D.C. Fire Department Officers. (O'Leary Decl., P 7). As a result of these interviews, a nine-page narrative entitled "Tasks of Fire Sergeant, Lieutenant, Captain in Fire Suppression," was generated in November 1987. (Id.; Defendant's Exh. 3).

 Following these interviews, a Job Analysis Questionnaire was distributed to a larger sample of 54 officers. (Defendant's Exh. 5). These officers were also racially diverse. The purpose of the Questionnaire was to quantify and verify the accuracy of the initial data obtained from the interviews. The Questionnaire allowed a broader sample of officers the opportunity to examine the initial data and correct any inaccuracies regarding their job duties. (O'Leary Decl. P, 8; Barrett Decl., P 14). The results of the Job Analysis Questionnaire are summarized at pages 18-21 of the November 1991 Validation Study. (Defendant's Exh. 2).

 The TDC determined from the Questionnaire and the interviews with the officers that the three positions at issue -- Sergeant, Lieutenant and Captain -- were essentially the same in the responsibilities at the fire scene. The only significant differences are that, if there are two officers of different rank present, the one with the higher rank takes charge until the Battalion Chief arrives. With respect to fire house duties, Captains have some administrative duties not shared with the Sergeants and Lieutenants, such as sitting on disciplinary panels (O'Leary Decl., P 9). *fn8"

 The TDC further determined that there were basic knowledge areas that were important and common to all three ranks, and determined that the same Job Knowledge Tests would be administered to all three ranks. However, Dr. Holmes created two fire scene scenarios for each of the three ranks. (O'Leary Decl., P 10 (as amended by the witness at trial)).

 D. Development of the Job Knowledge Test

 The TDC's goal in conducting a job analysis was to determine what knowledge, skills, and abilities are necessary to function effectively in the D.C. Fire Department. The TDC incorporated its findings into the multiple-choice Job Knowledge Test. This test was based on the principle that those who can recognize the correct answer from among four supplied on a multiple choice of job knowledge are likely to be the better performers in the Fire Department. (O'Leary Decl., P 11).

 The development of the Job Knowledge Test proceeded in six phases. In Phase I, Dr. O'Leary met with a bi-racial group of 20 Sergeants, Lieutenants and Captains who served as Subject Matter Experts (SME's). Together they reviewed the Department's manuals and standard operating procedures, and pinpointed those areas which are particularly relevant to their jobs. (O'Leary Decl., P 12). The results of these meetings are summarized in the "Written Test Question Development Process." (Defendant's Exh. 6). In addition, these meetings are summarized in Appendix 3 of the November 1991 Validation Study, entitled "Development of the Job Knowledge Test." (Defendant's Exh. 2).

 In Phase II of the development of the multiple choice exam, Dr. O'Leary met with other groups of DCFD officers over a several day period in April 1989 in order to isolate further the exact written material that was important for officers to know. In addition, he visited fire houses to talk to Sergeants, Lieutenants and Captains about managerial and administrative tasks performed at the fire house. (O'Leary Decl., P 13). (See Defendant's Exh. 2, Validation Study at Appendix 3 ("Development of the Job Knowledge Test")).

 In Phase III, another racially diverse group of 24 Sergeants, Lieutenants and Captains reviewed the job knowledge areas previously identified by the Subject Matter Experts, adding or deleting areas as appropriate. In addition, these 24 officers were asked to weigh the various knowledge areas by spreading 100 points across the knowledge areas commensurate with his or her opinion of its relative importance. Thus, each participating officer gave a weight to a particular aspect of his job, such as Fire Scene, Rescue, and HazMat. (O'Leary Decl., P 14). The results of this process are summarized in the "Job Knowledge Weighting Form," which is attached as Appendix 1 to the Validation Study. (Defendant's Exh. 2).

 In developing the Job Knowledge Test, Dr. O'Leary took into account the relative weights that the officers had given to the different knowledge areas. Proportionately more exam questions were created for those knowledge areas which the SME's had deemed particularly important. For example, if a particular job knowledge area received 28% of the points, an attempt was made to come as close as possible to having 28% of the questions on the test originate from that area. This is shown in the Job Knowledge Test Plan, which is attached as Appendix 8 to the Validation Study. (Defendant's Exh. 2). Although there was some variation in the weights assigned by the individual officers, there were a sufficiently large number of participating officers to avoid undue arbitrariness. (O'Leary Decl., P 15).

 In Phase IV, Dr. O'Leary prepared the multiple choice questions. He was assisted by a bi-racial group of fire department officers and test question writers who were all located over 500 miles from Washington, D.C. (O'Leary Decl., P 16).

 During Phase V, Dr. Barrett analyzed the completed questions item-by-item over a period of months. Any "defective" questions were either replaced or modified. (O'Leary Decl., P 17; Barrett Decl., PP 17-19).

 E. Development of the Assessment Center, and Training of Assessors

 Dr. O'Leary also developed the Assessment Center portion of the examination. The Assessment Center is designed to test for behavioral characteristics essential to fire department officers. These characteristics are referred to as "dimensions." The Assessment Center is based upon the premise that those who demonstrate proficiency in simulated work activities during the selection procedure are likely to exhibit these behavioral characteristics on the job. A list of the dimensions is set forth in Appendix 9 of the Validation Study. (Defendant's Exh. 2). They include: dealing with people, decisiveness, judgment, leadership, planning and organization, verbal communication, and written communication. (O'Leary Decl., P 21).

 All three ranks participated in a Leaderless Group Discussion, designed to test several dimensions such as leadership and dealing with people. In this exercise, a group of six candidates met as a simulated committee with the responsibility for setting priorities for forty-three different work behaviors related to the job of company officer. Each group was observed by three assessors; thus, each assessor was responsible for observing two of the candidates. (O'Leary Decl., P ...

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