direct evaluation of the validity of the selection procedure." 29 C.F.R. § 1607.15(3)(a) & (b). See also Id. § 1607.15(C) (setting forth the particular information content validity reports should contain). The Court finds that the Validation Study and related documentation is sufficiently complete under this standard.
It is undisputed that the Defendant provided 16,000 pages of discovery to the Plaintiffs, and there is no serious allegation that the Defendant withheld any pertinent information. To the extent that the Defendant produced documents late (a few days before trial), they were stricken from the record. Moreover, there is no contention that the tardy production of documents was not due to inadvertent error. Finally, while the Plaintiffs argued that the Uniform Guidelines mandated maintenance of the "raw data" underlying the TDC's conclusions set forth in the Validation Report, they offer no authority for that claim. Indeed, while their own opinion witness, Dr. Hoffman, purported to rely on the Guidelines in attacking the validity of the 1991 examination, he further testified on cross-examination that he did not have "much familiarity" with the Guidelines. The Court thus credits the Defendant's opinion witnesses representation that all information required by the Guidelines was contained in the Validation Report. In any event, the Plaintiffs proffer no authority for the proposition that failure to maintain the actual "raw data" underlying the information contained in a Validation Study of a test that has otherwise not been shown to be invalid compels a Court to "throw out" the test entirely. As counsel for the Intervenor observed, such an argument resembles a tacit concession that the evidence presented is insufficient in itself to support a finding that the test was invalid under Title VII.
C. IN FAILING TO SHOW THE EXISTENCE OF EQUALLY EFFECTIVE, NON-DISCRIMINATORY ALTERNATIVES TO THE CHALLENGED EXAMINATION, THE PLAINTIFFS DID NOT MEET THEIR BURDEN OF PROVING THAT THE 1991 EXAM WAS DISCRIMINATORY IN VIOLATION OF TITLE VII
Once the Defendant produces evidence of a legitimate business justification for the challenged employment practice, the Plaintiffs may still persuade the factfinder that 'other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate [promotional] interests;' by so demonstrating, [the Plaintiffs] would prove that '[the employer was] using [the] tests merely as a 'pretext' for discrimination." Wards Cove, 490 U.S. at 660 (quoting Albemarle Paper Co., 422 U.S. at 425). See also Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 998, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988). "Factors such as the cost or other burdens of proposed alternatives are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals." Wards Cove, 490 U.S. at 661 (quoting Watson, 487 U.S. at 998).
The Plaintiffs' expert, Dr. Hoffman, mentioned several alternatives to the challenged 1991 promotional examination in his report and at trial. In particular, Dr. Hoffman mentions in his report the possibility of differential weighing of the examination, utilization of different passing points, and rescoring of the examination. (Plaintiffs' Exh. 63, p. 16). The Court finds no merit to Dr. Hoffman's suggested alternatives.
Indeed, the Court observes that Dr. Hoffman himself condemns all of his suggested alternatives. First, he states that differential weighing "cannot improve the situation," and that utilization of different passing points "must be discarded as an alternative" given his conclusion that the 1991 examination is invalid. (Id.) Second, as for his suggested alternative of rescoring the examination, Dr. Hoffman states that, while rescoring of the job knowledge part "might reduce adverse impact," the accuracy of rescoring the Assessment Center and the Fire Scene Scenario is affected by the passage of time. (Id. (emphasis added)). Dr. Hoffman concludes this section of his report by stating:
the specification of suitable alternatives, given that the current (1991) test must be abandoned, is beyond the scope of this report. . . . There are indeed suitable alternatives; ways of overcoming these problems, but in my opinion, the difficulties in the District of Columbia will not be solved by another set of examinations in the traditional vein.
Dr. Hoffman also testified that one feasible alternative to the job knowledge portion of the examination would be subjective evaluations by supervisory personnel. As it appears that Dr. Hoffman failed to familiarize himself with the history of this case or the prior Orders of this Court, the Court finds this alternative completely without merit. The promotional examinations were administered in connection with the Hammon Settlement Agreement, following six years of litigation over serious allegations of racial discrimination in the Department. Under such circumstances, to posit that subjective evaluations by supervisory personnel would be an equally effective but less discriminatory alternative than use of a three-part examination developed by an independent TDC and a Special Master appointed by this Court borders on the specious.
Finally, at oral argument Plaintiffs' counsel asserted that they met their burden of proving an equally effective non-discriminatory alternative through cross-examination of the Defendant's opinion witness, Dr. Barrett. In particular, Plaintiffs' counsel argued that Dr. Barrett acknowledged that the Job Assessment Center, which had no adverse impact, could have been afforded 80% weight, thereby reducing the adverse impact of the overall examination. However, Dr. Barrett called this alternative "ridiculous" because it would have marginalized the other portions of the examination which tested cognitive skills. In addition, the Plaintiffs' argument contradicts their position throughout the trial that the Assessment Center was invalid, as well as the conclusions of their own opinion witness, Dr. Hoffman, that because "none of the examination components can be considered valid[,] differential weighting cannot improve the situation." (Hoffman Report, p. 16). Accordingly, the Court finds no merit to the Plaintiffs' claim that affording more weight to the Assessment Center would have produced a less discriminatory -- but equally effective -- examination.
For the reasons articulated herein, the Court finds that the Plaintiffs have not proved their case under Title VII. In particular, the Court finds that, although the Plaintiffs established their prima facie case as to the 1991 exam (as it relates to the Sergeants' examination, but not as to the Lieutenants' and Captains'), the Plaintiffs did not carry their burden of proving that the exam was discriminatory. The Defendant made a credible showing that the entire 1991 examination was valid and job-related, thereby furthering the legitimate business concerns of the District of Columbia, and the Plaintiffs failed to prove otherwise. In addition, the Plaintiffs failed to present competent evidence that there was cheating on the examination. Finally, the Plaintiffs did not show that alternative methods of promotion exist that would have a less discriminatory impact Accordingly, the Court shall enter judgment for the Defendant and shall dismiss the above-captioned case from the dockets of this Court.
Furthermore, as a significant disparity appears to exist between the financial resources of the Plaintiffs and the Defendant, and as the litigation raised issues of public concern, the Court, in the exercise of its discretion, will not assess costs against the Plaintiffs in this case. See 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.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
June 24, 1995
For the reasons articulated in this Court's Memorandum Opinion issued of even date herewith, it is, by the Court, this 24 day of June, 1995,
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 in favor of the Defendant District of Columbia; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court, without costs to either party.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE