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Howe v. City of Akron

United States Court of Appeals, Sixth Circuit

July 22, 2013

William Howe, et al., Plaintiffs-Appellees,
v.
City of Akron, Defendant-Appellant.

Argued: January 17, 2013.

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:06-cv-2779—John R. Adams, District Judge.

COUNSEL

ARGUED:

Irene C. Keyse-Walker, TUCKER ELLIS LLP, Cleveland, Ohio, for Appellant.

Dennis R. Thompson, THOMPSON & BISHOP LAW OFFICES, Akron, Ohio, for Appellees.

ON BRIEF:

Irene C. Keyse-Walker, Benjamin C. Sassé, TUCKER ELLIS LLP, Cleveland, Ohio, Cheri B. Cunningham, Patricia Ambrose-Rubright, Michael J. Defibaugh, CITY OF AKRON, Akron, Ohio, for Appellant.

Dennis R. Thompson, Christy B. Bishop, THOMPSON & BISHOP LAW OFFICES, Akron, Ohio, Bruce B. Elfvin, Barbara K. Besser, Stuart Torch, ELFVIN & BESSER, Cleveland, Ohio, for Appellees.

Before: COLE and DONALD, Circuit Judges; RUSSELL, District Judge. [*]

OPINION

COLE, Circuit Judge.

Defendant-Appellant City of Akron ("the City") appeals the district court's interlocutory order to promote eighteen Akron Fire Department ("AFD") firefighters. The order was issued after a jury trial resulted in verdicts and a judgment concluding that, under Title VII, the Age Discrimination in Employment Act ("ADEA") and Ohio law, the 2004 AFD firefighters' promotional exam adversely impacted twelve Caucasian Captain candidates on the basis of race, eight Lieutenant candidates on the basis of age, and three African-American Lieutenant candidates on the basis of both age and race. The City argues that (1) the injunction cannot stand because there is insufficient evidence to support a prima facie case of disparate impact liability; and (2) even if there is sufficient evidence for a prima facie case, the district court abused its discretion in issuing the injunction. Because the district court did not abuse its discretion in issuing the injunction, we affirm.

I.

A.

In December 2004, the City conducted promotional exams for the positions of Captain and Lieutenant in the Akron Fire Department. The two sets of exams were prepared, administered and scored by E.B. Jacobs, an outside testing consultant. Both the Lieutenant and Captain exams contained a 100-question multiple choice component on technical job knowledge and two oral assessment exercises. The Lieutenant exam also contained a written work-sample exercise. The Captain exam did not have a written exercise, but instead had an additional oral assessment involving a group exercise.

Promotion candidates were placed on an "eligibility list" in an ordered ranking. In order to be placed on the eligibility list at all, a candidate had to have a scaled score of at least seventy percent on the promotional exam. The scaled exam score was converted to a ninety-point scale, and then up to ten points were added, corresponding to the candidate's seniority level. The candidates were then ranked in order of their total scores, from highest to lowest, on the eligibility list.

The promotional process dictated that candidates be selected from the eligibility list according to the "Rule of Three, " which "required that for each vacant position, the three top-ranked candidates [be] considered for the vacancy." When there was a single vacancy, the chief of the fire department was supposed to interview the three candidates and then select one to promote. When there were multiple vacancies, a number of candidates from the top of the list, equal to 1.4 times the number of vacancies, would be certified for consideration and the chief would choose from among them. In fact, all candidates were promoted congruent with their place in a "straight rank-ordering" based on written and oral exam results. Interviews were conducted, ostensibly pursuant to the Rule of Three, but it is unclear whether or how the interviews contributed to the promotion selections.

Exam pass rates and promotion rates were as follows:

Rank

Class

Pass Rate

Promotion Rate

Lieutenant

Over-40

76% (29/38)

24% (7/29)

Lieutenant

Under-40

87% (55/63)

38% (21/55)

Lieutenant

Caucasian

85% (69/81)

36% (25/69)

Lieutenant

African-American

75% (15/20)

20% (3/15)

Captain

Caucasian

81% (26/32)

27% (7/26)

Captain

African-American

78% (7/9)

71% (5/7)

B.

The firefighter plaintiffs initially brought twelve employment discrimination claims against the City, challenging ...


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