Buffalo Prevails in Race Discrimination Suit

The US Second Circuit Court of Appeals handed down a decision yesterday in a complicated race discrimination case involving the Buffalo Fire Department and the Men of Color Helping All Society, Inc., (M.O.C.H.A).

MOCHA sought to challenge promotional examinations for lieutenant held in 1998 and 2002 as having a disparate impact on black candidates. All tolled, two separate lawsuits and three separate appeals had been filed in the case. The 2nd Circuit referred to the three appeals as MOCHA I, MOCHA II, and MOCHA III. The July 30, 2012 decision addressed MOCHA II and MOCHA III. Quoting the court:

“A common question runs through these appeals, prompting us to hear them in tandem and now to decide them in a single opinion: Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue?”

Rather than give you my interpretation of the decision, here are the important points distilled down from 47 pages.

“In December 1997, Buffalo asked the New York State Civil Service Department to create a promotional examination for … fire lieutenant” [which was the prevailing practice at that time].

“..Dr. Wendy Steinberg… with the Civil Service Department, created the “Lower Level Fire Promotion” test series that was provided in response to Buffalo’s request. To create the Lower Level Fire Promotion test series…. Steinberg spent three years, from 1994 to 1997, conducting a job analysis of firefighters of all ranks from fire departments across New York. Based on this analysis, she designed examinations for each titled position…”

“… Steinberg invited subject matter experts from each of New York’s fire departments to meet with her to discuss the questions to be included in the examination’s sub-tests relating to fire lieutenants’ firefighting tasks, i.e., the sub-tests assessing an applicants’ fire attack and suppression, fire prevention, and rescue and first responder knowledge.   ..”

“…In providing Buffalo with its fire lieutenant promotional examination, the Civil Service Department also assumed responsibility for administering the test, which it did on March 14, 1998.  The results showed a significant disparate impact.  Of 179 white firefighters who took the test, 133 passed, a rate of 74.3%.  Of 89 black firefighters who took the test, 38 passed, a rate of only 42.6%.  Buffalo used these test results as its primary criterion in creating a fire lieutenant promotion list. ..”

“..Four years later, on April 6, 2002, the Civil Service Department again administered the … Promotion test … for fire lieutenant….  Although new multiple-choice questions were written for the 2002 examination, the test was based on the same job analysis Steinberg performed for the Lower Level Fire Promotion test series developed in 1998, covered the same content as the 1998 examination, and was scored in the same manner.  Plaintiffs allege and Buffalo admits that, in 2002, as in 1998, there was a significant disparity in the passing rates of white and black applicants who took the examination…”

A complaint was filed in 1998 by “.. M.O.C.H.A. Society, its president Michael Brown, and Buffalo firefighters Willie Broadus, Robert Grice, Robert Jones, Walter Jones, Victor Muhammad, William Raspberry, John Tucker, and Otto Brewer filed this action in February 1998, charging Buffalo with race discrimination both in its promotion policy and practice and in its enforcement of a drug testing program.  (refer case 1498)  ..”

 “..On July 30, 2003, M.O.C.H.A. Society and a different group of African American firefighters—Emanuel C. Cooper, Greg Pratchett, and Russell Ross—filed a similar complaint in the district court against the City of Buffalo, alleging that the 2002 examination was also discriminatory in violation of Title VII. ..”

“In 2008, the district court … conducted a five-day bench trial to determine whether Buffalo was liable for the racially disparate impact of the 1998 examination. In its March 9, 2009 memorandum opinion, the district court ruled in favor of Buffalo, finding that, despite the disparate impact of the 1998 test on African American candidates, Buffalo had sustained its burden of proving that the test was job related and consistent with business necessity, whereas M.O.C.H.A. had failed to carry its rebuttal burden to show that an alternative promotional examination could have been used without disparate effect.”

“..Buffalo subsequently moved for summary judgment on M.O.C.H.A.’s remaining claim of disparate treatment in connection with the 1998 examination as well as on the complaint challenging the 2002 examination.   Buffalo argued that the district court’s trial finding of job relatedness and business necessity with respect to the 1998 examination precluded M.O.C.H.A. from re-litigating those issues with respect to either its claim of disparate treatment in 1998 or its challenge to the commonly derived examination administered in 2002.  The district court agreed and concluded that, with the two tests’ validity thus established, M.O.C.H.A. had failed to adduce sufficient other evidence to raise any triable issues of fact.  Accordingly, on May 10, 2010, the district court granted Buffalo summary judgment on the disparate treatment claim pertaining to the 1998 test, and on May 12, 2010, it granted Buffalo summary judgment on plaintiffs’ general challenge to the 2002.  ..”

M.O.C.H.A  appealed the trial court rulings to the 2nd Circuit.

“To prove employment discrimination in violation of Title VII, a plaintiff need not show that an employer acted with the intent to discriminate. Rather, a prima facie violation may be established by statistical evidence showing that an employment practice has the effect of denying members of a protected class equal access to employment opportunities… Such a Title VII claim requires a plaintiff to make a statistical showing that a challenged employment practice has a disparate adverse impact on the protected class and, therefore, is usually referred to as a “disparate impact” claim….

“Here, there is no dispute that M.O.C.H.A. carried its prima facie burden to demonstrate disparate impact. Trial evidence showed that the passing rate for African Americans who took the 1998 examination (42.6%) was only 57.3% of the passing rate for whites who took the same test (74.3%). Under guidelines adopted by the EEOC, a selection rate for any Title VII protected class that is “less than four-fifths,” i.e., less than 80%, “of the rate for the group with the highest rate will generally be regarded . . . as evidence of adverse impact.”

“At that point, the burden shifted to Buffalo to show that the challenged 1998 test was “job related for the position in question and consistent with business necessity.””

“The district court determined that the 1998 examination measured content, and that Buffalo satisfied each of the [required] factors, finding that the Civil Service Department’s statewide job analysis was suitable to creating a lieutenant examination for the Buffalo Fire Department, the examination writers were reasonably competent, the examination was related to and representative of the content of the Buffalo fire lieutenant position, and the scoring system was fair and selected those applicants most qualified to serve as fire lieutenant.”

“This returned the burden to M.O.C.H.A. to show that a different test or selection mechanism would have served the employer’s legitimate interests “without a similarly undesirable racial effect.”… M.O.C.H.A. did not attempt to make such a showing. Rather, its trial strategy was limited to challenging Buffalo’s ability to carry its burden at the second step of analysis.”

“M.O.C.H.A. contends that because the challenged test was premised on the Civil Service Department’s statewide job analysis, in which Buffalo barely participated, the analysis amounted to only an “other cities guess” that the survey results were consistent with the job actually performed by lieutenants in the Buffalo Fire Department.

“M.O.C.H.A. charges that, as a matter of law, Buffalo was not entitled to rely on such guesswork and, by extension, that the district court clearly erred in similarly finding that the Civil Service Department’s job analysis was suitable to a promotional examination for the lieutenant position in the Buffalo Fire Department.”

“At the outset, we acknowledge that the Civil Service Department received minimal feedback from the Buffalo Fire Department in conducting its job analysis, and did not perform any on-site observations of that department or interview any of its members. Further, at trial, Buffalo did not call any expert witness to opine that the results of the statewide job analysis correlated to the Buffalo fire lieutenant position. Nor did it present any direct evidence from a fact witness within the Buffalo Fire Department as to the responsibilities of a lieutenant in that department.”

“Buffalo’s minimal participation in the Civil Service Department’s three-year statewide job analysis of firefighter positions is perplexing. So too is Buffalo’s strategic decision to defend against a disparate impact claim without calling either an expert or fact witness to link the lieutenant position within the Buffalo Fire Department to the Civil Service Department’s job analysis of that position statewide.

“On such a record, it would have been within the fact finder’s discretion to draw adverse inferences against Buffalo and to conclude that it had not carried its burden on the question of suitable job analysis…  The issue before this court, however, is not whether a fact finder could have found against Buffalo on issues on which it carried the burden, but whether the fact finder here was required by law to do so. We conclude that he was not.

“Application of the statewide job analysis to Buffalo was not a stab in the dark. Rather, it was based on a sound inference that, because reliable statistics showed that fire lieutenants across the state (and even the nation) shared the same critical tasks requiring the same critical skills, it was more likely than not that the same tasks and skills were critical to the fire lieutenant job in Buffalo…. The law permits inferential fact finding even though it may be less certain than findings from direct evidence.”

“Thus, despite Buffalo’s failure meaningfully to participate in the statewide analysis of the fire lieutenant position, we are satisfied that the district court still could find from the totality of the evidence that the Civil Service Department’s statewide job analysis was—more likely than not—suitable to identifying the tasks and skills relevant to the performance of that job in Buffalo.”

“[T]he record evidence was sufficient to permit the district court to find that it was highly unlikely that the fire lieutenant job in Buffalo required different tasks and skills from those identified in the statewide survey. This, in turn, permitted it to find that the statewide job analysis for fire lieutenants was suitable to Buffalo, notwithstanding its fire department’s minimal participation in the statewide survey.”

MOCHA also alleged that the “the evidence was insufficient to show that the generic sub-tests in the 1998 examination—intended to assess (1) understanding and interpreting written material, (2) training practices, and (3) supervision—were the products of reasonably competent test design and were related to, and representative of, the fire lieutenant position “

“The trial evidence was sufficient to establish that the generic sub-tests were the product of reasonably competent test design. In [prior rulings], we stated that the reasonable competence of an employment examination’s design can be called into doubt if (1) the examination was not created by professional test preparers, or (2) no sample study was performed to ensure that the questions were comprehensible and unambiguous. … Here, the trial record shows that the generic sub-tests were written by professional test preparers.

“M.O.C.H.A. also contends that there was no proof that the generic sub-tests “measure[d] anything.”

“First, M.O.C.H.A. submits that Buffalo failed to introduce statistical evidence demonstrating that an applicant’s success on the generic sub-tests is predictive of success as a fire lieutenant. This argument fails because the district court expressly found that the 1998 examination was content, not construct, validated, and that this content validation was an appropriate method for determining the examination’s job relatedness”

“[C]onstruct validation is “frequently impossible” because it requires “a demonstration from empirical data that the test successfully predicts job performance.” … By contrast, content validation does not require this predictive validation study, and only obligates a test-maker to show that the Guardians I factors were satisfied. … Thus, even if a predictive validation study would have been preferable… we cannot conclude that its absence was fatal to Buffalo’s defense in light of the district court’s uncontested finding that content validation was appropriate for determining the 1998 examination’s job relatedness.”

“[W]e conclude that the evidence of Steinberg’s methodology was sufficient to support the district court’s findings that the 1998 examination was content related and representative.”

“On plaintiffs’ disparate treatment challenge to the 1998 examination, the district court correctly concluded that plaintiffs could not re-litigate questions of job relatedness and business necessity decided against them at the bench trial of their disparate impact claim, and that M.O.C.H.A. had not established a genuine issue of material fact that Buffalo intentionally discriminated against African Americans by using the 1998 test results.”

“On plaintiffs’ Title VII challenge to the 2002 examination, the district court correctly relied on collateral estoppel to grant summary judgment in favor of Buffalo because the only matters in dispute had been resolved against plaintiffs in the earlier challenge to the 1998 examination, and there was sufficient identity between the plaintiffs in both actions.”

With that the Second Circuit upheld the trial court’s ruling in favor of the Buffalo Fire Department.

Here is a copy of the decision.11-2184_10-2168_complete_opn

Next stop for MOCHA would be the US Supreme Court.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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