Judge Rules City Must Produce Psychologist’s Report in Jacksonville Discrimination Suit

A judge presiding over a race discrimination lawsuit against the Jacksonville Fire and Rescue Department has ordered the city to produce the report of a psychologist hired in 2010 to provide advice relative to avoiding race discrimination in the promotional process.

Dr. Keisha Anthony, Ph.D., prepared a report in February, 2012 summarizing her opinions and suggestions regarding the JFRD promotional process. The report included a discussion of a job task analysis that suggested that “job knowledge (the sole focus of the examinations at issue) represented less than 25% of the job domain for the position of District Chief (Suppression) and just 12% of the job domain for another position she analyzed.”

Dr. Anthony’s report was prepared in advance of the lawsuit, filed by the US Department of Justice in April, 2012 and joined the Jacksonville Brotherhood of Firefighters, an a organization of black firefighters, and the NAACP. The court provided a concise overview of the suit:

• The United States alleges that the Consolidated City of Jacksonville (“COJ”), through its Fire and Rescue Department (“JFRD”), has used and continues to use written examinations on a pass/fail basis, as well as on a rank-order basis, for screening and selecting candidates for promotion to the ranks of District Chief (Suppression), Captain (Suppression), Lieutenant (Suppression), and Engineer, and such use has resulted in a disparate impact on African-American candidates, is not job-related and consistent with business necessity for the positions in question, and does not otherwise meet the requirements of Title VII.

The US DOJ learned about Dr. Anthony’s report earlier this year, but the city refused to produce it citing the attorney-client privilege and the work product doctrine. Dr. Anthony’s conclusions are in conflict with the city’s current experts. The report is referred to in the decision as the “Donnelly document.” As explained in the decision:

• To invoke the attorney-client privilege, a party must prove that “an attorney client relationship existed and that the particular communications were confidential.”
• “The work product doctrine was created to allow attorneys to make careful and thoughtful preparation for litigation, without fear that their adversaries will unfairly benefit from their efforts.”
• “Documents created for a concurrent purpose, i.e., not made ‘because of’ the anticipation of litigation but rather for other purposes in addition to the preparation for litigation, are not protected by work-product immunity.
• The relevancy of the Donnelly document cannot seriously be disputed.
• The COJ’s claim of attorney-client privilege is rejected because it has not shown that the Donnelly document was prepared for the purpose of obtaining legal advice. The evidence shows that the document was prepared by Dr. Anthony, on her own accord, to “put down [her] thoughts relating to the position that the city was in at the time.”
• It contained Dr. Anthony’s opinions and facts relating to the testing process that the COJ was utilizing at the time.
• The COJ’s claim of work product privilege is also rejected because it appears that the Donnelly document was created in the ordinary course of Dr.
• Anthony’s business, and the COJ has not established that the document was created principally or exclusively to assist in anticipated or ongoing litigation.
• The evidence does not indicate that the document was prepared because of the prospect of litigation or that the primary motivating purpose behind its creation was to aid in possible litigation.
• It was Dr. Anthony’s responsibility in the normal course of business to oversee the COJ’s testing and test development work, and to conduct job analyses for some of the promotional positions within the fire department, such as engineer, lieutenant, and district chief, which she stored in the COJ’s secure drive.
• Just because the document may have later been used to assist in litigation or settlement does not mean it was principally prepared for such purpose.

Here is a copy of the ruling issued November 13, 2015 by US Magistrate Monte C. Richardson: US v. Jacksonville Order

The city objected to Magistrate Richardson’s ruling bringing the matter before U.S. District Judge Timothy Corrigan last week. Judge Corrigan who ordered city attorneys to hand over the Donnelly document under court seal by next Friday, to aid him in rendering a final decision.

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