The opinion of the court was delivered by: John T. Curtin United States District Judge
In Complaint "B" in this case, plaintiffs claim that the City of Buffalo's policies and procedures for promoting Buffalo firefighters to the rank of lieutenant, including the use of a state-wide promotional examination given in 1998 (the "Lieutenant's Exam"), has resulted in intentional discrimination against African-American firefighters in violation of the Equal Protection and Due Process Clauses of the Constitution, 42 U.S.C. §§ 1981, 1983 and 2000e (Title VII), and New York State Human Rights Law (see Item 54). The City has now moved for partial summary judgment (Item 259) pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing several of plaintiffs' claims set forth in Complaint "B," and plaintiffs have cross-moved for summary judgment (Item 266) in their favor on their Title VII claim. Oral argument of these motions was held on October 22, 2007.
For the reasons that follow, both motions are denied.
The factual and procedural background of this litigation has been set forth at length in the court's several prior orders, and is well known to the court and to the parties. It is summarized briefly here as follows.
This action was commenced in February 1998 by Men of Color Helping All Society, Inc. ("M.O.C.H.A."), and several individual City of Buffalo firefighters, seeking declaratory relief and damages on their own behalf and as representatives of a proposed class of all African-American firefighters employed by the City during the three prior years. The original complaint contained several factual allegations relating to two separate employment practices--namely, (1) the City's policy for promoting firefighters to the rank of lieutenant, and (2) the drug testing policy implemented by the City and the firefighters union, Buffalo Professional Firefighters Association, Local 282.
In lieu of answering the complaint, the City moved to dismiss pursuant to Fed. R. Civ. P. 12(b). After meeting with counsel, the court determined that the drug testing and promotion issues should be addressed in separate pleadings. Accordingly, in October 1998, plaintiffs filed "Amended Complaint A" dealing with the drug testing policy (Item 24) and "Amended Complaint B" dealing with the promotion policy (Item 25), and the City filed renewed motions to dismiss.
Meanwhile, the City administered the Lieutenant's Exam*fn1 on March 14, 1998. A total of one hundred seventy-nine White firefighters and eighty-nine African-American firefighters took the Exam. One hundred thirty-three White candidates passed and forty-six failed, for a pass rate of 74.3 percent. Thirty-eight African-American candidates passed and fifty-one failed, for a pass rate of 42.6 percent. In September 1998, the City released a list of one hundred eighty-one firefighters who passed the 1998 Lieutenant's Exam and were certified as eligible for promotion.
In Amended Complaint B, plaintiffs made several allegations in support of their claim that the City's promotion policy discriminates against African-American firefighters. Specifically, plaintiffs alleged that the City uses a subjective point system to establish the list of firefighters eligible for promotion to the rank of lieutenant, and that this system is manipulated to favor White candidates in a number of ways (see Item 25, ¶¶ 21-24);*fn2 that the City unfairly influences the cut-off score by sponsoring White-only training sessions for the Lieutenant's Exam, and by releasing exam questions and subject areas in advance of the exam to White firefighters only (id. at ¶¶ 27-28, 30); that "[t]he test itself contains a racial bias which works to the disadvantage of African Americans" (id. at ¶ 29); and, that the City manipulates the eligibility list to favor White candidates in a number of ways (see id. at ¶¶ 31-34).*fn3
Based on these allegations, plaintiffs asserted causes of action for violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment (First and Second Causes of Action), 42 U.S.C. §§ 1981 and 1983 (Third Cause of Action), 42 U.S.C. § 2000e, et seq. (Fourth Cause of Action), and the New York Human Rights Law, N.Y. Executive Law § 296 et seq. (Fifth Cause of Action), seeking declaratory relief, compensatory and punitive damages, and attorney's fees. In October 2000, having retained new counsel, plaintiffs were allowed leave to file Second Amended Complaints "A" and "B" to add causes of action pursuant to 42 U.S.C. § 1985 (conspiracy to violate civil rights) and N.Y. Executive Law § 296(6) (aiding and abetting violations of the N.Y. Human Rights Law). Once again, the City moved to dismiss both complaints.
In July 2001, upon obtaining information that the City planned to use the 1998 eligibility list to promote twenty-four firefighters to the rank of lieutenant, plaintiffs filed a motion for a preliminary injunction to prevent the promotions from going forward. After receiving and reviewing the parties' submissions and hearing oral argument, the court found that plaintiffs had demonstrated neither a likelihood of irreparable harm in the absence of injunctive relief, nor a substantial likelihood of success on the merits, and denied plaintiffs' motion. The court stated:
The essential problem here is the absence of proof. There is some proof to indicate, in a preliminary way, that the 1998 promotion exam disparately impacted Black candidates for promotion. However, there is nothing in the record to indicate whether the promotion exam of 1998 was adequately job-related or not. If the 1998 promotion exam is eventually proved to be job-related--or "valid"--then the City will succeed in defeating plaintiffs' claims of discrimination . . . . (Item 93, pp. 5-6) (citing 42 U.S.C. § 2000e-2(k)(1)).
The court then took up the City's motions to dismiss the Second Amended Complaints. In an order entered March 27, 2002 (Item 109), the court granted the City's motions to the extent they sought dismissal of plaintiffs' conspiracy claims under 42 U.S.C. § 1985, plaintiffs' claims for punitive damages against the City and the individual City defendants sued in their official capacities, plaintiffs' Title VII claims against individual City defendants Cornelius Keane and John Sixt, and plaintiffs' claims against the Buffalo Fire Department as a separate entity. The court denied the motions to the extent they sought dismissal of plaintiffs' claims under §§ 1981, 1983, and Title VII.
Discovery proceeded slowly, punctuated by extensive motion practice--including a motion by plaintiffs for partial summary judgment seeking a ruling that, as a matter of law, the City's use of the 1998 Lieutenant's Exam had a disparate impact on African-American firefighters, and that the City had failed to prove the Exam was "job related for the position in question and consistent with business necessity" as required under Title VII. Plaintiffs relied upon the opinion contained in the expert report of Dr. Kevin R. Murphy, which was presented for the first time in connection with the motion for partial summary judgment. In response, the City cross-moved for relief pursuant to Fed. R. Civ. P. 56(f), arguing that the motion was premature because both expert and fact discovery was ongoing. The City also argued that there were genuine issues of material fact precluding summary judgment with respect to the job-relatedness/business necessity determination, relying on the job analysis and deposition testimony of Dr. Wendy J. Steinberg and Paul Kaiser, the New York State Department of Civil Service employees who were principally responsible for creating the Exam.
In an order entered on March 14, 2005 (Item 219), the court denied plaintiff's motion and granted the City's cross-motion, essentially adopting the approach suggested by the City to allow a reasonable opportunity for further discovery to assess the opinions expressed by Dr. Murphy in his expert report, and to determine whether to present opposing expert opinions as to the validity of the Lieutenants' Exam. The court also found it readily apparent from the parties' submissions that there are genuine issues of material fact precluding summary judgment in plaintiffs' favor at this stage of the proceedings, even without considering any facts sought by the City through further discovery. This is best evidenced by the stark contrast between the deposition testimony of Dr. Steinberg and Mr. Kaiser indicating that (at least in the assessment of the Department of Civil Service) the Lieutenant's Exam is demonstrably related to job performance, and Dr. Murphy's conclusion in his expert report that the Exam is not valid for the purpose of making ...