The opinion of the court was delivered by: John T. Curtin United States District Judge
In Second Amended Complaint "B" in this case (Item 54), 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 statewide promotional examination administered in March 1998 (the "1998 Lieutenant's Exam"), resulted in unlawful disparate impact and intentional discrimination against African-American firefighters in violation of 42 U.S.C. §§ 1981, 1983 and 2000e-2 ("Title VII"), and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296. On March 9, 2009, following a five-day evidentiary hearing, this court ruled that the 1998 Lieutenant's Exam was "job-related for the position and consistent with business necessity," as required under Title VII to validate the use of the Exam notwithstanding its disparate impact. M.O.C.H.A. Society, Inc. v. City of Buffalo, 2009 WL 604898, at *18 (W.D.N.Y. March 9, 2009). As a result, the court dismissed plaintiffs' complaint to the extent it sought relief under Title VII based upon disparate impact, leaving the claims of intentional discrimination to be adjudicated.
The City now moves for summary judgment dismissing these remaining claims. For the reasons that follow, this motion is granted, and Second Amended Complaint "B" is dismissed in its entirety.
The procedural and factual background of this twelve-year-old action has been set forth at length in the court's prior rulings, and will not be restated at this juncture. With regard to the remaining claims in Second Amended Complaint "B," plaintiffs allege that the City's use of a racially biased examination to establish its fire lieutenant promotion list constitutes a pattern or practice of intentional discrimination against African-American firefighters, as supplemented by the following discrete acts of discriminatory treatment:
1. Manipulating the promotion point system to the advantage of White firefighters by automatically listing White rookies ahead of African-American rookies, and by allowing the lieutenants' exam applications of White firefighters to be submitted before the applications of African-Americans (id. at ¶¶ 29-32);
2. Sponsoring examination preparation sessions that are restricted to White firefighters (id. at ¶ 33(a));
3. Making actual test questions or subjects available to White firefighters in advance of the examination that were not made available to African-Americans (id. at ¶ 34); and
4. Manipulating the eligible list for promotion to lieutenant in favor of White applicants by keeping retirement-eligible firefighters on active duty, awarding seniority to White provisional employees, and refusing outright to promote eligible African-American applicants (id. at ¶¶ 35-39).
In June 2007, after taking the depositions of named plaintiffs Willie Broadus, Robert Grice, Walter Jones, Victor Muhammad, William Raspberry, and John Tucker, the City moved for partial summary judgment dismissing the intentional discrimination claims on the ground that the deposition testimony provided no concrete evidence to support these allegations. Plaintiffs responded by filing a cross-motion for partial summary judgment on their disparate impact claim.
This court denied both motions in a decision and order dated November 9, 2007. M.O.C.H.A. Society, Inc. v. City of Buffalo, 2007 WL 3354211 (W.D.N.Y. November 9, 2007) (Item 291). The court found genuine issues of material fact precluding summary judgment with respect to plaintiffs' claim that the City engaged in a pattern or practice of intentional discrimination by utilizing the 1998 Lieutenant's Exam as the basis for promotions, notwithstanding its knowledge of the Exam's discriminatory impact or its failure to take any steps to determine whether the Exam was job-related and consistent with business necessity. Id., 2007 WL 3354211 at *5. The court also determined that, while the depositions of the named plaintiffs may indeed have failed to turn up sufficient proof of any of the discrete acts of intentional discrimination alleged in the complaint, plaintiffs were not precluded at the summary judgment stage from relying on the testimony of these individuals as circumstantial proof, along with the available statistical and expert evidence, in support of their claim that the City engaged in a municipal policy to deprive African-American firefighters of the same promotional opportunities offered to White firefighters. Id. at *6. Finally, the court found that the City had presented sufficient evidence to raise genuine issues of fact regarding whether the Exam was job-related and consistent with business necessity, thereby precluding partial summary judgment in plaintiffs' favor on their disparate impact claim under Title VII and setting the stage for the validation hearing. See id. at *6-*7,
The hearing took place over the course of five days in July and August, 2008. Dr. Wendy Steinberg and Mr. Paul Kaiser testified about the services they performed as the New York State Department of Civil Service officials charged with the task of developing the 1998 Lieutenant's Exam. The court also heard testimony from plaintiffs' employment testing expert, Kevin R. Murphy, Ph.D., and from the City's Director of Civil Service, Ms. Olivia Licata.
On March 9, 2009, the court issued its decision finding that the proof presented at the hearing was sufficient to show that the 1998 Lieutenant's Exam was developed "in a manner that is significantly correlated with important elements of work behavior which are relevant to the position of fire lieutenant as performed in the City of Buffalo," and that "the City has met its burden of demonstrating that the Exam is job-related for the position and consistent with business necessity...." M.O.C.H.A. Society, 2009 WL 604898, at *18. Based on these findings, the court dismissed plaintiffs' claim that the City's use of the Exam to establish a list for promotion to the rank of fire lieutenant resulted in unlawful disparate impact under Title VII.
The City has now renewed its request for summary judgment dismissing the remaining claims of intentional discrimination set forth in Second Amended Complaint "B." For the ...