The opinion of the court was delivered by: Reena Raggi, Circuit Judge:
M.O.C.H.A. Soc'y, Inc. v. City of Buffalo
Argued: November 15, 2011
KEARSE, WALKER, and RAGGI, Circuit Judges.
Appeals heard in tandem from judgments of the United States District Court for the Western District of New York (John T. Curtin, Judge) in favor of defendants on Title VII claims of race discrimination in the administration of the 1998 and 2002 promotional examinations for the position of fire lieutenant in the City of Buffalo Fire Department. See 42 U.S.C. § 2000e-2(a), (k). With respect to their disparate impact challenge to the 1998 examination, plaintiffs submit that the district court erred in finding, after a bench trial, that defendants had demonstrated that the examination in question was job related and consistent with business necessity based on a statewide job analysis in which Buffalo had minimally participated. With respect to their disparate treatment challenge to the 1998 examination, and their overall challenge to the 2002 examination, plaintiffs contend that the district court's award of summary judgment was based on an error of law insofar as it concluded that plaintiffs were barred from further litigating the job relatedness or business necessity of the two tests.
JUDGE KEARSE dissents in a separate opinion.
Plaintiffs, M.O.C.H.A. ("Men of Color Helping All") Society, Inc., and various named individuals, suing on behalf of themselves and as representatives of African American firefighters employed by the City of Buffalo (collectively, "M.O.C.H.A."),*fn2 appeal two judgments entered by the United States District Court for the Western District of New York (John T. Curtin, Judge) on May 14, 2010, and May 24, 2011, in favor of the City of Buffalo, its fire department, and the fire department's commissioner and deputy commissioner (collectively, "Buffalo"), on Title VII claims of race discrimination in making promotions to the rank of fire lieutenant based on 1998 and 2002 examinations that derived from a common statewide job analysis. Plaintiffs contend that, after conducting a bench trial, the district court erred in finding that Buffalo had successfully demonstrated that the test was job related and consistent with business necessity, despite the disparate impact of the 1998 examination on African American applicants. See M.O.C.H.A. Soc'y, Inc. v. City of Buffalo ("M.O.C.H.A. I"), No. 98-cv-99C, 2009 WL 604898 (W.D.N.Y. Mar. 9, 2009). Plaintiffs submit that the district court further erred in awarding defendants summary judgment on the disparate treatment challenge to the 1998 test, see M.O.C.H.A. Soc'y, Inc. v. City of Buffalo ("M.O.C.H.A. II"), No. 98-cv-99C, 2010 WL 1875735 (W.D.N.Y. May 10, 2010), and on the overall Title VII challenge to the 2002 test, see M.O.C.H.A. Soc'y, Inc. v. City of Buffalo ("M.O.C.H.A. III"), No. 03-cv-580-JTC, 2010 WL 1930654 (W.D.N.Y. May 12, 2010), based on a determination that plaintiffs were barred from further challenging the job relatedness and business necessity of the two similarly derived promotional examinations.
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? We answer that question in the affirmative on the record developed in these related cases. While employer-specific data may make it easier for an employer to carry his burden at the second step of Title VII analysis, such evidence is not required as a matter of law to support a factual finding of job relatedness and business necessity. Where, as here, the district court hears extensive evidence as to how an independent state agency
(1) determined, based on empirical, expert, and anecdotal evidence drawn from fire departments across New York and the nation, that the job of fire lieutenant, wherever performed, involves common tasks requiring essentially the same skills, knowledge, abilities, and personal characteristics; and (2) developed a general test based on those findings, we conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo's use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity.*fn3 For this reason and others stated in this opinion, we affirm both challenged judgments in favor of defendants.
In December 1997, Buffalo asked the New York State Civil Service Department ("Civil Service Department"), to create a promotional examination for the position of fire lieutenant in its fire department. See N.Y. Civ. Serv. Law § 23(2) (establishing that Civil Service Department shall prepare employment examinations for municipalities upon request). It was then standard practice for Buffalo to rely on the Civil Service Department for examinations for municipal civil service positions rather than to devise its own tests.*fn4 In making the request, Buffalo provided the Civil Service Department with its fire department's most recent job specifications for the fire lieutenant position, the position's anticipated salary level, and promotion eligibility criteria.*fn5
Dr. Wendy Steinberg, an associate personnel examiner with the Civil Service Department, created the "Lower Level Fire Promotion" test series that was provided in response to Buffalo's request. Steinberg testified that this test series was devised for use in promoting candidates to various firefighting positions, including fire lieutenant, in fire departments across New York. Indeed, municipalities across New York used the test series for that purpose.
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's job analysis had a dual focus: (1) the tasks firefighters perform and (2) the skills, knowledge, abilities, and personal characteristics ("SKAPs") a person would be expected to possess on the very first day in a particular position. Steinberg testified as to how her job analysis was consistent with the joint standards of employment test design published by the American Psychological Association, the American Education Research Association, and the National Council on Measurement in Education, as well as with guidelines promulgated by the Equal Employment Opportunity Commission ("EEOC").
In beginning her job analysis in 1994, Steinberg first collected job specifications from various New York fire departments for each submitted firefighting job title. From these specifications, she assembled a list of 190 identified tasks performed by firefighters of various ranks, which she reviewed with members of the Civil Service Department's Fire Advisory Committee ("Fire Advisory Committee"), a panel of experts on the administration of fire departments. Steinberg then used the task list to create a statewide survey that, in April 1995, asked firefighters to rank each identified task according to how critical it was to the performance of firefighters' specific jobs within their departments. With the Fire Advisory Committee's assistance, Steinberg also created a second survey that, in October 1996, asked firefighters to rank listed SKAPs based on how critical they were to the respondents' particular positions. Besides identifying the skills, knowledge, abilities, and personal characteristics necessary to perform the responsibilities of a specific job title, this survey was intended to provide a cross-reference for data obtained from the task survey.
The task and SKAP surveys were sent to every incumbent firefighter in New York, with the exception of those serving in New York City and Rochester.*fn6 Steinberg followed up with non-responsive survey recipients in order to maximize the data obtained. In the end, of 5,934 task surveys sent out, 2,502 responses were received. Of those surveys, 2,994 were sent to firefighters serving in the state's twelve largest jurisdictions (other than New York City and Rochester),*fn7 from whom 1,218 responses were received. Seven hundred ninety-five of the surveys were sent to firefighters holding fire lieutenant positions, with 316 responding. The responses in all three of these categories exceeded the numbers required by accepted statistical methodologies to establish 95% confidence in the survey results.*fn8 Similarly, of 5,934 SKAP surveys sent, 1,604 responses were received, a number also sufficient to obtain 95% statistical confidence.*fn9 By contrast, of 833 task surveys sent to Buffalo firefighters, only 68 responses were received, a number too low for the results to be reliable by themselves. Further, no Buffalo firefighter responded to the SKAP survey. Upon receipt of survey responses from across New York, Steinberg grouped together the tasks identified as most critical to each firefighter title, including fire lieutenant. She performed a similar analysis of the SKAP survey responses and, with the assistance of other Civil Service Department staff, linked the most highly ranked SKAPs to corresponding highly ranked tasks. Steinberg then asked the Fire Advisory Committee to review and confirm the links drawn.
This process ultimately yielded six sets of task and SKAP categories that became the sub-test areas for the challenged fire lieutenant promotional examinations: (1) fire attack and suppression, (2) fire prevention, (3) rescue and first response, (4) understanding and interpreting written material, (5) training practices, and (6) supervision. These sub-test areas were approved by the Fire Advisory Committee.
Despite Buffalo's low response rate to the task and SKAP surveys, Steinberg determined that her statewide analysis was properly relied on in responding to Buffalo's request for a fire lieutenant promotional examination because of the overall consistency in the task and SKAP rankings of fire lieutenant respondents across New York. Despite the fact that responding fire lieutenants worked in different jurisdictions and in fire departments of varying sizes, Steinberg found a 90% correlation in the tasks they identified as critical to their job, in contrast to responses received from firefighters in other high-ranking positions, which showed more variance. Steinberg's conclusion that common tasks and SKAPs were critical to the job of fire lieutenant across New York was buttressed by (1) the Fire Advisory Committee's review and approval of the tasks and SKAPs that she had identified for testing in a fire lieutenant examination, and (2) fire lieutenant promotional test plans from fourteen large fire departments across the United States, which were entirely consistent with the fire lieutenant test plan that Steinberg developed for general use by New York fire departments.*fn10 Steinberg testified that obtaining such expert advice and cross-validating test plans against those of other jurisdictions are acceptable procedures under the joint standards of employment test design.
In addition, 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. The Buffalo Fire Department did not accept this invitation. Nevertheless, the multiple-choice questions that emerged from these discussions were then reviewed and approved by the Fire Advisory Committee. Multiple-choice questions for the remaining general sub-tests, i.e., understanding and interpreting written material, training practices, and supervision, were written by another Civil Service Department unit responsible for drafting general questions appearing on employment examinations across government agencies. Each sub-test carried the same weight in a candidate's final score, and Steinberg set the passing score at 66 correct answers out of 105 questions, which was lower than the maximum passing score of 73 under state law.
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 Lower Level Fire Promotion test series for fire lieutenant applicants in the Buffalo Fire Department. 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.*fn11
C. Procedural History of This Action
1. The Complaint Challenging the 1998 Test
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. M.O.C.H.A. subsequently amended its pleadings to separate these claims into two complaints, with the October 2000 second amended complaint "B" here at issue alleging that Buffalo used a racially discriminatory examination in 1998 as the basis for promoting firefighters to the rank of fire lieutenant.*fn12 As M.O.C.H.A. alleged and later proved, African Americans passed the 1998 examination at a substantially lower rate than white candidates seeking promotion to fire lieutenant. Further, African Americans were generally under-represented in the Buffalo Fire Department's upper ranks: while African Americans made up 30% of the city's firefighters, they composed only 4% of fire officers at the rank of lieutenant or higher. Based on these facts, as well as allegations of intentional discrimination, M.O.C.H.A. charged Buffalo under Title VII with race discrimination on both disparate impact and disparate treatment theories. See 42 U.S.C. § 2000e-2(a), (k). As relief, M.O.C.H.A. sought an injunction voiding promotions made pursuant to the 1998 examination, as well as back pay, punitive damages, and attorneys' fees and costs.
2. The Complaint Challenging the 2002 Test
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 ...