United States District Court, W.D. New York
JOHN T. CURTIN, District Judge.
The City of Buffalo has filed a motion (Item 580) for final relief under the operative interim remedial hiring order in this case, followed by termination of that order, based on the development of a written entry-level firefighter examination that meets the applicable legal standards for validation of selection procedures to be utilized for appointments to the Buffalo Fire Department Training Academy (the "Fire Academy"). The United States does not oppose the City's request for this relief. Members of Color Helping All Society, Inc. ("MOCHA"), plaintiff-intervenor, has filed a memorandum (Item 589) in opposition to the motion.
For the reasons that follow, the City's motion is granted.
In August 1978, this court found after trial that the City's Police and Fire Departments had engaged in a pattern or practice of employment discrimination against blacks, Spanish-surnamed Americans ("SSA's"), and women, in violation of Title VII of the Civil Rights Act of 1964 (as amended by the Equal Employment Opportunity Act of 1972), 42 U.S.C. § 2000e et seq. ("Title VII"). See U.S. v. City of Buffalo, 457 F.Supp. 612 (W.D.N.Y. 1978). Upon considering the parties' proposals for a remedy to adequately address the effects of past discrimination, the court entered a final remedial consent decree on November 23, 1979 (the "Remedial Decree") which, among other forms of injunctive relief, ordered the City to adopt and seek to achieve an interim goal of making 50% of all entry-level police and firefighter appointments from among qualified Black and SSA applicants. These "one-for-one" interim hiring requirements were to remain in effect until "the City has satisfied the court that it has developed valid selection procedures" in accordance with the Equal Employment Opportunity Commission ("EEOC") Uniform Guidelines on Employee Selection Procedures ("Uniform Guidelines"), 29 C.F.R. Part 1607. U.S. v. City of Buffalo, 633 F.2d 643, 648-49 (2d Cir. 1980) (modifying November 23, 1979 Remedial Decree by striking provision directing City to seek to achieve "long term goal" of reaching minority composition of police officers and firefighters comparable to that of City's work force as a whole according to census; affirming as modified).
For the next ten years, the recruitment and hiring needs of the City's Police and Fire Departments were met in substantial compliance with these interim requirements. Then, in September 1989, upon the City's presentation of evidence demonstrating that the minority composition of each department sufficiently reflected the minority composition of Buffalo's civilian labor force, the court supplanted the 50% interim hiring requirements with the following provisional hiring order, which has come to be known as the "Applicant Flow Order:"
Until a decision is made following a hearing or trial on the issue of whether the City has selection procedures in place that meet relevant legal standards, each class entering the firefighter academy shall include a percentage of Blacks, Hispanics, and women equal to the respective percentages of those groups among the applicants who took the written examination from which the list of eligible candidates was developed. Applicants who do not survive their probationary period shall not be counted toward fulfillment of this requirement. Minority women may be counted toward both the female and the minority applicant flow.
U.S. v. City of Buffalo, 721 F.Supp. 463, 469 (W.D.N.Y. 1989), aff'd, 993 F.2d 1533 (2d Cir. 1993). Subsequent to the entry of this order, the City has made several attempts to develop valid selection procedures for entry-level firefighters in accordance with applicable legal standards, without success,  and a number of Fire Academy classes have been convened under the requirements of the Applicant Flow Order.
In January 2013, after soliciting proposals from several nationally recognized test developers, the City retained EB Jacobs, Inc., of State College, PA, to develop and administer a written examination for the entry-level position of firefighter. According to the Declaration of CEO Rick Jacobs, Ph.D., the EB Jacobs Fire Service Aptitude Battery ("FSAB"), administered by the City on November 19, 2013 (the "2013 Exam"), was developed utilizing a comprehensive job analysis showing a strong relationship between test content and the requirements of the job of firefighter in the City of Buffalo (the "2013 Job Analysis"), and criterion-related studies showing positive correlation with job performance, in accordance with the requirements of Title VII and the Uniform Guidelines. See generally Item 580-5 (Declaration of Rick Jacobs).
A total of 2, 427 candidates took the 2013 Exam, representing a 78.6% increase in the overall candidate pool as compared to the last previous administration of the firefighter exam in 2008 (the "2008 Exam"). Id. at ¶ 11. The candidate pool was also more diverse: 39.9% of the candidates who took the 2013 Exam were Black, an increase of 80.5% over the 2008 Exam; 8.0% were Hispanic, an increase of 3.9%; and 14.7% were women, an increase of 75%. Id. According to the City, these increases are attributable in large part to an expanded recruitment program which placed special emphasis on social media and outreach to local community groups and churches. See Item 580-1 (Declaration of Carolyn A. Lenczyk, Acting Administrative Director of Civil Service for the City of Buffalo), ¶ 4; see also Item 590-2 (Declaration of Gladys "G.G." Herndon-Hill, Commissioner for Human Resources for the City of Buffalo), ¶ 6.
Using a scoring model developed in collaboration with the City and the U.S. Department of Justice ("DOJ"), EB Jacobs provided the City with a list of candidates ranked in descending order based on their performance on the 2013 Exam. On June 4, 2014, the City adopted the 2014 Civil Service Eligibility List for the entry-level firefighter position, listing 1, 929 candidates who passed the 2013 Exam. Item 580-4. As indicated in the court's order entered February 23, 2015 (Item 581) granting the City's request for an interim stay of the Applicant Flow Order pending determination of this motion, the City anticipates hiring in excess of 250 entry-level firefighters over the four-year life of the 2014 Eligibility List, due to the large number of current vacancies, expected retirements, and other attrition.
The City now seeks an order terminating the requirements of the Applicant Flow Order, and allowing future appointments to the Fire Academy to be made by rank order under the requirements of New York Civil Service Law, on the ground that the City has finally developed a written examination for the entry-level firefighter position that meets the legal standards for validating employment selection procedures having adverse impact on minority applicants. See Item 580-7. Relying primarily on the Jacobs Declaration,  the City contends that there is ample evidence for the court to find that the proposed use of the 2013 Exam is a valid selection procedure that is predictive or significantly correlated with important elements or work behavior relevant to the job of firefighter in the Buffalo Fire Department. The City also seeks a final order of relief under the Applicant Flow Order requiring the appointment of four Black candidates and one Hispanic candidate from the 2014 Eligibility List, in addition to those who would otherwise be appointed in rank order, as "makeup appointments" to account for the minority applicants who did not complete the last Fire Academy training class in April 2012. As indicated, the United States has joined the City's requests for final relief under, and termination of, the Applicant Flow Order.
For its part, MOCHA contends that the validity evidence relied upon by the City is too tenuous to support rank-order hiring, and proposes banded scoring as a means of providing more equitable seniority to Black candidates. Alternatively, MOCHA contends that if the court grants the City's motion, the relief ordered should be conditioned upon various measures to monitor any discriminatory treatment of minority candidates in subsequent steps of the selection procedure for entry-level firefighters. See Item 589.
For the reasons that follow, the City's ...