Ohio firefighters awarded $2M in promotion test lawsuit

By John Higgins
Akron Beacon Journal (Ohio)

AKRON, Ohio — A federal jury awarded 23 Akron firefighters nearly $2 million after finding that a 2004 test Akron used for lieutenant and captain positions skewed against white applicants for captain's rank and black candidates for lieutenant.

The jurors, who delivered their verdict this afternoon before U.S. Judge John R. Adams, also found that the results of the lieutenants' test also discriminated against candidates over the age of 40.

Attorney Dennis Thompson was pleased with the age discrimination verdict, which he said was among the first in the country and indicative of police and fire departments increasingly passing up older members for promotion.

The firefighters never had to prove the city intended to discriminate, only that the effect of the exams was discriminatory.

"This is a good day for these guys," Thompson said. "The jury just saw it for what it was."

Five white women, one black woman and one white man composed the jury. All but one were over the age of 40.

The jury awarded each of the 11 plaintiffs denied promotion to lieutenant $9,000 for back pay and $72,000 for pay they would have received in the future at that rank.

The jury awarded 11 applicants for captain $10,000 damages and $80,000 in future pay.

The jury awarded a deceased plaintiff's family $10,000 in back pay because of the flawed captain's exam.

Damages totaled $1,891,000, not including attorney fees and court costs. The trial lasted almost three weeks, involved statistical analysis, industrial psychology and expert witnesses on both sides.

Jurors deliberated about seven hours.

"I'm sure the jurors had a very difficult decision to make and complicated evidence," said Assistant Law Director Patricia Ambrose Rubright. She said the city has not made a decision about appealing the verdict, but anticipated several post-trial motions that could affect the damages award.

Those post-trial motions will include one from the firefighters asking Judge Adams to order the city to find a new process for promotions, which is what lieutenants William Howe, Brad Carr and Greg Snyder say they wanted all along.

They took the captains' exam in 2004 and led the fight that eventually resulted in 23 plaintiffs. Initially they said they just wanted answers from the city about how the test was put together.

"It smelled bad from the beginning," Howe said.

The pair compared notes and decided to ask the city for more information about the test. They received some public records, but were denied specific information about the process used by EB Jacobs, the Pennsylvania testing company the city hired to do the test.

Howe and Carr sued for the records under the federal Freedom of Information Act, but lost when the Ohio Supreme Court ruled that some of the information they requested included "trade secrets," which are exempt from disclosure. The court concluded that EB Jacobs, a private company, could be harmed if the material was made available to the public.

They had reached the limit of what they could accomplish without legal help.

"Testing and selection issues are very complex," said attorney Bruce Elfvin, who worked on the case, along with Thompson's law partner, Christy Bishop.

Carr, Howe and Snyder all said they weren't out to disparage the captains and lieutenants who were promoted, but they believed that filing the lawsuit was their only option to correct the process.

"We never thought that they didn't deserve the promotion," Carr said.

First, the plaintiffs had to prove the test had an adverse effect based on race and age. If they succeeded, then the city had to prove the test was job-related. If the city prevailed on that question, then the burden of proof shifted back to the plaintiffs to prove the city had better alternatives.

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