# Appendix — City of Columbus v. Brunet > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1399%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1988 - **Citation:** 485 U.S. 1034 ## Text 87-142] Supra Cour, US. FILED JAN 19 1988 . ae JOSEPH F. SPANIOL, JR, _CLERK IN THE SUPREME COURT OF THE UNITED STATES October Term, 1987 THE CITY OF COLUMBUS, OHIO, et al., Petitioners, V. ANN BRUNET, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT APPENDIX TO PETITION EILEEN A. GROVES Assistant City Attorney 90 West Broad Street Columbus, Ohio 43215 (614) 222- 7385 Counsel of Record RONALD J. O'BRIEN City Attorney Columbus, Ohio Of Counsel February 15, 1988 INDEX TO APPENDIX PER CURIAM Opinion of Court of Appeals, filed August 25, 1987......-..cesseeeee Denial of Petition for Rehearing Filed Geteber 19, 1GO7... once scecccces Opinion and Order of District Court OE Se 2B, PRS eee ee ee eee wees Judgment Entry, filed May 14, 1986....... Opinion and Order of District Court OE TR FO BUS se 6 ccc ce keer tee ce wenn aes Judgment Entry, filed Nunc pro tunc BR, BOB i oct ce wem cite cas cetwersees Opinion and Order of District Court, CED Fe. RO co 6 scence wrasaee esa Opinion and Order of District Court, CALE DUO BA, BORE 6s 0 case vest swens es la WT RN D a Adka I ad ae Nos. 86-3557 and 86-3603 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ANN BRUNET, et al., Plaintiffs—Appellees; Cross—Appellants, On Appeal from the Vv. United States District Court for the Southern District of Ohio. CITY OF COLUMBUS, OHIO, et al., Defendants—Appellants; Cross—Appellees. / BEFORE: KENNEDY, MILBURN, and NORRIS, Circuit Judges. PER CURIAM. Defendants—appellants/cross—ap-— pellees the City of Columbus, et al. ("City") and plain- tiffs—appellees/cross—appellants Ann Brunet, et al. ("ap— plicants") appeal the District Court's interlocutory judgments of May 11, 1986 and May 30, 1986. Because we find that this Court no longer has jurisdiction to hear this appeal and cross—appeal, we dismiss them. Plaintiffs Ann Brunet, Lynn Walters, Rebecca Schumacher and Edwina Hornung and the = 2h Aue.25,198 class they represent challenge the tests that the City has used to hire firefighters since 1975. The named plaintiffs took the tests administered in 1980 and 1984, none of them was selected to be a firefighter. They alleged in a two-count complaint that the 1980 and 1984 tests discriminated against women in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1983. They sought injunctive and back pay relief on behalf of themselves and the women they represent. On May 11, 1986, the United States District court for the Southern District of Ohio entered a judgment for the City on the section 1983 claim. The court also filed separate judgments for the City on the Title VII claim with respect to the 1980 test,and a judgment for the applicants on the Title VII claim with respect to the 1984 test even though these claims —. 2 were not made in separate counts nor were the various years' tests separate claims.! On June 26, 1986, the District Court entered a judgement nunc pro tunc to May 30, 1986 with respect to the remedy for the Title VII violation found, ordering the parties to comply with the following terms and conditions of the District Court's Opinion and Order of May 30, 1986: 1) the City was enjoined from hiring any entry level firefighters on the basis of its new, 1986, test until it had complied with the order; 2) the City was required to submit to the Court a report detailing expert analysis of the 1986 test. 3) if the Court found the 1986 test to be content valid, then the City was required to report to the Court the results of administering the 1986 test to the incumbent firefighters. 4) Once the City had formulated a content valid test and the Court had determined pass/fail scoring procedures, the city was required to administer the new test to all 1984 female applicants who responded to notice. S) Once*’ the City had completed the steps outlined above, they could — ' hire on the basis of the results of the 1986 test. However, the City must hire males and females in proportion to the relative proportion of males and females achieving passing scores. 6) Since the applicants had prevailed in part upon an issue determining the rights of the parties, they could apply for interim fees. The City and the applicants each appealed from these judgments. However, since the time of these orders the City has complied with the May 30, 1986 (June 26, 1986 nunc pro tunc order) order and the District Court has approved a new, 1986 test. Opinion and Order of June 12, 1987 at 3.2 At the time of these judgments the District Court had not rendered a final decision. Indeed the litigation is still pending before the District Court. A final decision is one which "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin sv. United - 48 — States, 324 U.S. 229, 233 (1945). Since the District Court had not yet determined the legality of the City's new, 1986 test at the time of these appeals, it had not yet ended the litigation on the merits. Thus this Court has jurisdiction to hear these appeals only if they are from “interlocutory orders [s] . . . granting, continuing, refusing or dissolving injunctions or refusing to dissolve or modify injunctions" under 28 U.S.C. § 1292(a)(1), if they fall within the collateral order doctrine, or if they are from judgments on separate counts and the District Court has certified in accordance with Fed. R. Civ. P. 54(b) that there is no just reason for delay. The District Court has not made any such certification. As to section 1292(a)(1), "because § 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule, ‘[ujmless a litigant can show that an interlocutory order of the district a SA court might have a serious, perhaps irreparable, consequence, and that the order can be effectually challenged only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal."' Gillis v. United States Dep't of Health & Human Serv's., 759 F.2d 565, 567 (6th Cir. 1985) (quoting Carson _v. American Brands, Inc., 450 U.S. 79, 84 (1981)). A collateral order is appealable only if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action and is effectively unreviewable on appeal from a final judgment. Stringfellow _v. Concerned Neighbors in Action, 107 S. Ct. 1177, 1181-82 (1987). The judgment of May 11, 1986 that the City's 1984 test violated Title VII is neither an injunction nor a collateral order. The District Court, by its judgment = of May 30, 1987, enjoined the City from hiring on the basis of its new, 1986 test until it had complied with the order of May 30, 1986. That order required the City to develop a new, content-valid test, have the Court approve it, and administer it to the 1984 applicants. Once they had done that, the City could hire on the basis of the 1986 test, but they had to hire males and females in proportion to their presence in the group of candidates who had passed the test. This injunctive order was appealable. However, it is now moot. The City has complied with part of the order by developing a test which the District Court has found to be content-valid and by administering it to the 1984 applicants. At oral argument this Court inquired of the City as to whether there was any part of the order which had not already been performed. The City conceded that the only portion of the order which is not moot is the requirement that they hire a certain a Te ws proportion of women. However, the _ present requirement to hire a certain proportion of women arises from the District Court's Opinion and Order of May 21, 1987. That later provision would require present hiring even if the court were to vacate the injunction of May 30, 1986. Thus the entire May 30th injunction is moot. The City also appeals that portion of the District Court's Opinion and Order of May 30, 1987 which holds the applicants had prevailed "in part" for the purpose of interim fees. Since the District Court has not in fact awarded interim fees to the applicants, this appeal is premature. See, Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1104-05 (6th Cir. 1985). The applicants cross-appeal the District Court's finding that the City had not violated Title VII with respect to the 1980 test, the judgment for the City on the section 1983 claim, and subsidiary issues decided by — the District Court in finding that the City had violated Title VII with respect to the 1984 test. Neither the ‘judgment nor the findings meet the requirement for pealability and the applicants conceded this at oral argument. Arguably the judgment that the City had not violated Title VII with respect to the 1980 test is an order refusing an injunction since the applicants requested relief in the form of an injunction. However, the applicants have not attempted to show that the order could have irreparable consequences, thus section 1292(a)(1) does not provide this Court with jurisdiction with respect to this claim. The collateral order doctrine is not relevant to any of these claims because they all relate directly to the merits of the action. The appellants may not appeal the District Court's findings on issues subsidiary to the judgment on the Title VII claim with respect to the 1984 ea ae test. The applicants cannot appeal the district Court's reasoning in reaching the judgment; appellate courts review judgments, mot statements in opinions. California v. Rooney, No. 85-1835, slip op. at 3 (U:S. 1987) (per curiam). Accordingly, the appeal is dismissed as moot. Each party will bear its own costs. ds The District Court filed an opinion and order discussing these claims on May 13, 1986. a In its Opinion and Order of May 21, 1987 the District Court repeated its order to hire males and females in proportion to their relative pass ratio on a revised 1986 test. Opinion and Order of May 21, 1987 at 43. ISSUED AS MANDATE: November 17, 1987 Costs: None - 10a - Nos. 86-3557 86-3603 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ANN BRUNET, ET AL., Plaintiffs—Appellees, Cross—Appellants, Vs. ORDER CITY OF COLUMBUS, OHIO: ET AL., Defendants-Appellants, Cross—Appellees Upon consideration of the appellants, cross—appellees' petition for rehearing, IT IS ORDERED that the petition for rehearing be, and it hereby is, DENIED. ENTERED BY ORDER OF THE COURT John P. Hehman, Clerk -lla- UNITED STATES DISTRICT COURT SOUTHERN OHIO DISTRICT EASTERN DIVISION ANN BRUNET, et al., Plaintiffs, Vv. Case No. C-2-84-1973 CITY OF COLUMBUS, et al., Defendants. OPINION AND ORDER In this action, the named plaintiffs and the class of similarly situated women that they represent challenge certain parts of the tests used by the City of Columbus to select entry-level firefighters since 1979. Plaintiffs Ann Brunet, Lynn Shearrow, Rebecca Schumacher and Edwina Hornung took the tests administered in 1980 and 1984. None of the plaintiffs was selected as a firefighter. Plaintiffs contend in this litigation that they were subjected to discriminatory tests in 1980 and 1984. The defendants are the City of Columbus; the Columbus Civil Service Commission; Dana Rinehart, Mayor of Columbus; and Alphonso Montgomery, Safety Director. For convenience, the defendants -12a- are often referred to as "the City". This action was originally brought under Title VII of the Civil Rights Act of 1964, 29 U.S.C. §s 2000e et seq.; later the complaint was amended to include a claim under 42 U.S.C. § 1983. Plaintiffs seek injunctive and backpay relief on behalf of themselves and the class of women they represent. Plaintiffs Shearrow, Schumacher and Hornung applied for and took the firefighter selection tests in 1980. Based upon their scores on the exam, plaintiffs were placed on a rank-ordered list of white applicants, to be selected for further consideration in order from that list. Pursuant to this Court's Decree in Dozier v. Chupka, 395 F. Supp. 836 (S.D. Oh. 1975) (Kinneary, J.), the City has hcihabiiniale dual hiring lists for black and white applicants for firefighter and one-for-one hiring from those lists to remedy past racial discrimination. Of a total of 626 applicants ranked = on - 13a - the 1980 list, Shearrow ranked 193, Hornung ranked 319, and Schumacher ranked 571. Jt. Ex. 1. Plaintiffs Shearrow and Schumacher timely filed charges of discrimination with the Ohio Civil Rights Commission, Jt. Ex. 30-31, and received right-to-sue letters from the Equal Employment Opportunity Commission. Tr. 214.1 Plaintiff Ann Brunet took the entry-level firefighter test held in 1984. She was ranked 464 on the list of non-black applicants. Jt. Ex. 5. Like the other plaintiffs, she was not selected as a firefighter. She timely filed a charge of discrimination and received a right-to-sue letter. Jt. Ex. 32, 26. In both 1980 and 1984, the firefighter examination consisted of a written examination and a physical test. In 1980, the written test consisted of four sub-tests: a reading comprehension test, a mechanical reasoning test, and two — l4a- psychological profiles. Stip. #11. The reading comprehension test was pass/fail; the remaining three tests were scored, and weighted equally to make up 70% of an applicant's total score. Stip. #12. The physical test consisted of seven events, six of which were scored. Timed scores were used to compute a physical exam score which constituted 30% of an applicant's total score. -Stip. #15. In 1984, a few changes were made, but the general approach remained the same. The written test consisted of a reading comprehension test and mechanical reasoning test, both of which were scored, and weighted equally to constitute 70% of an applicant's total score. Stip. #31. The physical test was composed of the same events as in 1980 with the exception of one event, which was dropped. As in 1980, the score on the physical test constituted 30% of an applicant's total score. Stip. #35. - - 15a - In both years, applicants were ranked in order of their total score on separate eligibility lists for white and black applicants. Stip. #23, 36. From time to time, applicants were taken from the lists in order of their rank to be certified to the Columbus Director of Public Safety for consideration for appointment as firefighters. Before being so certified, however, in both 1980 and 1984, applicants were required to pass a ladder test--which involved climbing a ladder to a height of five stories and descending--and a bicycle ergometer test--whicn measured heart rate in response to physical stress. Stip. #24-26, 37. In addition, applicants were required to pass a medical examination and a background check, and to undergo an interview with a board comprised of members of the Division of Fire. Stip. #27, 37. Applicants who met these requirements were then appointed as firefighters, = 6a - as necessary, in the order of the ranking upon the dual lists. Stip. #28, 38. During the life of the 1980 lists, a total of 109 applicants were appointed as firefighters, four of whom were female. Stip. #29. One hundred and twenty-six appointments, including two females, were made from the 1984 list. Stip. #39. Plaintiffs challenge two components of the firefighter examination: the physical test and the mechanical reasoning test, as discriminatory against female applicants. Plaintiffs contend that the lower scores earned by female applicants on these two components contributed substantially to lower total scores, with the result that fewer female applicants were ultimately selected. Further, they contend, these test components have not been shown by the City to reflect accurately the actual requirements of the job of firefighter. -17a- In their amended complaint, plaintiffs set forth two legal theories. First, they contend that the tests employed by the City have an adverse impact upon female applicants and are not job related. First Amended Complaint, Paragraph 6. This is a theory of prohibited disparate impact under Title VII. Second, plaintiffs contend that the discriminatory acts of the defendants are intentional and violate § 1983. Plaintiffs did mot seriously pursue the claim of intentional discrimination at trial or in their post-trial memorandum. In Part I of this Opinion, the Court briefly states its reasons for concluding that plaintiffs have failed to produce sufficient evidence to justify a finding that the defendants engaged in intentional discrimination against women in connection with recruitment of firefighters. This leaves plaintiffs' adverse impact theory for consideration. In Albemarle Paper Co. v. Moody, - 18a - 422 U.S. 405 (1975) the Supreme Court described the burdens of the parties in such a disparate impact case as follows: In Griggs v. Duke Power Co., 401 U.S. 424 (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets “the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.” Id., at 432. This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If an employer does then meet the burden of proving that its tests are “job related," it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in “efficient and trustworthy workmanship.” Id., at 801. Id., at 425; accord, Harless _v. Duck, 619 F.2d - 19a - 611, 616 1.6 (6th Cir.), cert. denied, 449 U.S. 872 (1980). The burdens are identical in a case involving alleged discrimination on the basis of sex. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). The defendants have argued that the plaintiff class has failed to meet its initial burden of showing adverse impact from either the 1980 or 1984 examinations. Upon consideration of the evidence and the arguments of the parties, the Court concludes, in Part Il of this Opinion, that the defendants’ arguments are partially meritorious. With respect to the 1980 examination, female applicants who had completed the testing process were selected at essentially the same rate as were similarly situated male applicants. In the judgment of the Court, this fact is fatal to any claim that the 1980 testing and selection process had an adverse impact upon female applicants. However, the - 20a - Court further concludes that plaintiffs have carried their initial burden of showing that the 1984 testing and examination process had an adverse impact upon female applicants. As a result of these determinations, only plaintiffs' Title VII claim regarding the 1984 examination remains for consideration. As a result of plaintiffs' demonstration of adverse impact in the 1984 firefighter examination, it becomes defendants' burden to show that the tests reflect the actual requirements of the job. This burden is often expressed by saying that the defendants must demonstrate that the test is job-related or, equivalently, valid. Having considered carefully the testimony at trial, including the testimony of the parties' respective expert witnesses, and having reviewed the documents submitted as exhibits, the Court concludes, in Part Ill of this Opinion, that the - 2la- defendants have failed to demonstrate’ the job-relatedness of the 1984 physical examination. On the other hand, the Court further concludes that defendants have adequately justified the mechanical reasoning test, which has also been challenged by the plaintiffs. In the Court's Opinion, there are two difficulties with the 1984 physical examination. One problem stems from the fact that defendants employ the test scores to rank candidates for selection as firefighters. “Ranking is a valid, job-related selection technique only where the test scores vary directly with job perforrnance." Williams v. Vukovich, 720 F.2d 909, 924 (6th Cir. 1983), citing Guardian's Association of New York v. Civil Service Commission, 630 F.2d at 100. Many more persons apply for the position of firefighter than there are available. places. In these circumstances, relatively small differences - 22a - in scores can determine whether an individual is selected as a firefighter. If these relatively small differences in test scores reflect likely differences in job performance, then the test is valid, and there is no violation of Title VII. On the other hand, as the Court concludes is the case here, where these differences in scores have not been shown to reflect differences in likely job performance, selection of applicants in accord with such a test is impermissibie under Title VII. In 1975, a report prepared for the City by Battelle concerning hiring criteria for firefighters concluded that physical strength, endurance, agility and health were necessary to perform effectively as a firefighter. Jt. Ex. 24, at 13. The test administered by the City in 1984 is a reasonable test of physical strength in a number of respects that have been shown to reflect the actual physical demands of the job. - 23a - It appears also to be a reasonable test of health; at least, no one has raised an issue concerning this aspect of the examination process. However, it is a poor test of endurance, and there is no attempt to test agility. The inevitable result of this narrowed focus upon strength is that relatively small differences in strength will tend to determine whether an individual is selected as a firefighter. There is no guarantee, however, that in selecting stronger individuals, individuals with greater endurance and agility are also being selected. Where a test is used to rank individuals for purposes of hiring, it is important that test cover the range of abilities that are involved in performance of the job. The test administered in 1984 has failed on this count, and is, therefore, invalid when used to rank-order applicants for selection as firefighters. ~ 24a - Having concluded that the defendants have failed to show that the 1984 physical test is job-related, the Court then considers, in Part IV of this Opinion, the remedy to which the plaintiffs are entitled. In light of the absence of _ substantial evidence of intentional discrimination, the Court concludes that the remedy should be precisely tailored to eliminate the discrimination and restore any individuals to the position they would have occupied but for the discrimination. Accordingly, the Court will order the City to prepare a new physical examination for entry-level firefighters, and to demonstrate its job-relatedness. The City must make the _ initial decision whether to contin’: to use a scored physical exam for purposes of ranking, or whether to adopt a pass/fail approach. Whichever approach is adopted, the examination must be approved by the Court before it is administered. Further, before administration of - 25a - the new examination, the Court will require the City to provide notice, in a form approved by the Court, of this new examination and the results of this decision to all females who had applied to take the 1984 firefighter examinations. After the new examination has been administered and the results of the examination are before it, the Court will consider retroactive relief and back pay. To the extent that women perform better on the new examination, the Court will presume that they would have so performed on the 1984 examination but for defendants' discrimination. In this circumstance, the Court will fashion a remedy requiring defendants to set aside an appropriate number of places for female applicants in future firefighter classes, and determine the back-pay to be awarded to these applicants. On the other hand, if women as a group perform only as well as, or more poorly than their performance on the 1984 examination, then no retroactive relief would be appropriate. - 26a - particular numbers or ratio. It is no part of this remedy that the City be required to select women as firefighters the gender of an applicant should be irrelevant. Supreme Court has explained: Nothing in the Act [fi.e. Title VII) precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force -unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. Griggs v. Duke Power Co., 401 U.S. 424, 436 The issue before this Court is not whether firefighters. Rather, the issue - 27a - in any Indeed, under Title VII, As the (1971). women should be firefighters, or how many women should be is whether the test used by the defendants to select firefighters complies with Title VII. When the defendants administer a valid, job-related examination, that examination will determine how many women are to become firefighters. L. Plaintiffs have alleged in their amended | complaint that the defendants engaged in intentional discrimination by employing the physical and mechanical reasoning tests to select firefighters and have also addressed this matter in a perfunctory manner in their post-trial memorandum. Plaintiffs contend that intent to discriminate can be inferred from the following evidence. First, prior to 1975, job announcements for the position of firefighter — 28a - were restricted to males. Tr. 25. Second, only five of 832 firefighters are women. Tr. 203. Third, plaintiffs have presented evidence about bias against women on the part of the Director of the Training Academy. Tr. 198-202; 819-822. It appears that this led to his removal as head of the Training Academy. Tr. 821. Finally, plaintiffs argue that the defendants, at various times, were aware of less discriminatory testing methods than those they were employing, but refused to adopt them. However, there is substantial evidence in the record showing that the City made efforts to encourage women to apply as firefighters and to complete the selection process. Marie Hardin, Equal Employment Opportunity Administrator for the City, testified at length about her efforts to recruit females to participate in both the 1980 and 1984 selection processes. Tr. 810-819. These efforts included —- 29a - maintaining contact with female applicants after their appointment. Tr. 818. Further, although th> Court heard testimony from two_ incumbent female firefighters, Francisca Figueroa and Yolanda Stewart, no evidence of discriminatory treatment was offered by these witnesses. Tr. 156-184; 770-805. In addition, there appears to be no discrimination against women in the administration of the physical examination, as plaintiff Shearrow admitted in her testimony. Tr. 192. Plaintiff Brunet testified that she was permitted to practice the physical examination before taking it and received hints and assistance from firefighters during those practice sessions. Tr. 224-225. In light of the evidence before it, the Court cannot draw the inference of intentional discrimination suggested by the plaintiffs. Plaintiffs' evidence of intent to discriminate is at best impressionistic. Further, there is substantial evidence - 30a - suggesting the absence of discrimination. Accordingly, judgment must be rendered for the defendants on plaintiffs' claim of intentional discrimination under § 1983. Il. In this section of this Opinion, the Court considers whether plaintiffs have met their initial burden of showing that the examinations administered in 1980 and 1984 had an adverse impact upon the class of women they represent. Having considered the evidence before it and the arguments of the parties, the Court concludes that plaintiffs have failed to show adverse impact in the case of the 1980 examination, but have shown adverse impact in the case of the 1984 examination. Because they present separate questions, each examination will be discussed separately. Prior to. trial, defendants filed a motion - 3la- for partial summary judgment, arguing that plaintiffs had failed to carry their initial burden of showing that the 1980 firefighter's examination had an adverse impact upon women. This motion was not ruled upon prior to trial. At trial, defendants renewed their contention at the close of plaintiffs' evidence, seeking dismissal of plaintiffs' claims arising from the 1980 examination. The Court reserved ruling upon defendants' motion and now renders its Opinion. The facts pertinent to defendants’ motion are not in dispute; indeed, they have been stipulated by the parties. In 1980, the Columbus Municipal Civil Service Commission received applications from a total of 1,577 individuals, of whom 83 were females and 1,494 were males. Stip. #9. The Civil Service Commission required all applicants to meet certain minimal requirements, e.g., having completed tenth - 32a - grade in school. These requirements eliminated eight male applicants and no female applicants. Stip. #9. Accordingly, 83 female applicants and 1,486 male applicants were invited to the first stage of the 1980 testing process, the written test. Thirty-five female applicants and 387 male applicants failed to appear for the written test. Stip. #10. In 1980, the written test consisted of four subtests: a reading comprehension test, a mechanical aptitude test, and two psychological tests. The reading comprehension test was graded pass/fail, and applicants who failed were eliminated from further consideration. Three females and seventy-four males failed this test. Stip. #11. The remaining three tests were scored. All applicants who took the written test, including those who failed the reading comprehension subtest, were invited to the next stage, - 33a - the physical capabilities test. Of the 48 females invited, 20 failed to appear; 303 of the 1,099 invited males failed to appear. Twenty-eight females completed the physical capabilities test; of these, twenty-five were placed on the 1980 eligibility list. Seven hundred ninety-six males completed the test, and 722 were placed on the eligibility list. Stip. #13. A total of 109 applicants were appointed as firefighters from the 1980 eligibility lists: four were females and 10S were males. Stip. #29. These appointments were made from dual lists for black and white applicants according to a process of one-for- one hiring mandated by this Court's order in Dozier v. Chupka, 395 F. Supp. 836 (S.D. Oh. 1975). Stip. #28. All four female applicants were appointed from the black list. Defendants argue that, taken as a whole, the 1980 testing process did not have an adverse — 34a - irapact upon women. Of the twenty-eight females who completed the testing process, four-- or 14% --were ultimately hired. Of the 804 males who similarly completed the process, 105--or 13% ---were hired. Thus, defendant asserts, when the process is evaluated from the point of view of its ultimate result, there is no detrimental impact upon women.2 Defendants’ reliance upon hiring ratios among actual applicants appears reasonably grounded in the relevant case law. Berkman v. City of New York, 536 F. Supp. 177, 206 n. 19 (E.D.N.Y. 1982) aff'd, 70S F.2d 584 (2nd Cir. 1983). In response, plaintiffs argue that the Court should prone upon the components of the testing process, specifically the physical test, and evaluate the discriminatory impact, if any, of these components. Plaintiffs contend that this approach is compelled by the decision of the Supreme Court in Connecticut v. Teal, 457 U.S. 440 (1982). In addition, - 35a - plaintiffs offer statistics to show differences in the average scores of men and women on the 1980 firefighter examination. Plaintiffs argue that these differences in mean scores show adverse impact. With respect to the issue of whether the 1980 firefighter's test as a whole or its components is the appropriate unit of analysis, it is apparent to the Court that the central issue between the parties is the interpretation of Connecticut v. Teal, supra. In Teal, a state agency required that employees achieve a passing score on a written examination in order to be promoted to supervisor. The passing rate on the examination for black candidates was approximately 68% that for white candidates. It was undisputed that the examination, by itself, had an adverse impact upon blacks. Id., at 442, n. 4. However, the score upon the written examination was not. the sole. criterion for promotion. - 36a - Rather, it was used to generate a list of eligible candidates. Selections from the list were made by considering past work performance, recommendations of candidates' supervisors and seniority. The result of this selection process was that approximately 23% of the black candidates on the eligible list were promoted to supervisor, while only 13.5% of the white candidates were promoted. Id., at 444. Thus, the state argued---and this was the sole issue before the Supreme Court--that this “bottom line" result should be considered a complete defense to a race discrimination suit. Even though the state had argued that the bottom line result was a defense, the Court construed the issue as whether plaintiffs had made a prima facie case. Id., atn. 7, and p. 451. The Supreme Court rejected the “bottom line" approach urged by the state. The Court focused upon § 703 (a)(2) of Title VII, which provides: - 37a - It shall be an unlawful empioyment practice for an employer to _ limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(2). The Court reasoned that the statute speaks, not in terms of jobs and promotions, but would deprive any individual of employment opportunities." Id., at 448, emphasis in original. Thus, the Court concluded: When an employer uses a non-job-- related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier as a significant adverse effect on minorities or women, then the applicant has been deprived of an employment opportunity “because of .. race, color, reiigion, sex, or national origin.” --- Relying on § 703(a)(2), Griggs explicitly focused on employment — 38a - “practices, procedures, or tests," 401 U.S. at 430, that deny equal employment “opportunity,” id. at 431 ... The examination given to respondents in this case surely constituted such a practice and created such a barrier. Id., at 448-449. Teal differs from the instant case in the respect that the challenged component of the _ selection process, the written examination, was graded pass/fail. Here, however, the ciallenged portions of the testing process were given a numerical score, which was used, along with other similar scores, to rank candidates on eligibility lists. Thus, the written examination in Teal constituted a "barrier" in the sense that it precluded candidates from further consideration. The challenged components of the testing process here, even though lower scores on these components may lessen a candidate's overall chance of acceptance, do not. preclude further’ consider- — 39a - ation of that candidate. The question that the Court must decide is whether this difference amounts to a distinction. For the following reasons, the Court concludes that Teal is distinguishable from the instant case and, therefore, rejects plaintiffs' contention that the bottom line result does not negate adverse impact. In Teal, the actual holding of the Court is: [R]Jespondent's claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under § 703(a)(2), despite their employer's nondiscriminatory "bottom line," and that “bottom line" is no defense to this prima facie case under § 703(h). Id., at 452. Thus, the holding is limited by its terms to a pass/fail barrier. Concededly, there is language in the opinion that sweeps more broadly. It does not appear that this language is essential to the reasoning of the majority opinion, however. The critical premise — 40a - in the majority's reasoning is that the pass/fail subtest eliminated individuals from further consideration. In addressing the precise issue before the Court, Schlei and Grossman, in their widely cited text on employment discrimination, comment: It seems probably that Teal's rejection of the bottom line approach with respect to components that constitute a “pass/fail barrier" to further consideration in the selection process will not be applied to multicomponent selection processes where all candidates complete all components of the process before the selection is made. Although the majority did not specifically address this issue, the Second Circuit decision below, which was affirmed, specifically so held, and the four Justices in dissent so interpreted the majority opinion. “ B. Schlei & P. Grossman, Employment Discrimination Law (2nd ed. 1983), at 1377-1378. In Teal, the Second Circuit had written: Where all of the candidates participate in the. entire selection. process, — 4la - and the overall results reveal no significant disparity of impact, scrutinizing individual questions or individual sub-tests would, indeed, "conflict{] with the dictates of common sense." Teal v. State of Connecticut, 645 F.2d 133, 138 (2nd Cir. 1981), aff'd, 457 U.S. 440 (1982), quoting Kirkland v. New York State Dept. of Correctional Services, 374 F. Supp. at 1370. In Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975), cert. denied, 426 U.S. 934 (1976), the Sixth Circuit held that, where the overall examination process had no disparate racial impact, it was error to require a defendant to prove that a component of the overall process was job-related, even though blacks fared less well on that sub-test. As in the instant case, the score on challenged subtest was added to scores on other subtests and used to rank eligible candidates. 363 F. Supp. at 1134-1135, 1144-1145. In these circumstances, the Court concluded, the plaintift had — 42a - failed to demonstrate prima facie that the test was unlawfully discriminatory. Id. at 497. The Court observed: though general ability, or intelligence, tests have often been invalidated for their racially disproportionate impacts ... (cites omitted) ..., the disproportionate impacts have been in the hiring, rather than in the test results in and of themselves. Id., at 497-498. Teal does not squarely overrule this result, which must, therefore, be considered to be controlling law in this Circuit. The Uniform Guidelines on Employee Selection Procedures_("Guidelines"), 29 C.F.R. §s 1607.1 et seq., also support the view that individual components of a testing procedure need not be justified by an employer where the entire testing procedure does not have an adverse impact. Where the total selection process does not have any adverse impact, {t]he Federal enforcement agencies will not expect a user to evaluate the individual components for adverse — 43a - impact, or to validate such individual components, and will not take enforcement action based upon adverse impact of any component of that process, including the separate parts of a multipart selection procedure ... 29 C.F.R. § 1607.4(C). Although not binding upon this Court, the Uniform Guidelines are entitled to substantial deference as the interpretation of the Act by the enforcing agency. Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975). Furthermore, there is some question whether Teal should be applied in case, like the instant case, which is brought as a class action. In Coser v. Moore, 587 F. Supp. 572 (E.D. N.Y. 1983), aff'd, 739 F.2d 746 (2nd Cir. 1984), the district court construed Teal to be inapplicable in the case of a class action by women diane system-wide discrimination on the basis of sex. The court interpreted Teal as involving a claim by — 44a - individuals who failed a written examination with a proven adverse impact. The error of the district court in Teal was to foreclose proven and unrebutted individual claims of discrimination by looking to an employer's treatment of a group. Id. at 588, emphasis in original. The case before the Coser court involved an attempt by a class of women to prove sex discrimination in hiring and promotions on a university-wide basis. To prove their case, the plaintiff class presented evidence of under-utilization of women in specific departments and divisions of the university. In response, the university presented evidence of lack of discrimination in university—wide hiring. The plaintiffs argued that this evidence was no defense under Teal. The issue was thus analogous to the issue presented by the instant case. The court rejected this reliance on Teal, reasoning as follows: Unlike the individual plaintiffs in Teal, plaintiffs here are a class of — 45a - women seeking to prove by disparate impact analysis that Stony Brook has a pattern and practice of discrimination against women. If successful, that finding would then enable individual plaintiffs to rely on an inference of discrimination when they seek to prove their individual claims ... [TJhe issue is whether Stony Brook's neutral criteria have an adverse impact upon a group, and upholding Stony Brook's defense against plaintiffs' class action claims would not foreclose valid individual claims of discrimination, as the “bottom line" defense did in Teal. Id. at 588, emphasis in original. In the instant case as in Coser, plaintiffs are asserting a group claim. It follows that their proof of adverse impact necessarily depends upon the fortunes of the group. Thus, Teal's focus upon the individual appears misplaced in the context of the instant case. Alternatively, plaintiffs propose to demonstrate adverse impact of the entire examination and selection process by focusing upon the differences in average scores of men and women on _ the_ 1980 - 46a - firefighter exam. According to calculations ae by plaintiffs' expert Dr. Joseph Cranny, the average (or mean) total score of females on the 1980 examination was 80.13, while the average score for males was 85.21. Jt. Ex. 6. On the physical agility test alone, females averaged 36.00 while males averaged 49.98. Cranny also calculated a correlation of .36 between the score on the physical test and the overall test score. This showed, in his words, that there is a “slight tendency” for people who do well on the physical test to do well on the total test. Cranny Depo. of Dec. 21, 1984, at 27; Tr. 260. Finally, Cranny calculated that the statistical likelihood of these differences in scores arising by chance was extremely small. Plaintiffs argue that the difference in average scores means that women have less chance of being selected as firefighters than men. This - 47a - lessened opportunity arises because candidates are selected in order of their scores upon the tests. Furthermore, a significant part of these differences in scores arise from the physical tests challenged in this litigation. Accordingly, plaintiffs conclude that women have been denied an equal opportunity to be considered for the position of firefighter. Upon consideration, the Court declines to draw the inference of denial of equal opportunity from the differences in average scores. It is surely relevant to note that the actual result of the 1980 selection process was that women were hired at a slightly higher rate than men. It is difficult to ascribe any meaning to the notion of denial of equal opportunity when it is considered in light of this fact. Title VII does not require employers to equalize the probabilities of hiring of the average members of two groups. Rather, - 48a - it requires that actual individuals enjoy opportunities for employment free from discriminatory barriers. The reliance upon differences in mean scores is misplaced for an additional reason. There are far more applicants than there are available jobs in the Columbus Fire Department. Consequently, only the applicants earning the highest scores have any realistic chance of being hired. Thus, it is the impact of the examination upon the highest scorers, not the average impact that is significant. See United States v. City of Chicago, 549 F.2d 415, 429 (7th Cir.), cert. denied, 434 U.S. 875 (1977). Plaintiffs' statistical expert admitted at trial that it was possible that there be significant differences in average scores for men and women on a test and yet that selection ratios be essentially the same due to the fact that all selections would occur from only a small region of the — 49a - distributions. Tr. 376-377. Plaintiffs contend that the use of mean-difference analysis to show adverse impact was approved by Judge Duncan in Police Officers for Equal Rights v. City of Columbus, No. C-2-78-394 slip op. (S.D. Oh. 1985). One issue in that case was whether the sergeants promotional examinations administered by the. Columbus Police Department had an adverse impact upon blac. police officers. Dr. Joseph Cranny appeared as an expert witness for the plaintiffs. He sought to show adverse impact by three methods: examination of selection ratios under the 4/5's rule of the Guidelines, mean difference analysis, and analysis of pass/fail ratios. The Court concluded that plaintiffs had proven adverse impact under the 4/5S's rule. Id. at 88. The Court also noted that plaintiffs had shown a difference in mean scores. Id. at 89. Thus, the case cannot properly be relied upon to _ support — 50a - the contention that mean-difference analysis alone can be relied upon to prove adverse impact. The same is true of Walls v. Mississippi State Dept. of Public Welfare, 542 F. Supp. 281, 293 (N.D. Miss. 1982), aff'd in relevant part, 730 F.2d 36 (Sth Cir. 1984) and Thomas v. City of Evanston, 610 F. Supp. 442, 427 (N.D. Ill. 1985), both of which are also cited by plaintiffs. One case that does support the plaintiffs’ reliance on differences in average scores is Burney v. City of Pautucket, 559 F. Supp. 1089 (D. R.I. 1983). One issue in the case was whether physical agility requirements of a police academy had an adverse impact upon women. In order to graduate from the police academy, a recruit was required to score at least a "C" in each course, including a physical test. The score in the physical test was based equally upon performance upon certain physical tests and the - Sla- ‘ , ; ‘ . _— : : oe subjective Stimate by instructors of the recruits achievement and attitude. Id., at 1095-1096. Women earned lower scores on the test than did men. The defendants argued, however, that, notwithstanding their lower scores on the physical tests, all of the women who had entered the academy had graduated. Further, their scores on the physical test did not prevent women from graduating at or near the top of their classes. Id., at 1099. The Court rejected these argument, citing Teal for the proposition that such "bottom-line" arguments were no defense. This Court is unpersuaded by the reasoning of the Burney court. The plaintiff in Burney had been dismissed from the police academy for accumulating excessive demerits in the physical training program. Id., at 1100. Thus, as to her, adverse impact was established by the fact of her dismissal. The average - 52a - scores of women on the physical tests are irrelevant to this. More generally, the Burney court, perhaps because it was faced with a case involving an individual claim, appears to have confused the theories of disparate impact and disparate treatment. In any event, it appears that Burney is out of line with the great weight of authority. Plaintiffs also assert that hiring ratios are unreliable in the instant case due to existence of dual hiring lists for black and white firefighters. The four women hired in 1980 were all selected from the black list. The list of black candidates was substantially shorter than the white list, and thus the process of one-for-one hiring led to hiring from further down the black list. Had there been only one list in 1980, plaintiffs contend, no women would have been hired. Thus, but for the dual lists, no women would have been S3a - hired from the 1980 lists. Ks This argument is beside the point, even though it may well be factually correct. It is beside the point because the narrow issue presently before the Court is whether plaintiffs, as representatives of a class, have. proven adverse impact by the 1980 firefighter examination. This is plaintiffs' initial burden, and must be carried before defendants are required to justify the examination by showing that it is job-related. Whether plaintiffs would more easily have been able to carry their burden had things been different in 1980 is irrelevant. If the class of female applicants in 1980 was not adversely affected by the firefighter examination, then defendants are not liable for their acts connected with the 1980 exam and plaintiff are not entitled to a remedy with respect to that exam. The Court must decide a case such as instant one upon - S4a - the facts before it, not upon theoretical possibilities. See Schlei and Grossman, supra, at 102 n. 94. In his testimony at trial, plaintiffs' expert witness suggested that the equivalence of the hiring ratios in 1980 for male and female applicants was a “complete statistical artifact." Tr. 282. This artifact arose because selection ratios for both males and females derive from large numbers of applicants and small numbers of appointments. Tr. 281-282. Even if this is correct, it is of no consequence for this case. It is the plaintiffs' burden to prove adverse impact, not the burden of the defendants to prove absence of adverse impact. The Court also declines to assign any significance to the fact that 20 of 48 --or 42%--female applicants failed to appear from the physical exam, while only 303 of 1099 males-—-or - 55a - about 28%- -failed to appear. It is true that courts must be mindful of the possibility of deterrence of applicants before relying upon data regarding actual applicants. Dothard v. Rawlinson, 433 U.S. 321, 330 (1977). While these numbers might suggest that some female applicants are deterred from appearing for the physical examination, compare Tr. 286-287 and Jt. Ex. 8, this suggestion is not supported by the evidence produced at trial. At trial, Dr. Gerald Barrett testified that he had made an informal survey of fire testing dropouts in the City of Akron. He found that women and blacks tend to drop out of the testing process at a higher rate than white males. He attributed this to a variety of factors, including change of career orientation and increased knowledge about the job of firefighter. Tr. 663-664. This testimony was corrobrated by the testimony of Marie Hardin based upon her experiences in Columbus, Tr. 817, - $6a - as well as the statement of named plaintiff Hornung that she is no longer interested in becoming a firefighter. Tr. 188. For these reasons, the Court concludes that plaintiffs have failed to prove adverse impact from the 1980 firefighter's examination. Accordingly, defendants' motion to dismiss plaintiffs' Title VII claims regarding the 1980 examination must be GRANTED. Fed. R. Civ. P. 41(d). As in the case of the 1980 examination, the facts relevant to adverse impact in the 1984 examination have largely been stipulated. In 1984, a total of 2,886 males and 354 females appeared for the written test. Stip. #32. Four hundred and fifteen males and fifty-two females failed the written test. Consequently, 2,471 males and 302 females were invited to take the physical test. Stip. #33. Of those invited, 1,343 males and 83 females appeared and ~- 57a - completed the physical test. Stip. #35. Two females and 124 males have been selected from the 1984 eligibility lists; no further selections from the 1984 list are anticipated. Stip. #39. In 1984, the selection ratio for women was two out of 83, or 2%; for men, it was 124 out of 1,343, or 9%. The Guidelines have suggested as a rule of thumb that if the selection ratio of the protected group is less than 80% of the selection ratio of the non-protected group, there is likely to be adverse impact in the selection process. 29 C.F.R. § 1607.4(D). Here, the selection rate for female applicants is only about 22% that for male applicants. Further, Dr. Cranny testified at trial that he had performed a chi-square analysis upon these selection ratios, to determine the probability that these observed differences in selection ratios arose by chance. He testified _ that, — $8a - using a one-tailed test, the observed difference was significant at the .0S level, that is, that there is only one chance in twenty that it was the mere result of chance. Tr. 285. Dr. Cranny admitted that the chi-square test was not significant if a two-tailed test was employed. Id. Although defendants question this use of a one-tailed test, the. Court concludes that it is appropriate where, as here, the raw numbers indicate that women are selected at a lesser rate than men. In these circumstances, the question being asked is whether this apparent difference is real or a statistical artifact. This question is appropriately answered by a one-tailed test. There is no indication in this record that in reality women are being selected a higher rate than men in 1984. The Court concludes from this showing of violation of the 80% rule and the chi-square analysis that there was adverse impact upon - 59a - women in the 1984 firefighter examination taken as a whole. This conclusion is corroborated by plaintiffs’ evidence regarding differences in mean scores of men and women upon the exam. Tr. 266-271; Jt. Ex. 7. As explained above, differences in mean scores may properly be relied upon to corroborate a showing of adverse impact by the 80% rule or chi-square analysis. Police Officers for Equal Rights v. City of Columbus, supra, at 88-89. Thus, plaintiffs have met their initial burden with respect to the 1984 § firefighter examination. Il. Because plaintiffs have shown adverse impact upon women in the 1984 examination, it becomes the defendants' burden to show that the test has a “manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). In making this showing, "(tyhe touchstone is - 60a - business necessity." Id., at 431. The standard of proof of job-relatedness has been stated by the Supreme Court as follows: [D]iscriminatory tests are impermissible unless shown, by professionally acceptable methods, to be “predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.” 29 CFR § 1607.4(c). Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975S). In this section of this Opinion, the Courts makes its findings of fact and conclusions of law in support of its determination that defendants have failed to carry their burden. The 1984 Examination As has been noted, the 1984 firefighter examination consisted of a written test and a physical test. The written test had two components, - 6la - a reading comprehension test and a mecnanical reasoning test. Plaintiffs' expert, Dr. Cranny, performed a statistical analysis of the scores of men and women on the 1984 examination and its various components. This analysis is not challenged by the defendants. On the total examination, men, as a group, achieved an average score of 78.5, while the average score of women, as a group, was 65.0. Jt. Ex. 7, at S. Womens’ scores ranged from about 46 to about 82.45 while mens’ scores ranged from 0 to about 93. Jt. Ex. 7, at 5; Tr. 267-269. These total scores were the result of a series of statistical manipulations to standardize the raw scores on the various component tests. Stip. #36. No issue has been raised regarding the propriety of these statistical manipulations. The highest score earned by a woman on the i984 examination was 82.4. Three hundred and - 62a - fifty-five white males and twenty-one black males earned higher scores. A total of 126 individuals were ultimately hired as firefighters from the 1984 lists. Had there not been dual hiring lists mandated by Court order, consequently, no ‘emales would have been hired as firefighters. In fact, two females were hired, both from the black eligibility list. The differences in male and female total scores resulted primarily from lower female scores on two components of the total test: the physical test and the mechanical reasoning test. Plaintiffs' challenge is directed to these two components. There was no significant difference between the sexes on the reading comprehension test. Jt. Ex. 7, at 5; Tr. 270. On the mechanical reasoning test, men earned an average score of 19.6, while womens' scores averaged 15.1. Jt. Ex. 7, at S. The greatest disparity occurred on the physical test, where men averaged 76.1, - 63a - while women averaged 44.5. A statistical analysis of test scores by defendants' expert, Dr. Frank Landy, confirmed what is apparent from the raw numbers: the differences in male and female total scores are due primarily to the differences in scores upon the mechanical and physical tests. Jt. Ex. 11; Tr. 275-278. The 1984 firefighter physical capability test consisted of seven events. All seven events had pass levels, and it was necessary that a candidate pass in order to be considered for hiring. However, the pass levels were set very low, and it appears very few persons failed the physical exam. Five of the six events were scored. Jt. Ex. 52, 53. The events were administered to groups of applicants, at approximately ten minute intervals. 1) Beam Walk: Applicants were required to walk the length of a twenty foot beam that - 64a - was four inches wide while carrying a roll of hose. The event was pass/fail only, and was not timed. Three tries were allowed. In 1984, one male failed the beam walk. Stip. #36. Because virtually everyone passed this event, it is of the little consequence in this litigation. 2) Manual Dexterity: Applicants were required to screw three metal plugs into three threaded intakes on a piece of fire equipment, a multiversal, and then unscrew them. The event was timed, and a higher score was earned by completing the event more quickly. At a minimum, the event had to be completed in two minutes. In 1984, women scored about the same on this test event than did men. The average time of women was 26.8 seconds, while that of men was 25.5 seconds. Jt. Ex. 7, at 5; Tr. 272. This difference, however, was not statistically significant. Tr. 272. This event had been recommended for - 65a - inclusion on the test by the Five Training Academy staff, who had experienced problems with recruits who lacked manual dexterity. The suggestion of plaintiffs’ expert, Dr. John Magel, an exercise physiologist, that women might be disadvantaged on this event due to less experience with tools than men, Tr. 467-468, is contradicted by the essential equality of average scores. See also Tr. 735-736. This event is a direct simulation of a common firefighting task, as firefighter Yolanda Stewart testified. Tr. 779-780. Francisca Figueroa suggested that there could be a problem with failing to line up the threads properly if one tried to work too fast on the job. Tr. 164-165. This does not appear to be a serious problem, however. 3) Sandbag Drag or Carry: Applicants were required to carry or drag a sand dummy through a designated serpentine course defined by a line - 66a - on the floor running around a number of poles. The dummy was the approximate size of a small duffle bag, with straps to grip, and weighed 125 pounds. The event was timed. Further, if the applicant chose to drag the dummy, or dropped it on any part of the course, the time was doubled. Also, if a pole was knocked over, a two-second penalty was imposed. Men performed substantially better than women on this test event. The mean time for men was 19.5 seconds, while that of women was 38.2 seconds. Because the event was timed, the lower score is better. This difference is statistically significant. Jt. Ex. 7, at 5; Tr. 272-273. The event was designed to test an applicant's ability to drag or carry adults or children. Jt. Ex. 23. The event is an imperfect simulation. It appears from both expert and firefighter testimony that the weight - 67a - of the bag is reasonable. Tr. 718-723; 784. However, the shape of the bag makes it awkward to carry, depriving individuals of the opportunity to use lifting techniques and leverage. Tr. 468-471; 786-787. An articulated dummy could readily have been used. Tr. 324. There is little sense to be made of doubling the score if the bag was dragged; the testimony at trial was that victims are typically dragged from a building, due to the presence of smoke. Tr. 69; 169; 827-828. No rationale appears for placing a premium on extreme speed; the testimony at trial indicates that the speed necessary depends on the circumstances. Tr. 108-169; 827. This event measures primarily upper body strength and anaerobic capacity. 4) Pike Pole Pull: The applicant pulls on a handle attached to a rope which runs through pulleys and is attached to a 75 pound weight. A repetition consists of pulling down the handle until it — 68a - strikes a stand, and then returning the handle back to its original position; this, of course, involves lifting and lowering the 75 pound weight the distance of travel of the handle. The entire event lasts one minute. To pass, five repetitions must be completed in that time. The event is also scored: the more repetitions completed, the higher the score. The scores of males were substantially better than those of females. On the average, men accomplished 58.2 repetitions, while women performed 38.9 repetitions. Jt. Ex. 7, at 5. Unlike the other timed events, here the higher raw score is better. Tr. 273-274. The pike pole pull is a rough simulation of the actual use of pike poles, a rod with a hook on the end, to rip out walls and ceilings to search for fires. From the testimony at trial, the Court concludes that the seventy-five pound weight reasonably’ reflects — 69a — the physical demands of the job. Jt. Ex. 21; Tr. 708-717. However, the simulation of the job is questionable, in a number of respects. Actual use of a pike pole involves both push and pull phases; the event tests only the pull phase. No rationale appears for the requirement of hitting the stand with the pole; this appears to be merely a device for score-—keeping without any analogue in the actual use of the pike pole. It also appears that shorter persons--women tend to be shorter than men--were slightly disadvantaged by the event, because they could use their entire body to less advantage. Tr. 475; 715-716. This bias could have been eliminated by making the apparatus adjustable. And, the test appears to over-emphasize speed as compared with actual practice. The experts agree that the event measures upper body strength and the anaerobic capacity of the upper body. Jt. Ex. 20, at 3-4; Tr. 474. : - 70a - 5) Equipment Hoist: The applicant pulls a rope that runs over a roller to lift a sixty-five pound weight to a third-story window. The event is timed, and the more quickly the weight is raised, the better the score. After it is raised, the weight must be gently lowered to the ground. The lowering is not timed; however, if the weight is dropped, a penalty is assessed. In this timed event, the mean score for men was 10.7 seconds; the mean score for women was 26.9 seconds. Jt. Ex. 7, at S. The event was designed to simulate raising ladders and hose by means of a hose roller, an actual piece of fire equipment. Jt. Ex. 23. It does not appear, however, that hoisting is done very often in actual firefighting, mainly because the roller takes too long to set up. Tr. 160-161, 175-176, 778. There is no - Tila - indication why the weight of sixty-five pounds was chosen. Taller persons appear to enjoy a slight advantage in the event. Tr. 729. The experts agree that the test measures primarily muscular strength and anaerobic capacity of the arms. Jt. Ex. 20, at 4; Tr. 476-477. 6) Stairway Climb: The applicant was required to climb six flights of stairs and descend as rapidly as possible while wearing fire gear and _ carrying equipment, a roll of hose. The fire gear and equipment weighed about forty-seven pounds. The event was timed, and the score depended upon how quickly the event could be completed. The mean score for men was 65.7 seconds, while that of women was 102.2 seconds. Jt. Ex. 7, at 5. The standard deviation of the men's score was 12.6; this means that approximately two-thirds of the male applicants in 1984 completed the event in a time ranging between 53.1 seconds and 78.3 seconds. ~- 72a - The standard deviation of the womens' score was 22.6, so that the comparable range was 79.6 to 124.8 seconds. Firefighters must frequently climb stairs, though it appears that in tall buildings they use elevators when possible. Sometimes firefighters must climb six or more stories. Tr. 763; 788-789. When equipment must be carried up many stories, it is shuttled up two or three flights of stairs at a time in a relay; this operation, called staging, is more efficient. Tr. 887. Firefighters infrequently run up stairs, both for safety reasons and to marshall their energy to perform when they arrive at the fire. Tr,. 162-164; 789; 843-844. This test measures anaerobic power to sprint; performance does not depend primarily upon cardiovascular endurance or aerobic capacity. Tr. SOS-510, 512; 547; 766-767. Three events on the test--the sandbag drag — 73a - or carry, the pike pole pull, and the equipment hoist- -measure primarily upper body — strength. Further, the test tends to measure anaerobic capacity of the various muscles used. No event measures primarily aerobi> capacity. The ten minute resting period between events contributed to the overall anaerobic character of the test. This observation that the various test events tend to measure similar physical abilities is confirmed by the statistical analysis performed by defendants’ expert, Dr. Landy. This shows quite substantial statistical correlations among scores on the various events. Jt. Ex. 11. Two of these events--the beam walk and manual dexterity test-- had no significant impact upon the relative scores of men and women. Thus, the issues in this case turn upon the job-relatedness of four test events: the sandbag drag or carry, pike pole pull, equipment hoist, and stairway climb. These events - 74a - were timed, with the exception of the pike pole pull, where the number of repetitions determined the score. In all cases, speed was of the essence. On the three timed events, the average time of women was roughly twice that of men. In the pike pole pull, men completed approximately 50% more repetitions, on the average. These differences determined the differences in total score between men and women upon the physical portion of the examination. And, to a substantial extent, they determined the differences between men and women in total score upon the written and physical examinations. Accordingly, the fairness of 1984 physical test stands or falls upon the validity of these four test events. There is a very scanty record regarding the other component of the 1984 firefighter examination under challenge here, the mechanical reasoning test. In 1984, it consisted of thirty written — 75a - questions, and was scored by adding the number of questions answered correctly. Stip. #31. It constituted 35% of an applicant's total score. Id. There is no indication in the record why this 35% weighting was selected. Nor is there any indication of the content of the mechanical reasoning test, other than that conveyed by its name. As noted above, women scored less well than men on the mechanical test, averaging 15.1 as against 19.6, respectively. Jt. Ex. 7, at 5. The range of men's scores from 9 to 29 was somewhat higher than women’s score range, which was from 8 to 23. Scores upon the mechanical reasoning test were highly correlated with total test scores; the correlation coefficient was .85. Jt. Ex. 11. Test Development An event that looms large over the test - 76a - devzlopment process is this Court's judgment and decree in Dozier v. Chupka, 395 F. Supp. 836 (S.D. Oh. 1975). In Dozier, this Court concluded that the division of fire had employed standards and criteria for the selection of firefighters that had a racially discriminatory impact upon members of the plaintiff class, black male applicants for the position of firefighter. In 1973, the fire department had administered a written aptitude test to applicants. The Court considered the validation attempts undertaken by the defendants and concluded that the written examination had not been validated. 395 F. Supp. at 854. On April 16, 1975, the Court entered a remedial decree enjoining the defendants from further discrimination on the basis of race. Further, the Court ordered the defendants to develop criteria for selection of firefighters and to validate these criteria in compliance with the Equal Employment - 77a - Opportunity Guidelines on Testing as set forth in 26 C.F.R. §s 1607.1 et seq. Id. at 859-860. In 1973, prior to the entry of the Dozier decree, a two-step selection process had been used by the fire department. First, all applicants took a _ written examination; to be considered further, an applicant must pass that examination. The next step was a physical agility test, which also was initially graded pass/fail. Applicants who passed both tests were then ranked on an eligibility list, their relative position being determined by adding their two test scores and certain bonus points, if any, for military service. Then, a background investigation were conducted. 395 F. Supp. at 840-841. Candidates who were not removed from the eligibility list on the basis of the background investigation were appointed on the basis of total -scores. Id., 844; Jt. Ex. 16, at 1-4. - 78a - With some modifications, this same general approach to firefighter selection, i.e., ranking applicants according to scores on written and physical exams, was used in the 1980 and 1984 firefighter selection process. At the time the remedial decree was entered in Dozier, the City had hired Battelle to conduct an analysis of the job of firefighter. The City had informed the Court at the time of the Dozier decree of its intention of doing so, and the Court noted this fact. 395 F. Supp. at 859. Battelle submitted a document entitled "Final Report of Hiring Selection Criteria for the Entry-Level Firefighter" to the Civil Service Commission on June 20, 1975. Jt. Ex. 24. The report proposed hiring selection criteria pertaining to physical abilities, sensory abilities, communication _ skills, reasoning and judgment skills, and personal and interpersonal characteristics. Id., at 15-22. —- 79a - The report included an assessment of the physical demands of job. This involved weighing equipment, determining hose recoil pressures, and measuring the size of windows through which firefighters must sometimes crawl. The Battelle study did not propose tests for selecting firefighters; rather, it set forth criteria that tests should be developed to measure. The study—concluded that strength, endurance and agility were the most important physical characteristics of firefighters. Id., at 9. Testing of applicants for firefighter was conducted by the Civil Service Commission in 1975 and 1978. Stip. #1. These were the first tests that were open to female applicants. Prior to 1975 the job announcement for firefighters restricted applicants to males. Tr. 25. In both 1975 and 1978, the Civil Service Commission used a written reading test, a physical agility test, and a battery of tests. selected - 80a - by Dr. Gerald Barrett to determine mechanical comprehension, math ability and certain personality characteristics. Jt. Ex. 16, at 1-7. The physical agility examinations in 1975 and 1978 were graded pass/fail. Tr. 26; Jt. Ex. 48. Candidates were chosen from the dual hiring lists ordered in Dozier vs. Chupka in order of their written test scores. Stip. 4-5. In 1978 two females were appointed as firefighters, the first fernales to be so appointed. Stip. #7. At trial, the Court received into evidence certain documents pertaining to the 1975 firefighter examination. The 1975 test consisted of the following events: bent-knee_ sit-ups; ladder climb; driver capability (to determine if person is of a size to drive a fire truck); weight lift and twist; stairway climb; ladder raise; push-ups; beam walk with hose; and dummy dodge run. Jt. Ex. 48. It does not - $la - appear that the job analysis performed by Battelle played any role in developing these test events. The Battelle study had recommended that the physical test should dur'icate actual physical activities performed by firefighters. Jt. Ex. 24, at 23, which is not apparent in this test. Further, the test scoring procedures are dated June 1975 and appear to derive largely from recommendations made by the Bureau of Training of the Division of Fire in March of 1975. Jt. Ex. 47. The Battelle report was dated June 20, 1975S. There is no evidence in the present record about the content of the 1978 examination. In late 1978, the City began to develop a new physical test for firefighter. Tr. 28. The impetus for this development was the decision of Judge Duncan in Brandt v. City of Columbus, Case No. C-2-75-425 (S.D. Oh. Oct. 5S, 1978), a class action alleging sex discrimination in the Columbus Police — 82a - Department. In that decision Judge Duncan concluded that the physical agility test used by the police department for selection of recruits failed to meet the validity standards set forth in the Uniform Guidelines, and, therefore, was unlawful under Title VII. Because of the similarities between the testing procedures struck down in Brandt and those used by the fire department, the City reexamined the test procedures. Tr. 29. as In November 1978, Dr. S. David Kriska, who is in charge of personnel testing for the Civil Service Commission, drafted a memorandum reviewing the adequacy of the current firefighter physical examination in light of Brandt. Jt. Ex. 22. Kriska examined the various test events in light of the Battelle job analysis; this appears, from the record, to be the first time that this was done. He recommended that three test events--the sandbag lift and carry, push-up and _ sit-up events--be eliminated for — 83a - lack of job-relatedness. Also, Kriska proposed new events to test upper body strength and endurance, both of which were found relevant by the Battelle study. Plaintiffs' Ex. 3, at 2; Tr. 40. Kriska also noted that setting of passing scores was likely to be a problem, since there was likely to be an adverse impact upon women. Kriska proposed that a modified test should be given to a random sample of firefighters of various ages as well as a group of women likely to be representative of the probable applicant population to determine pass points. Id., at 4; Tr. 34-35. However, neither the 1980 nor 1984 physical tests has been administered to incumbent firefighters. Tr. 43-45. Indeed, it is unclear whether any of the physical tests from 1975S forward has ever been administered to incumbent firefighters. — 84a - In May 1979, Julia Ingram, an employee of the Civil Service Commission, and David Kriska issued a report proposing a physical test for firefighter. Jt. Ex. 49. In preparing the report, they had consulted with Dr. Edward Fox, an exercise physiologist and expert witness in Brandt. Id., at 2; Tr. 28. The proposed test included seven events: a beam walk with hose; ladder climb; ladder draw and carry; hose drag; blind hose follow (crawling in fire gear wearing an opaque face mask, following a hose through a _ predetermined course); stairway climb; and bicycling. Jt. Ex. 49, at 1-4. Each test event was to be graded pass/fail; failing any event would eliminate the candidate from further consideration. This 1979 proposal represents the culmination of efforts to rethink physical testing of firefighters in light of the Brandt decision. However, before these 1979 suggestions were - 85a — were accepted, a critical change in thinking and approach occurred. In 1980, a job analysis was performed by Ingram for the Civil Service Commission. Jt. Ex. 18. Based upon this job analysis, Ingram and Kriska concluded that the work of firefighting was largely physical, and that better firefighters were distinguished by the ability to excel while performing physical tasks. Jt. Ex. 50, at 23. Consequently, they recommended to the Civil Service Commission that the physical capability test be made part of the ranking of job candidates. This recommendation was adopted by the Commission in May 1980. There is no indication in the record before the Court that possible greater adverse impact upon women from a scored physical exam was considered. At approximately the same time, a new firefighter physical examination was proposed for administration in 1980. Development of the test and the Ingram job analysis occurred — 86a - simultaneously; the job analysis did not precede test development. Tr. 57-59. With one change--the elimination of a furniture push event--the 1984 examination was identical to that administered in 1980. Three of the six events on the 1984 physical test: the beam walk, stairway climb, and sandbag carry, had previously been used in 1975 through 1978 on a pass/fail basis. The stairway climb and sandbag carry were now to be timed and scored. One event, the manual dexterity test, had been suggested by the Fire Training Academy. Jt. Ex. 50, at 1. The remaining two events: the pike pole pull and the equipment hoist were new in 1980. They appear to have been developed as simulations of firefighting tasks; both are tests primarily of upper body strength. In summary, the 1984 firefighter physical examination evolved from previous physical examinations with the addition of several events — 87a - T ~ - In three respects, test to test upper body strength. developmer. departed from reasonable professional standards and practices. First, despite the emphasis upon endurance and agility in the Battelle study, events were not developed to test specifically for these abilities. Second, it is both striking and surprising that the various physical tests since 1975 were never administered to incumbant firefighters in any systematic way. This means that, to a large extent, test development proceeded in a vacuum. Third, a major change in approach from a pass/fail to a scored physical examination occurred in 1980 without any apparent consideration being given to possible greater adverse impact upon women. This change was purportedly justified by the Ingram job analysis, which will be examined in detail in the next section of this Opinion. In broader perspective, the City had readopted the approach used in 1973 prior to - 88a - | Dozier and Brandt after having experimented briefly with alternative approaches in 1975 and 1978. It appears that Dozier and Brandt had caused little change of approach. The record contains relatively little detail regarding the development of the mechanical reasoning test used in 1984. Dr. Gerald Barrett, an industrial psychologist, testified that he developed a written test for entry-level firefighters for the City of Akron in 1974 connection with employment discrimination litigation. The test has been used since then under court supervision. Tr. 652-653. The City of Columbus | adopted Barrett's test for use in 1980. Jt. Ex. 16, at | 1-7. Job Anal The Uniform Guidelines require that any validity study, i.e., any demonstration of the job-relatedness — 89a - of a selection procedure, should be based upon a jo analysis, that is, "a review of information about the jo for which the selection procedure is to be used." 2 C.F.R. §. 1607.14(A). The job analysis need not b conducted by any particular method, provided that i yields the information required for the _ specifi validation strategy used. Id. In the instant case defendants have, of necessity, relied primarily upo content validity studies. Regarding such studies, th Guidelines state: There should be a job analysis which includes an analysis of the important work behavior(s) required for successful performance and ___—i their relative importance ... Any job analysis should focus on the work behavior(s) and the tasks associated with them.... The work behavior(s) selected for measurement should be critical work behavior(s) and/or important work behavior(s) constituting most of the job. 29 C.F.R. §. 1607.14(C) (2). 90a - In addition to the Battelle study discussed supra. the City has conducted two analyses of the job of firefighter - the 1980 Ingram and Kriska job analysis ("Ingram report"), Jt. Ex. 18; and a report prepared specially for purposes of this litigation by Landy, Jacobs and Associates ("Landy study"), Jt. Ex. 17. There is no issue in this case regarding the adequacy of the job analyses. Plaintiffs' expert Dr. Cranny testified that he saw no major problems with these two analyses. Tr. 289, 314-315. Based upon this testimony and its own examination of the relevant exhibits, the Court concludes that the City has complied with the requirements of the Guidelines. Accordingly, these job analyses will be summarized in this section of the Opinion only to the extent necessary to evaluate the validity studies performed by the City, which is the subject of the next section of this Opinion. - 9la- ’ ashe we : ae — 2 The research underlying the Ingram report was conducted in five stages. In the first stage, a comprehensive list of job tasks was compiled through questionnaires given to incumbent firefighters. At stage two, this list of job tasks was shown to a sample of firefighters who were asked to score the tasks according to frequency of occurrence, consequence of error and probability of error. Based upon these scorings by firefighters, a ranking of job tasks by "task value" was derived. The highest "value" tasks, which were ranked "5S", were those that occurred frequently, where error was likely, and, if an error occurred, it would likely have serious consequences. The lowest "value" tasks were scored one. The Court has examined this aspect of the Ingram report in detail. It appears that firefighters rank as most important-and consequently scored "S"_.job tasks involving judgment and _= safety - 92a - procedures. Of the fourteen tasks ranked "4", only several: manipulating and working from ladders, and immediate response, appear to be predominantly physical in character. None of these physical tasks was directly simulated in the scored part of the physical test in 1984. Most of the tasks ranked "4" appear tc involve primarily judgment and safety.* In stage three of the study, Ingram presented firefighters with the task list she had formulated, with each task tentatively matched with knowledges, skills and abilities ("traits") needed to perform the task. The firefighters were asked to add or delete traits necessary to perform the job. Eleven traits were added. The product of this stage of the research was a matching of tasks and traits. In his testimony at trial, Dr. Cranny questioned this attempt to determine the abilities required by various tasks. Tr. 290-291. Having examined the Ingram report, the Court is - 93a - satisfied with the trustworthiness of these inferences. The abilities are described concretely, and in térms that appear comprehensible to ordinary persons. The Court is satisfied that incumbent firefighters can make reasonable judgments about the knowledges, skills and abilities they must use daily. In stage four of the research, firefighters were asked to rank these “traits” on three bases: the extent to which the trait must be possessed by a firefighter to perform on a “barely acceptable” level; the extent to which the trait may distinguish a superior from an average firefighter; and the extent to which applicants may be expected to possess the trait. In order to gain some idea of the beliefs of incumbent firefighters about what traits are indications of superior firefighting ability, the Court compiled a list of all traits that received ‘a score of 2.2 or higher on the ~ 94a - three point scale employed in the study. The cut-off of 2.2 was chosen arbitrarily to include a reasonable number of traits; 17 of 142 traits were scored 2.2 or above.» Most of these traits are knowledges of various sorts. Also, traits include abilities to function under adverse environmental conditions or to deal with stress. None of these traits appears to involve, in any direct fashion, physical abilities. The sole apparent exception is remaining oriented and functioning without sight. However, when attention is turned to those traits that firefighters regard as necessary to a barely adequate job performance, a_ different picture emerges. These results are reported on a scale of "0" to "1", with "1" representing "yes" and "0" representing "no." Nineteen traits received scores of "1.000."6 These abilities are predominantly, although not exclusively, physical in nature. Thus, the Ingram | report tends to support the conclusion - 9Sa - that, while physical abilities are highly important as minimal qualifications, they are not particularly good indicators of superior firefighting ability. In the fifth and final stage of the research, ratings were developed to indicate the relative importance of each trait. These ratings were derived by summing the values——as determined at stage two of this project--of the tasks that were associated with the particular trait. To gain an understanding of the judgments of firefighters, the Court examined all traits that were awarded task value scores pee than or equal to twenty. / Again, knowledges of various kinds, e.g., of proper lifting techniques, tend to predominate on this list. The physical ability to use fire department equipment, such as pike poles, also ranks prominently on this list. On the whole, however, this section of the study reinforces the general conclusion that knowledge —~ 96a - distinguishes the better firefighter. Ingram also sought to determine what traits should be considered for testing purposes. A trait was inappropriate for testing purposes if it could only be | learned on the job or if all applicants already possessed the trait. Of particular interest are those traits that were labelled "degree" traits. These were those traits that not only met the minimum criteria for inclusion in a test, but also tended to indicate superior workers. Ingram recommended that any test should measure for the amount of the degree trait that each applicant possessed. Jt. Ex. 18, at 7-8. Im all, there were thirty-three such degree traits. Physical traits were prominent, comprising eighteen of the total. However, with several exceptions, the task values associated with these physical degree traits tended to be relatively low.8 The exceptions are: physical ability to use firefighting equipment, such as pike poles - 97a - and axes; physical ability to work from ladders. ability to crawl on hands and knees; and The report draws a number of conclusions regarding testing for physical abilities. In many instances, a superior worker would possess more of a given physical ability than other workers. That is, the ability to lift more, work longer or climb faster was generally the mark of a better fighter. Id., at p. 10. The report also recommended applicants with respect to physical abilities. [Slince in many instances the possession of a higher degree of a physical ability is better, there is justification for awarding points for the performance of certain physical activities and including the physical capability scores in the ranking process. ranking Id. The report recommends that candidates be ranked in the 1980 examination process on the basis of their combined scores on the written and physical test. ~ 98a — It appears that these conclusions are, at least in part, unsupported by the report. It is an overstatement to assert that superior physical ability was generally a mark of a superior firefighter. Rather, as noted above, firefighters themselves rated knowledge and judgment much more highly in evaluating superiority of a firefighter. Further, the conclusion that rarking by physical test scores is appropriate neglects the value of the tasks associated with various physical abilities. The associated task values vary widely; in many cases, they tend to be quite low. Tr. 295-303; Plaintiff's Ex. 2. Thus, the Court concludes that the Ingram report only weakly supports one of its central conclusions: that superior physical ability distinguishes superior from average firefighters. Despite this failing, the Ingram report contains substantial, detailed ~- 99a - information about the job of firefighter in Columbus, and a wealth of information about firefighters' understanding of their job. The second job analysis, the Landy report, was designed specifically to be used as basis for a validation study, which will be discussed in the following section. It contains less detailed information and a higher degree of aggregation of data because of this linkage to a specific validation strategy. In this section of the Opinion, it will be discussed briefly as background to the Landy validation study, and to resolve certain factual issues that have arisen. Landy began his job analysis with a list of tasks that was emteoauted into twenty-eight functional categories. Examples are: firefighting - operates and advances hose lines and fire extinguishers; forcible entry - pries open or breaks down doors or windows using appropriate tools while wearing full firefighting gear; and extrication ~ extricates victims ~ 100a - from buildings or cars using appropriate tools. Jt. Ex. 17, App. B. This list of grouped tasks was then shown to incumbent ancaieen firefighters, who were asked to rate its verisimilitude on a one (for poor) to five (for very good) scale. The incumbents awarded an average score of 4.06. Id., p. 6. Landy concluded that the task list was a good representation of the job. Id., p. 6. No attempt was made, however, to correct the list in light of the responses of incumbent firefighters. Next, Landy asked incumbent firefighters to rate the importance of the various task groups. They were asked to distribute one hundred points among the various groups to reflect their importance in preserving life and property. Jt. Ex. 17, App. E. This yielded an average importance score for each of the twenty-eight functional *asks groups. The most highly - 10la - rated tasks, and their associated scores were: firefighting (8.1), rescue (7.3), search (5.9), emergency medical treatment (5.8), driving (5.0), engine operation (4.4), apparatus operation (4.3), and extrication (4.1). Firefighters were also asked to rate the various task groups according to how frequently they were performed. Id., App. G, H. The most important tasks, in terms of saving life and property, tend to occur infrequently, whereas less important tasks, e.zg., equipment maintenance, occur daily. Landy elected, in light of this inverse relation between importance and frequency, to ignore frequency for the remainder of the study. This judgment is questionable, for the two measures could have been combined. Ingram had done so in her job analysis. However, this does not appear to the Court to be a fundamental problem with the Landy job analysis. — 102a - The next step in the Landy job analysis is more controversial. Landy sought to determine the physical abilities that were necessary to perform the various job tasks. To do this, he used a taxonomy of hurnan abilities developed by Dr. Edwin Fleishman, an industrial psychologist. Fleishman sought to devise a list of abilities that underlay all human performance; the list was to be comprehensive and its elements were to be independent of one another. The list of abilities was created by reliance on a statistical technique, factor analysis. As this suggests, the Fleishman abilities are abstract concepts that are linked to a theory of human performance. For instance, Fleishman distinguished three kinds of strength. Static strength refers to the amount of force that a person can exert against an immovable or very heavy object. This is similar to the everyday concept of strength. Explosive strength, on the other | - 103a - hand, refers to the ability to use energy in one or a series of explosive muscular acts. An example would be the strength used in jumping over a barrier. Dynamic strength is the ability to use one's arms and trunk repeatedly to move one's body weight over a distance, e.g., climbing a rope. The Fleishman terms are not everyday ones and it was necessary to training firefighters in their meaning. Further, the distinctions drawn in the Fleishman classification are not common-sense ones, as is illustrated by the three kinds of strength. Landy asked incumbent firefighters to rate the extent to which the various Fleishman abilities were involved in performance of the tasks involved in the various task groups. For this purpose, the twenty-eight task grouping previously defined were aggregated into sixteen groups. Id., App. J. Prior to making the ratings, the firefighters were instructed in the — 104a - Fleishman classification, and discussions were held.? Then, the firefighters completed the task ratings by distributing one hundred points across the various Fleishman abilities to reflect their relative role in performance of a particular group of tasks. The scores assigned to each ability were then averaged across the various task areas. Finally, values were recalculated to reflect the relative importance of each of the task areas, as previously determined. At trial, plaintiffs' expert Dr. Cranny criticized the reliance upon the Fleishman abilities in the Landy study. He testified that the inferences about the abilities involved in a task were inherently unreliable, even when made by job incumbents. Tr. 321-323; Jt. Ex. 10. Concerns about whether firefighters understood the abstract categories of Fleishman's taxonomy were also expressed by the court in Berkman v. City of New York, 536 F. Supp. 177, 189-190 - 105a - (E.D. N.Y. 1982), aff'd, 70S F.2d 584 (2nd Cir. 1983), where the Fleishman taxonomy had also been used in the job analysis. In the instant case, although the Court feels some _ skepticism about reliance on terminology so distant from ordinary experience, the use of the experience, the use of the Fleishman abilities does not appear to cause major problems. Landy calculated intra-—class correlations for firefighters using the Fleishman categories. This statistic measures the amount of agreement of the various individuals about the extent to which the various task groups involve a particular ability. In the case of firefighters, the intra—class correlation was ~quite high, equalling .95. Jt. Ex. 13; Tr.982-983. In addition, Dr. Landy also presented at trial certain exhibits summarizing the judgments of firefighters about particular tasks and abilities. These exhibits showed a good deal of variability and discrimination, - 106a - Suggesting that the (firefighters were making reasonably accurate judgments. Tr. 984-987. The results of the abilities analysis of incumbent firefighters are presented in Appendix M of Jt. Ex. 17. One conclusion reached in the report is that physical abilities account for one half of the job of firefighter. That is, of ratings assigned to all thirty-five Fleishman physical and cognitive abilities, the ratings assigned to physical abilities amount to about 50 of a possible 100 points. The seven physical abilities rated highest by firefighters with their accompanying ratings are: stamina (8.17); static strength (8.11); explosive strength (4.86); dynamic strength (4.81); multi-limb coordination (2.74); manual dexterity (2.67); and gross—body coordination (2.63). Together, these abilities account for 63% of the total physical ability composition of the job of firefighter. This information | constitutes the basis for Landy's attempt to validate | the 1984 physical examination. - 107a - As noted in the introduction to this section of the Opinion, there was no real dispute regarding the job analyses that had been performed by the City. It is plain that adequate descriptions of the job of firefighter in Columbus have been formulated. Several general conclusions can be reached here. First, neither the Ingram report nor the Landy report justifies the conclusion that possession of more of a particular ability is, in all circumstances, better. For all these reports show, it may well be true that a firefighter requires enough of a particular ability to do the job well, and that any more of that ability is merely redundant. Further, neither report contains any data on how quickly firefighters perform particular tasks. There is much conflicting testimony in the record about the speed at which firefighters work; neither of these reports addresses this issue. - 108a - Test Validation Studies In this section, the Court summarizes the twc test validation studies undertaken by the City. The first was authored by Dr. Kriska and Constance Hines and was intended to fulfill one of the requirements of this Court's Order in Dozier v. Chupka, supra. Jt. Ex. 16 ("Kriska/ Hines report"). Although it is based upon data from the 1980 firefighter examination, it is relevant to the 1984 examination by virtue of the substantial overlap between the two examinations. The second study was that undertaken by Landy, Jacobs and Associates specially for purposes of this litigation. It involved solely an analysis of the 1984 physical test. Jt. Ex. 17 ("Landy report"). Validation refers to the process of gathering evidence to show the. job-relatedness of a test or selection device. Validity may be demonstrated by different kinds of studies: criterion related studies, content validity studies, or construct validity studies. ~ 109a - 29 C.F.R. §. 1607.5(A); Harless v. Duck, 619 F.2d 611, 616 n.S (6th Cir.), cert. denied, 449 U.S. 872 (1980). Only the first two approaches are relevant to this litigation. The Kriska/Hines report is primarily a criterion-related validity study. The Landy report, on the other hand, is an example of a content validity study. In the criterion-related validity study, an attempt is made to collect data to show that the test predicts important aspects of actual job performance. In such a study, thus, evidence is sought to show the association of test scores and measures of actual performance n the job, the criteria. There are two kinds of such studies. In a predictive validity study, an applicant's test scores and subsequent performance on the job as an employee are compared. In a concurrent validity study, on the other hand, the test scores of present employees are compared with their present job ~ 110a - performance. Both approaches were used in the Kriska/Hines study. Where it is possible, a criterion-related study is preferable, because it is the most direct approach to showing job-relatedness. However, due to problems with measuring job performance, a criterion approach is not always feasible. Tr. 241-243. In a content validation study, evidence is gathered to show that the content of the test, i.e., the questions or tasks comprising the test, are representative of the content of the job, i.e., the important or critical tasks comprising the job. An attempt is made to determine the degree to which test items are representative of the job. 29 C.F.R. §. 1607.14(c)(4); Jt. Ex. 44, at 11. Although a content validation approach is less’. direct than a criterion-related approach, it is nonetheless a permissible method for demonstrating validity. Firefighters institute for Racial Equality v. City of St. -llla- Louis, 549 F.2d 506, 511 (8th Cir. 1977). It should also be pointed out that criterion-related approaches and content approaches are not mutually exclusive in any respect; they are simply different strategies for collecting evidence regarding job-relatedness. Jt. Ex. 44, at 9-11; Tr. 243. As noted above, the Kriska/Hines report sought to demonstrate criterion-related validity by both predictive and concurrent studies. Kriska/Hines used two categories of variables as measures of on-the-job performance. Two measures were derived from ratings of firefighters by their supervisors based upon observation of the firefighters over a period of time. These two scales were measures of performance at the fire scene, and overall performance. Jt. Ex. 16, at 4-2 to 4-14. The other category of measures of job performance derived’ from testing programs that are used in the Fire Division to evaluate training success. One was the Training Academy Final Average, a - 112a - composite score consisting of instructor ratings and scores on written exams during initial firefighter training. The other training measures were written examinations used in post-Academy training; these are called the Firefighter I, Firefighter II and Journeyman examinations. Id., at 4-14 to 4-18. In the predictive study, Kriska/Hines sought to find significant and substantial correlations between scores upon the physical capability test and these criterion measures. The results were disappointing. The correlation of the physical test scores with supervisor's ratings of performance at the fire scene was .0O, that is, there was no association at all. The correlation of the physical test with supervisor's overall ratings was --.03, that is, there was a very slight negative association. Jt. Ex. 16, at 5-19. The only statistically significant correlation found with the training measures was with the Training Academy -ll3a- Final Average; this correlation was .32. Neither the Firefighter I or II examinations were significantly correlated with the physical test. Id. Kriska/Hines noted a number of statistical problems that might be causing their reported correlations to underestimate the actual correlation.19 Jt. Ex. 16, at 5-27. Dr. Landy corrected statistically for these problems, and recalculated the correlations between physical test scores and the various criterion measures. Landy's calculations have the effect of doubling the correlation between the physical test and the Training Academy Final Average; it is variously reported as being between .60 and .72. Defendant's Ex. E, Tables 1, 4, 6. Otherwise, nothing else changes, that is, all other attempted correlations with criterion measures remain nonsignificant. The ‘correlations with supervisor's ratings remain essentially zero, as before. Id., Tables | 2 -~llta- Kriska/Hines also report results of a predictive study of Barrett's mechanical test, which is also under challenge in this litigation. They found significant correlations of mechanical test scores with Training Academy Final Average (.54) and the Firefighter | examination (.38). Jt. Ex. 16, at 5-19. Correlations with the performance measures were not significant. As before, Landy's recalculations tended to increase these reported correlations somewhat. Kriska/Hines did not examine the physical test in their concurrent validity study. They expressed the view that it was possibie that training and performance of firefighting tasks made applicants and incumbent firefighters different from one another. Also, administering the test to incumbents would increase the cost of the study. Jt. Ex. 16, at 6-4. Thus, the City was no more willing to administer its physical test to incumbent firefighters to validate its test than it was in the process of developing the test. - 115a- The Kriska/Hines study did report the results of administering the Barrett mechanical test to incumbent firefighters. The scores of incumbents were then correlated with certain of the criteria measures previously discussed. There were __ significant correlations as follows: with Training Academy Final Average: .53; with Firefighter | examination: .31; with supervisor's ratings of performance at the fire scene; .30; and with supervisors’ ratings of overall performance: .32. Jt. Ex. 16, at 6-17. This section of the report concluded that the mechanical aptitude tests were significantly correlated with training success and on-company performance and, therefore, should be retained as part of the test for selecting firefighters. Id., at 6-29. The other validation study was the Landy study, which pertained solely to the physical examination. This study was an attempt to demonstrate job-relatedness through a content validation strategy. - ll6a- In the previous section, Landy's job analysis was discussed. As will be recalled, the culmination of that analysis was a rating, by incumbent firefighters, of the relative importance of the Fleishman physical abilities in the job as a whole. This rating had been derived by averaging across the various task groups formulated in the job analysis, and weighting for importance of the tasks. Landy's validation strategy was direct, yet elegant. He asked a group of industrial and organizational psychologists to make an evaluation of the 1984 firefighter test similar to that made by the firefighters of the job. Like the firefighters,the psychologists were given the Fleishman abilities with explanatory and_ illustrative material, and were presented with information, including a videotape, about the 1984 firefighter test. For each event, they -llva- were asked to distribute one hundred points across the various abilities to reflect the extent to which the ability was tested by the particular event. These results were then averaged across the various events to yield an overall measure of the extent to which a given ability was important in the 1984 examination. Values were recalculated to omit the beamwalk event; this is reasonable because only one person failed that event. The seven highest rated abilities accounted for approximately 80% of the total points awarded by the psychologists to all eighteen abilities. These highest rate abilities were: -1}8a- Ability score” lop 7 in *** Score in ** Firefighters Firefighters Rating Rating Speed of Limb 17.9 no 2.4 Movement Dynamic 14.5 no 3.8 Flexibility Static 13.4 yes 16.2 Strength Explosive 10.0 yes 9.8 Strength Stamina 9.8 yes 16.4 Manual wat yes 5.4 Dexterity Wrist-Finger 6.1 no 1.8 Speed *Source: Jt. Ex. 17, App. R. **Source: Jt. Ex. 17, App. M. physical abilities were assigned only 49.9 points out of a possible total of 100 points, the scores reported in Appendix M are doubled for purposes of comparison with the results reported in Appendix R. The remaining points in Appendix M were assigned to cognitive abilities. ***The seven highest rated physical abilities in Appendix M with their associated (corrected) scores Strength were: Stamina (16.4), Static =m 1% Because (16.2), Explosive Strength (9.8), Dynamic Strength (9.6), Multi-Limb Coordination (5.4), Manual Dexterity (5.4), and Gross-Body Coordination (5.2). These seven abilities account for 63% of the total physical points awarded by firefighters. From the Landy study, it is possible to offer a qualitative appraisal of the job-relatedness of the 1984 firefighter test from the point of view of the underlying physical abilities purportedly measured. First, the test appears to overemphasize certain abilities. This is quite extreme in the case of speed of limb movement and dynamic flexibility. (Dynamic flexibility is defined as the ability to make repeated arm or leg flexing movements with some speed, e.g., pulling in a rope, hand over hand. Jt. Ex. 17, App. I.) There is also substantial overweighting of wrist-finger speed in the test. This overweighting appears to result from the timed nature of the test. The emphasis on extreme speed that, of necessity, character - 120a - izes such a timed test does not appear to be reflected in firefighters' appraisals of their jobs. The test also underweights certain abilities that were thought to be important by firefighters. This is most striking in the case of stamina, the physical ability most highly rated by firefighters. Dynamic strength also appears to be under weighted, having been rated 5.8 by the psychologists, but a higher (corrected) 9.6 by the firefighters. Finally, the 1984 test appears to have achieved a reasonable fit with the static strength, explosive strength and manual dexterity required by the job; the relative ratings appear sufficiently comparable to justify this conclusion. Dr. Landy testified that there was a "good match" between the test and the job. Tr. 961. He based this conclusion upon the observation that - 12la- the abilities most highly rated by the firefighters: endurance, static strength, explosive strength, and dynamic strength, were also important in the test. Tr. 1010; Jt. Ex. 17, at 21. Dr. Cranny disagreed with this conclusion. He calculated a correlation coefficient to measure the extent to which the relative abilities for the job and that the test were rated in the same order by the respective judges. The correlation was .45, a “rather low degree of correspondence." Tr. 338; Plaintiffs' Ex. 1. Although this calculation was questioned by Dr. Landy, Tr. 1009, it appears reasonable. Tr. 336-339. It appears that the experts are choosing to characterize the fit between test and job in different ways, rather than contradicting one another. The test does reflect certain abilities that are important to the job; this is especially true in the case of the various kinds of strength. On _ the -120a- other hand, there are other abilities that are not reflected in the test proportionally to their apparent importance in the job, and yet other abilities that are overemphasized in the test. The controlling question is whether the degree of fit achieved by the test is sufficient; this question will be addressed in the following section. Legal Discussion The Court having concluded that plaintiffs have demonstrated adverse impact from he 1984 firefighter examination, it becomes the defendants' burden to show that the test "bears a manifest relationship to successful and efficient job performance." Harless v. Duck, 619 F.2d 611, 616 (6th Cir.), cert. denied, 449 U.S. 872 (1980); Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). The test of manifest relationship looks to whether the discriminatory employment -1Ra- practice is "necessary to safe and efficient job performance." Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1252 (6th Cir. 1981). "Necessary" here does not mean _ indispensable, but rather “substantially promote[{s] the proficient operation of the business." ld. Nonetheless, manifest relationship is intended to set a “high standard." E.E.O.C. v. Ball Corp., 661 F.2d 531, 541 (6th Cir. 1981). If, but only if, the employer meets the burden of establishing manifest relationship, the burden shifts back to the plaintiff to show that there is an alternative selection device with less disparate impact that would also serve the employer's legitimate interests. Chrisner _v. Complete Auto Transit, Inc., supra, at 1263. Because the Court concludes that the defendants have not met their burden, the issue of alternative selection devices is not reached here. - {Ma . In the instant case, the Court concludes that the defendants must demonstrate manifest relationship by showing that the 1984 test was validated in conformity with the standards set forth in the Uniform Guidelines, 29 C.F.R. §s. 1607.1 et seq. Although the Guidelines are not substantive regulations promulgated as law, they are entitled to "great deference." Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975). The Guidelines have been followed by those courts that have decded cases involving discrimination in testing in fire departments. Berkman v. City of New York, 536 F. Supp. 177 (E.D. N.Y. 1982), aff'd, 705 F.2d 584 (24 Cir. 1983); Fire Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 510-511 (8th Cir.), cert. denied, 434 U.S. 819 (1977); Vulcan Society v. Civil Service Commission, 360 F. Supp. 1265, 1273 n. 23 (S.D. N.Y.), mod., 490 F.2d 387 (2d Cir. 1973). An additional reason for applying the Guidelines is - 125a - that in Dozier v. Chupka, 395 F. Supp. 836 (S.D. Oh. 1975), this Court ordered the City to validate its hiring criteria for firefighters in compliance with the Guidelines. Id., at 859-860. In so concluding, the Court is mindful that the Guidelines are meant to be consistent with professional standards for testing, and that these are not unchanging. 29 C.F.R. §. 1607.5(C), (A). Thus, the Court considers it appropriate to consider also the standards set forth in Standards for Educational and Psychological Testing, published by the American Psychological Association in 1985 ("Division 14 Standards"). Jt. Ex. 44. Relying upon Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th Cir. 1972), the City argues that it should be held to a lower quantum of proof of job-relatedness because the job of firefighter implicates public safety. In Spurlock, the Court held: -12@- when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related. Id., at 219. The Sixth Circuit adopted this doctrine in Chrisner_v. Complete Auto Transit, Inc., supra. Subsequently, the Court of Appeals explained that the doctrine was restricted to the “narrow catergory of jobs which greatly implicate human safety, e.g., airline piloting and over-the-road trucking.” E.E.O.C. v. Ball Corp., supra, at 541 n. 20. For the following reasons, the Court concludes that the Spurlock doctrine does not alter the defendants’ burden of showing compliance with the Guidelines. First, the Spurlock Court relied upon an E.E.0.C. regulation, then existing 29 C.F.R. §. 1607.S(c)(2)(iii) as the basis ffor its holding. - 127a - However, when the Guidelines were revised in 1978, this provision was not included. The natural assumption is that this provision has been incorporated into or superseded by the standards presently set forth in the Guidelines. In addition, the Spurlock doctrine has been applied mainly in cases involving education or experience requirements or other non-scored objective criteria. See B. Schlei and P. Grossman, Employment Discrimination Law (2d ed. 1976), at 167-173. It has been frequently been applied in cases involving scored tests, where distinct standards have been developed by the courts. Turning now to the merits of defendants’ case, the Court first concludes that defendants have met their burden with respect to the mechanical reasoning test. There is no evidence before the Court about the content of this test- as administered in 1984. The plaintiffs have done little more than raise the - 128a- issue by showing adverse impact; they virtually abandoned the claim at trial and in their brief. Nevertheless, the defendants have produced evidence of validation of this test, which, under the circumstances, the Court can only conclude is sufficient to meet their burden. Defendants' evidence is of two sorts. First, in the Kriska/Hines concurrent validation study, significant correlations with both training performance and supervisor's ratings of on-the-job performance were shown. Jt. Ex. 16, at 6-17. Plaintiffs’ contention that the correlations in this study are too low to validate the test is unpersuasive. See, e.g., B. Schlei & P. Grossman, supra, at 129; also 1983-1984 Supp., at 18. The Guidelines set no minimum standards for correlation coefficients in criterion-related studies. 29 C.F.R. §. 1607.14(B)(6). The Court considers it appropriate to rely upon both training performance and a tae a on-the-job performance as_ validating criteria. Mechanical reasoning ability, it would appear, is necessary both to successful completion of training and performance on the job. In addition, defendants presented testimony from Dr. Gerald Barett, the developer of the mechanical reasoning test. He testified that the test had been developed to use in selecting firefighters in Akron, and that a test validation study had been performed on the tests as used there. Tr. 652-657; Jt. Ex. 19. He further testified that, based on his review of data about the job of firefighter in Columbus, his knowledge of the job of firefighter in Akron, and the general literature on firefighting, the job of firefighter was similar in both cities. Tr. 658, 660. This testimony is uncontradicted. In fact, plaintiffs' expert, ~ 130a - Dr. Magel, testified that evidence regarding firefighting in one city was applicable to another city, in his words, “firefighting is firefighting." Tr. 461. The Court concludes that requirements of the Guidelines for reliance upon validity studies conducted by other users have been met. 29 C.F.R. §. 1607.7. The Court further concludes that defendants have failed to show that the 1984 firefighter physical examination is valid by means of the Kriska/Hines predictive criterion-related validity study. That study found a significant and substantial correlation between physical test scores and the Training Academy Final Average, but no other meaningfully correlation with the other training measures or, more important, with on-the-job measures. In Dozier v. Chupka, supra, this Court rejected a contention that a correlation of test scores and training academy scores was sufficient to - 13la- validate a test. Id., at 853. The Court sees no reason to abandon this proposition here. It is true that the Supreme Court has held that a positive correlation of a test with training course performance may be enough to validate a test apart from a possible relationship to on-the-job performance. Washington v. Davis, 426 U.S. 229, 250 (1976). However, courts of appeals have interpreted this holding to apply only in the case of minimal standards necessary to successful completion of a training program. Guardian's Association v. Civil Service Commission, 633 F.2d 232 (2d Cir. 1980), aff'd, 463 U.S. 582 (1983); Ensley Branch of NAACP v. Seibels, 616 F.2d 812, 819-822 (Sth Cir. 1980); Craig v. County of Los Angeles, 626 F.2d 659, 662-663 (9th Cir. 1980). Physical ability, of course, is not something that is merely needed to train as a firefighter; it is necessary on the job. Thus, the absence of any non-zero correlations with on-the-job measures [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1399%3A2. Public record. Not legal advice.