Legault v. aRusso CV-93-365-B 02/10/94 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michelle Legault
v. Civ. No. 93-365-B
Ralph aRusso, et al.
O R D E R
Michelle Legault brings this employment discrimination
action pursuant to 42 U.S.C. §§ 2000e et seq. ("Title VII") and
42 U.S.C. § 1983. She alleges that the Johnston, Rhode Island
Fire Department (the "Department) used invalid, gender-biased
physical ability tests to select new recruits; that these tests
excluded her from the selection process; and that, as a result,
she was wrongfully denied employment as an entry-level
firefighter.1 Defendants are the Town of Johnston; Ralph aRusso,
individually and in his official capacity as town Mayor; and Alan
Zambarano, individually and in his official capacity as Chief of
the Johnston Fire Department. Legault has moved for a
preliminary injunction reguiring defendants to hire her
1Plaintiff also asserts pendant state constitutional, statutory and breach of contract claims.
1 immediately, and presently objects to Magistrate Judge Barry's
recommendation that I partially deny her the relief she reguests.
As I find that Legault is entitled to immediate instatement, I
decline to follow Magistrate Judge Barry's recommendation and
grant the reguested relief in full.
I. FACTS
This case arises from the efforts of Mayor aRusso (the
"Mayor") and Chief Zambarano (the "Chief") to create a pool of
gualified, trained recruits that the Department can draw upon to
fill permanent entry-level firefighting positions. Prior to
1992, vacant or newly-created positions were filled by hiring
individuals who had previously served with the Department as
volunteer or part-time firefighters.2 By 1992, however, this
reservoir of experienced firefighters was exhausted. Thus, when
the Mayor agreed to appropriate the funds for eight new entry-
level firefighting positions, the town had no recruits ready to
fill these positions. The Mayor and the Chief therefore decided
to solicit applications and then "do like the surrounding
2In prior years, Johnston had a "call" system in which men and women would be paid an hourly rate to serve as part-time firefighters, working and training alongside the permanent firefighters. To become call firefighters, applicants merely had to contact their area call captain.
2 communities and larger cities do" -- devise their own procedures
to select and train the best-qualified applicants.
A. The Testing Procedures
After conducting some informal research,3 the Chief and his
deputy settled on a three stage selection process. First, an
applicant had to meet certain threshold requirements. He or she
had to fill out an application form, hold a valid driver's
license, and be EMT-certifled by the state of Rhode Island as of
the application deadline. Each applicant also had to pass a
criminal record check. If these requirements were met, the
applicant was entitled to go on to stage two.
The second stage of the selection process was a four-part,
pass/fail physical agility test. Applicants were required to (1)
climb a 100' ladder and then come back down; (2) remove, set down
3The Chief stated that he read the 1987 National Fire Protection Association recruit-training guidelines and consulted the International Firefighter's Federation Manual; that he and his deputy polled the chiefs of four neighboring communities to determine the types of physical tests they administered; that he visited the Providence Fire Department's training division to see how they ran their obstacle course test; and that he telephoned the test's designer. University of Rhode Island professor Leo O'Donnell, to get a copy of the test and find out how it should be administered.
3 and then replace a roof ladder from the side of a fire engine;
(3) run 1 1/2 miles in 12 minutes;4 and (4) throw the nozzle of a
1" booster hose over their shoulders and pull the hose 200' in 35
seconds.5 To make it to the third stage of the selection
process, applicants had to successfully complete the aerial
ladder climb and two of the agility test's three other
components.
The third stage was labelled the "obstacle course." In
reality, the "obstacle course" consisted of three physical tests
and a written examination. The three physical tests -- the
balance beam, a second hose pull and the actual obstacle course6
4At the preliminary injunction hearing, defendants' attorney stated that the Department had made a "good faith error" in reguiring candidates to complete the run in 12 minutes. Based on the 1987 NFPA standards, the cutoff time "should have been ... 13 minutes." Counsel admitted this mistake was a "detriment" to Legault and other candidates.
51he hose was coiled on a reel attached to the back of a fire engine. This set-up was used solely to fight brush fires.
6For the balance beam, the department laid boards on the ground, placed coffee cans on each end, and then had contestants shuttle back and forth along the board, transfering a wooden block from coffee can to coffee can. In the hose pull event, contestants had to grip a rope connected via pulley to a coil of 2 1/2" hose and pull the rope hand over hand, lifting the hose up and down four times without letting go. Finally, in the obstacle course contestants had to climb through a window, crawl through a corrugated tube, grab a 115 lb. dummy, haul it around a cone.
4 -- were time-graded by Department firefighters. The written exam
was a standardized test administered by the Johnston Personnel
Department and graded by the out-of-state company from whom it
was purchased. The results of the three tests and the written
examination were to be averaged and the contestants ranked
according to their score.7 The top twelve would then be chosen
to go on to the Johnston Fire Department Training Program.
B. The 1992 Recruitment Drive
In late summer 1992, the Department advertised for
individuals to fill the eight newly-created positions.
Approximately one hundred and fifty individuals applied, twelve
of whom were women. The first stage of the application process -
- the threshold EMT and BCI reguirements -- narrowed the field to
fifty applicants. Forty-six of these individuals, including
eleven women, then took the physical agility test. The thirty
applicants that passed the test were all male. These men then
went on to participate in the "obstacle course" stage of the
climb across a sawhorse-supported ladder and cross the finish line. Once they crossed the line, contestants had to double back and repeat the course once more.
71he three tests were worth 60%, and the examination 40%.
5 selection process. Their scores on the three events and the
written test were averaged and a final ranking calculated. The
Chief then selected the top twelve contestants for the training
program, which was set to begin on February 1, 1993.
Plaintiff was one of the female applicants who satisfied the
Department's EMT and BCI reguirements. She was thus allowed to
participate in the agility testing. She took the test,
completing the aerial ladder climb and the ladder
removal/replacement drill. She also completed the run within
thirteen minutes, and thus would have would have passed this
reguirement if it had been administered pursuant to the 1987 NFPA
standards. However, like every other female participant, she did
not meet the twelve minute standard that the Department
mistakenly imposed. Like the other female candidates, she also
failed the hose pull. As a result, plaintiff was eliminated from
the process. She did not compete in the balance beam, second
hose pull or obstacle course events. She also did not sit for
the standardized examination.
C. The Exceptions to the Testing Procedure
As outlined above, to be selected for the Department's
training program, a candidate must have participated in all
6 phases of the selection process and have been one of the top
twelve finishers. This "rule", however, soon was riddled with
exceptions. After the testing had been completed, plaintiff
learned that one woman, Susan Thibideau, had been selected for
the training program without having participated in any of the
tests.8 Plaintiff then contacted her attorney, who faxed a
letter to the Mayor calling his attention to Thibideau's
selection for the program and complaining that plaintiff and
other women had been discriminated against by the Department's
testing procedures. The Mayor then promptly removed Thibideau
from the list and replaced her with plaintiff and Melissa Murray,
another woman who had been eliminated by the physical agility
test. In doing so, the Mayor agreed in writing that
"participation in the training program and class standing after
the completion of the training program will determine placement
on the hiring eligibility list for such vacancies as may open."
Kenneth Moore, a "civilian" (i.e., non-firefighting) Department
employee, was also added to the list without having participated
in the testing procedures or having completed his EMT
81hibideau had been placed on the program list by her EMT instructor, a captain in the Johnston Fire Department.
7 certification.
D. The Training Program
The 120-hour training program ran from February 1 to April
10, 1993. Two nights a week, the recruits attended classes in
subjects ranging from personal safety to forcible entry. The
trainees also spent several Saturday mornings doing "outside"
work -- setting up ladders, laying hoses and familiarizing
themselves with other firefighting eguipment.9 The recruits were
guizzed at the conclusion of each subject area and were also
given a final exam.
Plaintiff was one of the top students in the program. She
attended every class. She passed every guiz and passed the final
exam. She also participated in all of the outdoor events and,
according to the instructor, "complete[d] all that was asked of
90n one day, groups of trainees laid different types of hose lines for simulated fire attacks. In doing so, they "got a feel for handling the charged hose lines and using the different size nozzles different ways". On another day, the recruits raised and climbed different types of ground ladders. Finally, the recruits also completed a "ladder evolution," a drill in which they laid field lines from a hydrant to a ladder truck, raised an aerial ladder that had a water pipe attached to it, coupled the field lines to the water pipe, and started the water flowing. According to the instructor, the ladder pipe gave off the Department's "largest stream."
8 her". At program's end, she stood second in her class. The
other woman, Melissa Murray, placed first.
E. Hiring
During the course of the program, the Department hired
Moore, the male who had bypassed the supposedly mandatory testing
procedures. After the program was completed, the Department
again passed over plaintiff and Murray and hired three males who
ranked lower in the class standings. When plaintiff complained,
she was informed that the Chief had no knowledge of plaintiff's
agreement with the Mayor. Instead, the Chief was hiring based on
the trainees' standings after the "obstacle course" phase of the
selection process.10 Because plaintiff and Murray had not
completed this phase, they were actually ranked fourteenth and
fifteenth instead of first and second.
Plaintiff then asked the Mayor to honor their previous
10At the orientation meeting held before the first training class, the president of the firefighters' union told the trainees that "the training class grades had no bearing on their selection of getting on the fire department". Instead, the hiring order was dictated by the trainees' standing after the "obstacle course" phase. The union president said that these rankings would be used because he and the Chief felt that the training class should be a non-competitive, learning experience. Plaintiff did not attend the orientation meeting because she had not yet been allowed into the program. agreement regarding the order of the hiring eligibility list.
The Mayor, however, refused to do so. He stated that when he
took it upon himself to include the "two girls" in the training
program, and to hire them according to their class standing, he
did so "with an understanding certainly that they had to pass all
the other tests". According to the Mayor, " [w]e have men on the
fire department that weigh 250 pounds;" although some women were
undoubtedly gualified to be firefighters, the tests were
necessary to ensure that the two women would not be a danger to
themselves or the public. Moreover, when plaintiff called his
attention to the fact that Moore was hired without having
completed the tests, the Mayor responded that Moore was a
"strong" man who had trained with the permanent men while he was
a civilian Department employee. As plaintiff and Murray had not
passed the tests, the Mayor refused to reguire the Department to
hire them.
F. Expert Testimony on the Validity of the Testing Procedures
On May 25, 1993, plaintiff moved for a preliminary
injunction barring defendants from appointing any person to the
Johnston Fire Department except in accordance with the class
standing in the recruit training program and reguiring defendants
10 to hire her to fill one of the open positions. A hearing was
held before United States Magistrate Judge Barry on August 16,
1993.
At the hearing, plaintiff's expert, Norman Bedard,11 opined
that the testing procedure was "an invalid examination as a whole
because many of its parts include things that are not appropriate
for protected classes under the EEOC guidelines." Bedard began
by stating that the Department's firefighter job
description/specification had not been reviewed for "a great many
years", and that the conseguence of developing a test around
outdated job specifications was "the probability . . . that the
test itself begins to fall because you're not using data that is
validated" or otherwise professionally acceptable.
Bedard then proceeded to identify the test's specific
failings. Regarding stage one, he noted that there appeared to
“ Bedard was a personnel management and labor relations consultant who had taught at several Rhode Island colleges and universities. He had also served as a consultant to the United States Civil Service Commission, helping the CSC develop technigues for creating job-related tests and test-validating civil service examinations for a wide range of public occupations. Under federal a grant, he also formed the New England Public Personnel Council to assist all public jurisdictions to develop similar technigues. Among other positions, Bedard had also served as a special master in several Rhode Island District Court cases involving job-related testing.
11 be no criteria for determining who passed or failed the criminal
record check. Regarding stage two, he determined (1) that the
1992 National Fire Protection Association standards contain no
hose pull or run reguirements; (2) that these two standards
reguired strength not necessarily present in the average woman;
and (3) that no women passed the physical agility test.
Respecting stage three, Bedard cited the fact that the designer
of the obstacle course uneguivocally stated that it is not
gender-neutral.12 Finally, Bedard pointed to two general
factors indicating that the entire process was invalid -- that
several individuals were excepted from the procedures (i.e.,
Thibideau, Moore, plaintiff, and Murray), and that, under
Johnston's previous "call" system, women were not reguired to
pass a physical agility test to serve as part-time
12In his deposition, O'Donnell stated that the test was not gender-neutral because it "puts a premium on physical abilities that tend to favor males, things like upper arm strength, strength and endurance, general endurance". O'Donnell contends, however, that his test is valid because it appears to both casual observers and professional firefighters that the test included the "kinds of things that firefighters have to do". He admitted that he had never determined whether a correlation actually existed between test performance and subseguent job performance.
12 firefighters .13
After the hearing. Magistrate Judge Barry issued a report
recommending that I allow defendants to hire three new
firefighters on August 13, 1993 and that plaintiff only be hired
to fill the fourth position if she passes a physical strength and
agility test administered pursuant to the 1992 NFPA guidelines.
Plaintiff objects to Judge Barry's recommendation, asserting that
his factual findings and legal conclusions were erroneous and
that she is entitled to immediate instatement as an entry-level
firefighter.14 I review the matter de novo. Fed. R. Civ. P.
72(b); 28 U.S.C.A. § 636(b)(1)(C) (West 1993).
II. DISCUSSION
Legault's primary claim for relief rests on a "disparate
impact" sexual discrimination theory. See Civil Rights Act of
130ver the life of the call system, three women had served as call firefighters. According to Mayor, they performed "admirably". They performed the same tasks that permanent firefighters performed, and did so without taking a physical agility test. Instead, their abilities were assessed during training and while they were on duty.
14Since Judge Barry's ruling, the Town has filled the three firefighting positions. Plaintiff has also received right to sue letters from the U.S. Department of Justice and the State of Rhode Island Commission for Human Rights.
13 1991, Pub. L. 102-166, § 105(a), 42 U.S.C.A. § 2000 e - 2 (k ) (1)(A)
(West 1993); Griggs v. Duke Power Co . , 401 U.S. 424, 431 (1971).
As I find that she is entitled to preliminary injunctive relief
on this theory, I do not address her other claims. My analysis
begins with the preliminary injunction standard recently
reaffirmed by the First Circuit in Gately v. Massachusetts, 2
F .3d 1221, 1224-25 (1993).
A. The Preliminary Injunction Standard
In deciding whether to grant a preliminary injunction, a
district court must consider four factors:
(1) the likelihood of the movant's success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant eguities, i.e., the "hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld," Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991); and (4) the effect on the public interest of a grant or denial of the injunction.
Gately, 2 F.3d at 1224. Although each factor is significant, the
"sine gua non of [the preliminary injunction standard] is whether
the plaintiffs are likely to succeed on the merits." I d . at 1225
(guoting Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993))
(brackets in original). Accordingly, I first analyze the merits
of Legault's claim and then address the other three factors
14 seriatim.
1. Likelihood of Success On the Merits
Legault claims that the Department's threshold agility test
and three-part obstacle course test violate Title VII because
they disproportionately exclude women from the Department's
firefighter selection process. She alleges that the agility test
excluded all female applicants from the process, including
herself, because its hose pull component reguired upper body
strength not present in the average woman. Although all female
applicants were thereby precluded from taking the obstacle course
test, Legault alleges that this test also places a similar
emphasis on upper body strength, and thus has a gender-based
disparate impact. Based on the evidence presented thus far, I
find that Legault will likely prevail on the merits of her
disparate impact claim.
Under the "disparate impact" theory of employment
discrimination, a facially neutral testing procedure violates
Title VII if it disproportionately excludes female applicants
from the hiring process and is not justified by business
necessity. See 42 U.S.C.A. § 2000e-2(k)(1)(A)(1); Dothard v.
Rawlinson, 433 U.S. 321, 329 (1977). Proof in such cases is
15 governed by a series of shifting evidentiary burdens. First, the
plaintiff must establish a prima facie case by demonstrating that
a particular testing procedure disproportionately excludes women.
42 U.S.C.A. § 2000e-2(k)(1)(A)(i); Dothard. 433 U.S. at 329. A
showing of intentional discrimination is not reguired. See i d .
at 328-29; Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986-
87 (1988). The burden then shifts to the employer to show that
the procedure is "job related" and "consistent with business
necessity."15 42 U.S.C.A. § 2000e-2 (k) (1) (A) (i) ; see also
Dothard, 433 U.S. at 329. Even if the employer meets this
burden, however, the plaintiff may still establish a Title VII
violation by showing that the employer has refused to adopt a
15In Wards Cove Packing Co. v. Atonio, the Supreme Court held that, while the defendant carries the burden of producing evidence of a business justification, the burden of persuasion remains with the plaintiff. 490 U.S. 642, 659 (1989). This holding was a marked departure from the Court's holdings in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and several subseguent disparate impact cases, each of which placed the full burden of proving "business necessity" on the defendant. Two years after Wards Cove, however. Congress responded by statutorily reversing the Court's decision to the extent it departed from the concept of business necessity enunciated in Griggs. Civil Rights Act of 1991, Pub. L. 102-166, §(3)(2), 105 Stat. 1075 (1991); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 & n.5 (11th Cir. 1993); Frazier v. Garrison I .S .D ., 980 F.2d 1514, 1525 & n.34 (5th Cir. 1993). As a result, the defendant once again bears the full burden of proving business necessity.
16 readily available, non-discriminatory alternative to the
challenged practice. Albemarle Paper Company v. Moody, 422 U.S.
405, 425 (1975). 42 U.S.C.A. §§ 2000 e - 2 (k) (1) (A) (ii) & (C) .
(a) Significant Disparate Impact
Legault has shown that she is likely to succeed at trial in
proving that the agility and obstacle course tests both have a
significant disparate impact on women. Regarding the threshold
agility test, Legault has presented uncontradicted statistical
evidence of a gender-based discrepancy: 30 of the 35 male
candidates passed the test, whereas none of the 11 female
candidates passed. Whether the yardstick is intuition, the
EEOC's "four-fifths rule", or some other measure, this
discrepancy is "substantial" for Title VII purposes. See Fudge
v. Providence Fire Dept., 766 F.2d 650, 657 (1st Cir. 1985)
(judge justified in intuitively determining that discrepancy
between 4% and 13% passing rates was substantial); EEOC Uniform
Guidelines on Employee Selection Procedures, 29 C.F.R. §1607.4(0)
(1993) (selection rate less than 4/5 (or 80%) of rate for group
with highest passing rate regarded as evidence of adverse
impact).
Admittedly, the sample size -- 46 applicants -- is small.
See Watson, 487 U.S. at 996-97; Fudge, 766 F.2d at 657. However,
17 by using Bedard's expert testimony to corroborate her statistical
evidence, Legault has drastically reduced the possibility that
the observed disparity is due to chance. At the preliminary
injunction hearing, Bedard testified that the agility test's hose
pull reguired upper body strength not present in the average
woman. Conseguently, he concluded that the test favored men.
Defendants have had ample opportunity to present evidence
contradicting this testimony, but have failed to do so. Having
no reason not to accept Bedard's testimony, I find that Legault
has shown that she is likely to succeed in proving that the hose
pull component of the agility test is gender-biased. Moreover, I
agree that this gender bias taints the test as a whole. See 42
U.S.C.A. § 2000e-2(k) (B) (i); 137 Cong. Rec. 515,276 (1991),
reprinted at 1991 U.S.C.C.A.N. 767 (functionally-integrated
components of same test may be analyzed as one employment
practice) .
With respect to the obstacle course test, Legault primarily
relies on expert testimony to establish her prima facie case.
The test's designer, Leo O'Donnell, admitted during his
deposition that the test is not gender-neutral because it "puts a
premium on physical abilities that tend to favor males, things
like upper arm strength, strength and endurance, and general
18 endurance." Bedard also testified that several of the test's
components (i.e., the second hose pull and the dummy-hauling
portion of the obstacle course) required the same degree of upper
body strength that caused all female applicants to fail the
agility test's hose pull requirement. Based on the test's
composition and O'Donnell's testimony, Bedard concluded that the
obstacle course was gender-baised.
Although no female applicants were permitted to take the
obstacle course test, its similarity to the agility test
buttresses Bedard's conclusion that the obstacle course test also
has a significant disparate impact on women. Given that the two
tests are (1) closely related in form and function and (2)
successive stages in a lock-step testing procedure, it is logical
to conclude, based on the evidence produced at the preliminary
injunction hearing, that the tests will have similar disparate
impacts. See Davis v. City of Dallas, 748 F. Supp. 1165, 1173
(N.D. Tex. 1990) (similar hiring procedures that are subsequently
validated may be used to validate prior hiring procedures). If
employers in disparate impact cases were permitted to avoid
injunctive relief simply by dividing a testing procedure into
separate stages with similar discriminatory components, a
plaintiff would be forced to brave several additional rounds of
19 litigation before she could obtain a hiring order. I decline to
impose such a reguirement on Legault on the present record.
Obviously, given the above discussion, Legault has not made
an exhaustive attempt to establish a prima facie case against
either test. However, defendants have highlighted no fallacies
or deficiencies underlying Legault's case and and have presented
no countervailing evidence. Given that Legault has presented
evidence which on its face demonstrates that the two tests have a
substantial discriminatory effect, I find that Legault is likely
to prove that defendants' agility and obstacle course tests have
substantial, gender-based disparate impacts. See Dothard, 433
U.S. at 331.
(b) Business Necessity
Legault's prima facie showing shifts the burden to the
defendants to demonstrate that its agility and obstacle course
tests are "job related" and "consistent with business necessity."
See 42 U.S.C.A. § 2000e-2(k)(1)(A)(i); Griggs, 401 U.S. at 432.
There are three methods by which defendants can demonstrate that
the tests meet this standard:
[1] "empirical" or "criterion" validity (demonstrated by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified); [2] "construct" validity (demonstrated by examinations structured to meansure
20 the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance); and [3] "content" validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant).
Washington v. Davis, 426 U.S. 229, 247 & n.13 (1976) (square
brackets added); see also EEOC Uniform Guidelines on Employee
Selection Procedures, 29 C.F.R. §§ 1607.5(A)- (B) (1993). Here,
defendants argue that the tests' components have content validity
because they resemble some firefighting tasks. I disagree.
At minimum, to demonstrate content validity an employer
must show that its testing procedures accurately test important
skills at a level commensurate with that legitimately required by
the job. See Albemarle Paper Co . , 422 U.S. at 431 (construing
Griggs and 29 C.F.R. § 1607.4(c)); Boston Chapter NAACP, Inc. v.
Beecher, 504 F.2d 1017, 1021-22 (1st Cir. 1974), cert, denied,
sub nom Director of Civil Serv. v. Boston Chapter NAACP, Inc.,
421 U.S. 910 (1975). This type of demonstration necessarily
begins with a thorough job analysis in which the employer breaks
the job down into its component tasks, breaks these tasks down
into a set of component skills, and then determines the relative
importance of these skills and the degree of proficiency required
in each. Guardians Ass'n of New York City Police Dept, v. Civil
21 Serv. Com'n, 633 F.2d 232, 242 (2d Cir. 1980), a f f 'd , 463 U.S.
582 (1983) (quoting Vulcan Soc. of New York City Fire Dept, v.
Civil Serv. Com'n, 360 F. Supp. 1265, 1274 (S.D.N.Y.), a f f 'd , 490
F.2d 387 (2d Cir. 1973)). The employer must then demonstrate
that its procedures accurately and reasonably test the skills
identified in the job analysis in accordance with their relative
importance. See i d . at 242-43.
Here, defendants' job analysis goes no farther than a
several-year-old job specification that describes a firefighter's
general duties. The specification begins by stating that a
firefighter's duties involve "the performance of hazardous tasks
under emergency conditions" and "frequently requir[es] strenuous
physical exertion". It then goes on to provide examples of
representative duties, including "driving and operating equipment
and auppurtenances of heavy apparatus", "advancing fire hose into
burning building" and "to cut, chop or break openings in roofs,
floors, partitions and ceilings." The specification does not
break these representative tasks into their component skills,
assess their relative importance, or indicate the degree of
proficiency required for a firefighter to safely perform his or
her duties. The job specification's generality thus prevents it
from being an adequate means of determing whether the agility and
22 obstacle course tests have content validity. See, e.g., Vulcan
Pioneers, Inc. v. New Jersey Dept, of Civil Serv., 832 F.2d 811,
815-16 (3d Cir. 1987); Jones v. New York City Human Resources
Adm i n ., 391 F. Supp. 1064, 1081 (S.D.N.Y. 1975), a f f 'd , 528 F.2d
696 (2d Cir.), cert, denied, 429 U.S. 825 (1976).
Given "the unlikelihood that an examination prepared without
benefit of a probing job analysis will be content valid," the
absence of such an analysis requires the examination's proponent
to "carr[y] a greater burden of persuasion on the issue of job
relatedness." Guardians, 633 F.2d at 242-43. However, rather
than compensate for their lack of a proper job analysis by
proffering evidence that the two tests have been thoroughly
validated, defendants choose to rely on a few isolated bits of
anecdotal evidence. While "formal" validation studies are not
necessary to satisfy the job-related/business necessity standard,
Watson, 487 U.S. at 998, defendants' meager showing is grossly
deficient.
First, Chief Zambarano defended the tests largely on the
basis that they were similar to those used by four other Rhode
Island cities. However, Zambarano has presented no evidence
indicating that these other cities have conducted proper job
analyses or validation studies. In this circumstance, follow the
23 leader is not an acceptable means of test validation.
Second, Zambarano also states that he consulted the relevant
NFPA standards before deciding upon a final test format.
Admittedly, the 1987 standards contain hose pull and timed run
requirements. In 1989, however, the NFPA issued a proposed
amendment indicating that all physical agility tests should be
validated prior to use. Moreover, the August 1992 version
deleted all preset physical ability requrements, stating that
"[p]hysical fitness requirements for entry level personnel shall
be developed and validated by" the relevant authorities, and
"shall be in compliance with applicable Equal Opportunity
regulations and other legal requirements."
Third, Leo O'Donnell, the obstacle course test's designer,
stated that his test had content validity because it "appear[s]
to be to the casual as well as the trained professional to be the
kind of things that fire fighters have to do." O'Donnell,
however, appears to base this conclusion on isolated answers to
such randomly asked questions as "when was the last time you had
to carry someone out of a building"? In addition, although
O'Donnell stated that it would "clearly ... be a good idea" to
validate his test, he admitted that "it was just something we
d i d n 't d o ."
24 Finally, the only other evidence supporting the two tests'
content validity are Zambarano and Heywood's assertions that the
tests "simulated things that we would normally come across in the
fire service". In a similar situation, another court in this
Circuit has stated that "such a substitution of instinct for hard
proof is convenient, but totally lacking in legal merit." Burney
v. City of Pawtucket, 559 F. Supp. 1089, 1101 (D.R.I. 1983)
(Selya, J . ) . I agree.
Given that Legault has made a prima facie showing of
substantial disparate impact and that defendants have failed to
justify their two tests as "job related" and "consistent with
business necessity", I conclude that there is a substantial
likelihood that Legault will ultimately prevail on the merits of
her claim. I now turn to the other three factors in the
preliminary injunction standard.
2. Irreparable Harm
Legault claims that she will be irreparably harmed if the
Department does not hire her immediately. She rests her claim on
two grounds: (1) the Department may fill the available positions
before her case is decided; and (2) even if a position were
available after the trial and defendants were ordered to hire her
25 immediately, compensate her for lost wages and benefits, and
adjust her seniority retroactively, the lost time on the job
would result in a "career-long diminution of experience" that no
court order could completely cure. While the case is a close
one, I find the threat of irreparable harm sufficient to support
Legault's reguest for preliminary injunctive relief.
In this Circuit, irreparable harm is subject to a "sliding
scale analysis." Gately, 2 F.3d at 1232. At minimum, plaintiff
must show that "adeguate compensatory or other corrective relief
will [not likely] be available at a later date, in the ordinary
course of litigation ...." Sampson v. Murray, 415 U.S. 61, 90
(1974) (guoting Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d
921, 925 (D.C. Cir. 1958)). The reguired showing increases,
however, in the presence of factors "which cut against a court's
traditional authority to issue eguitable relief." Gately, 2 F.3d
at 1232. These factors include a court's lack of statutory
authority to issue the reguested relief; the plaintiff's failure
to exhaust applicable administrative remedies; and, in cases
involving governmental employers, the "wide latitude
traditionally granted the government in dispatching its own
internal affairs." I d . at 1233-34 (guoting Sampson, 415 U.S. at
83). Additionally, where the relief sought includes interim
26 reinstatement or hiring, the plaintiff's showing of irreparable
harm must also be sufficient to overcome the courts' traditional
reluctance to command specific performance of personal service
contracts. I d . at 1234 (guoting Sampson, 415 U.S. at 83).
Legault is justifiably concerned that a lack of available
positions may deprive her of immediate post-trial relief. The
Department has already filled at least six of the eight newly-
created positions; given its agreement with the local
firefighter's union, the Department is likely to fill the
remaining positions prior to trial; under the Department's
current ranking scheme, Legault will not be selected; and
it may not be appropriate after the trial to reguire the
Department to make room for Legault by firing a recent hireor by
creating a new position. By itself, however, this potential harm
does not justify reguiring the Department to hire her
immediately. I can protect her position simply by suspending
further hiring until the merits of the case have been determined.
Legault's potential loss of valuable firefighting
experience, however, reguires stronger relief. Firefighting is a
skill learned on the job. According to Captain Heywood, it
"reguires experience and the only way you get that is to actually
do it." This means more than fighting actual fires; at the
27 hearing. Chief Zambarano admitted that the Department's training
sessions are also "valuable experience." Missed days thus are
missed learning opportunities. These lost opportunities are also
extremely difficult to recoup. Legault cannot schedule fires to
occur more often on her shifts, nor can she reguire the other
firefighters to endure the extra training sessions necessary to
integrate her into a firefighting team and to bring her skills up
to speed with their own. The result is an inevitable discrepancy
between her seniority status, which can be retroactively
adjusted, and her experience level, which cannot.
This discrepancy has serious conseguences. It may impair
her ability to take on responsiblities commensurate with her
seniority. It may cause superiors to doubt her abilities and
more experienced co-workers to resent her. While probably not
the "career-long" injury that Legault claims -- after many years
on the force, the practical importance of the missed time would
necessarily dwindle -- this discrepancy would be an unavoidable
disadvantage in her initial years on the job. I hold that this
is irreparable harm sufficient to satisfy Gately's minimum
reguirements. See Gately, 2 F.3d at 1234 (plaintiff police
officers irreparably harmed by time away from job as their
ability to keep in touch with new development were impaired).
28 Given that there are no factors cutting against my authority to
issue the reguested relief, see i d . at 1233-34, 16 the present
facts reguire no greater showing.
3. Balancing of the Equities
As a counterweight to Legault's showing of irreparable harm,
defendants claim that she will be a danger to herself, to the
other firefighters and to the public if she is hired without
taking the Department's physical agility and obstacle course
tests. Defendants, however, have presented no evidence to
substantiate this claim. As I indicate in Section II.B., infra,
I reject defendants' contention that Legault is not otherwise
gualified for the job. For the same reasons, I reject any
attempt by defendants to assert this contention here. I
16First, Title VII explicitly authorizes court-ordered hiring. See 42 U.S.C.A. §2000e-5(g)(1) (West 1993). Second, having received right-to-sue letters from both the U.S. Department of Justice and the State of Rhode Island Commission for Human Rights, Legault has exhausted available administrative remedies. See Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st Cir. 1983) . Third, the need to ensure defendants' compliance with Title VII and the need to protect Legault's statutory rights more than overcome any reluctance I might have to issue this type of relief. Finally, while hiring Legault might interfere with the Town's ability to conduct its internal affairs, this interference is hardly substantial enough to act as an independent constraint on the court's eguitable powers.
29 therefore conclude that Legault's showing of irreparable harm
clearly outweighs any potential harm that her hiring will cause
defendants.
4. The Public Interest
Finally, Legault's reguest for injunctive relief reguires
that the public's substantial interest in eradicating sexual
discrimination be balanced against its interest in the safety of
its firefighters and the people they serve. After weighing the
likelihood that defendants' testing procedures violate Title VII,
see Section II.A.I., supra, against my finding that defendants
have done nothing to support their claim that Legault poses a
risk to public safety if she is hired as a firefighter, see
Sections II.B., infra, I conclude that the public interest favors
issuance of the reguested relief.
B. The Requested Relief
Where a plaintiff has likely been denied employment based on
sex, federal courts have the eguitable power both to ensure that
defendants comply with the law pending a determination of the
merits and to order any interim compensatory relief necessary to
prevent the plaintiff from suffering irreparable harm. See
30 Albemarle Paper Co., 422 U.S. at 417-18; Sinai v. New England
T e l . & T e l . C o ., 3 F.3d 471, 476 (1st Cir. 1993) . However, an
employer may nevertheless shield itself from a hiring order in an
individual disparate impact case if it can establish that the
plaintiff is unqualified for the position she seeks. See Franks
v. Bowman Transportation Co . , 424 U.S. 747, 772 (1976) .17 Here,
defendants argue that Legault lacked the physical abilities
necessary to safely and effectively perform her duties as an
entry-level firefighter; that, as a result, she would not have
been hired, irrespective of the testing procedures' disparate
impact; that she therefore was not injured by these procedures;
and that consequently, she is not entitled to a hiring order.
17Although Franks is a class action case where a "pattern or practice" of discrimination was alleged, defendants have offered no reason why a different burden of proof would apply in individual disparate impact cases. See Teamsters v. United States, 431 U.S. 324, 367-71 (1977) (in pattern or practice case, defendant has the burden of proving that individual plaintiffs were unqualified for positions); 42 U.S.C.A. §2000e-5 (g) (2) (B) (West 1993) (in disparate treatment case, if defendant can demonstrate that it would have taken the same action in the absence of the impermissable movtivating factor, it may avoid back pay and injunctive relief but not declaratory relief and attorney's fees); East Texas Motor Freight Sv s ., Inc. v. Rodriguez, 431 U.S. 395, 400, 402, 403 n.9 (1977) (in class action attacking facially neutral employment practice, defendant entitled to avoid damages by demonstrating that individual plaintiffs were not qualified and would not have been hired in any event).
31 While it is unclear whether a "clear or convincing" or
"preponderance of the evidence" standard should apply, see Price
Waterhouse v. Hopkins, 490 U.S. 228, 253-54 (1989), I give
defendants the benefit of the doubt and judge their claims
against the lesser standard. Even under this standard, however,
defendants have failed to show that they will likely carry their
burden at trial.
It is apparent from the record that defendants have made
virtually no effort to support their claims beyond expending the
energy to assert them. First, they have not attempted to
evaluate Legault's physical gualifications beyond the results of
her participation in the Department's testing procedures and
training program. Conseguently, the only evidence that reflects
negatively on Legault's abilties are the facts that she failed a
discriminatory component of the agility test and that she was not
allowed to take the egually discriminatory obstacle course test.
Rather than showing that Legault is ungualified, this evidence
helps to establish her prima facie case.
Moreover, while firefighting undoubtedly reguires physical
ability, defendants' attempts to identify and guantify these
reguirements go no further than the woefully inadeguate job
description and anecdotal validation attempts detailed in Section
32 II.A.l(b), supra. As a result, even if defendants had provided
some evidence that reflected negatively on Legault's abilities, I
would be unable to determine whether this evidence established
that she was not gualified to be a firefighter.
Finally, although Mayor aRusso eloguently expressed his
concerns for public safety, his attempt to invoke these concerns
to prevent Legault's instatement are suspect at best. He agreed
in writing that "participation in the training program and class
standing after the completion of the training program will
determine placement on the hiring eligibility list for such
vacancies as may open." Only after Legault's performance in the
training program had guaranteed her a position did he decide that
she had to "pass all the other tests" before she would be hired.
In addition, defendants had previously hired several individuals
as firefighters, including women, without their having passed a
physical ability test or participating in a training program. In
these instances, defendants ensured everyone's safety by
supervising the untested individuals, assessing their abilities
and then increasing their responsiblities as these abilities
developed. Given that Legault has already gone through several
physical tests and the Department's training program, there is no
33 reason why the same cannot be done here.18
In sharp contrast to the defendants' ineffective
presentation, plaintiff has proffered considerable evidence
affirmatively indicating that she is qualified to be an entry-
level firefighter: she filled out the application form, hold's a
valid driver's license and is EMT-certifled by the state of Rhode
Island; she passed the aerial ladder climb and the ladder
replacement drill outright; although she failed to complete the
timed run within the required twelve minutes, she satisfied the
thirteen minute standard that defendants admit they should have
used; and finally, she placed second overall in the Department's
training program, which included physical testing as well as
classroom work. The upshot of these facts is that Legault
satisfied every non-discriminatory requirement administered by
Based on the evidence presented thus far, I find that
defendants will likely fail to establish that Legault lacks the
physical abilities to be a safe and effective firefighter.
Accordingly, she is entitled to instatement as an entry-level
18If Legault is not physically able to carry out her duties, defendants can move that I reconsider my order. At this point, however, the evidence points in the opposite direction.
34 firefighter pending determination of the merits of this case.
Because I am confronted with a likely Title VII violation, I also
have a duty to go beyond the preliminary relief reguested and
ensure defendants' interim compliance with the law. Guardians
Ass'n of New York City Police Dept, v. Civil Serv. Com'n, 63 0
F.2d 79, 108 (2d Cir. 1980), cert, denied, 452 U.S. 940 (1981).
Therefore, pending determination of the merits of this case, I
enjoin further use of the tests and any eligibility lists derived
therefrom.
III. CONCLUSION
For the foregoing reasons, I grant Legault's reguest for a
preliminary injunction and order defendants to hire her
immediately pending a determination of the merits. Subject to
the exceptions outlined in Section II.B., supra, and pending a
determination of the merits, I also enjoin further use of
defendants' agility and obstacle course tests and any eligibility
lists derived therefrom.
To ensure that the merits of this case are determined as
guicky as possible, I will hold a scheduling conference at 9:30
a.m. on February 22, 1994. At the conference, the parties shall
35 be prepared to identify the earliest possible date they will be
ready for trial.
SO ORDERED.
Paul Barbadoro United States District Judge
February 10, 1994
cc: Thomas A. DiLuglio, Esg. Henry Spaloss, Esg. Ina P. Schiff, Esg.