March 30, 2010

WHITE FIREFIGHTERS LOSE IN DISPARATE TREATMENT REVERSE DISCRIMINATION RULING

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

On March 12, the 7th Circuit affirmed a district court summary judgment ruling favoring the City of Harvey, Illinois in a case in which four white firefighters were passed over for promotion. There were 8 eight applicants for Deputy Chief, including three of the four plaintiffs, and 9 applicants for Assistant Chief, including all four plaintiffs. All but three applicants were white. A three-person interview committee evaluated each applicant on a 5-point scale based on “Initial impression, decorum, and appearance”; “Interest, dedication and commitment”; “Character and Honesty”; “Personality and Teamwork Ethic”; “Overall poise and general ability to Communicate” and “Education and Certifications.” The City claimed that these interviews were score independently by each member of the committee, but the Fire Chief (Bell) made the final decisions, and only his scores were included in the record. Ultimately, three blacks and one white were promoted.

After reading the district court (U.A. Dist. Lexis 355539) and circuit court rulings, I googled the case and found several blogs that were misleading, making it sound as if this was a case in which four higher scoring white applicants were passed over in favor of the three black applicants. That’s not exactly what happened. Here are the facts. Read carefully — took me several readings to figure it out.

The plaintiffs were four white applicants (R. Stockwell, G. Stockwell, DeYoung & Ciecierski). Before any of the interviews, the Deputy Chief position was offered to Gorman, a white Captain who did not apply. Gorman declined. Among those who did apply, the four highest scores belonged to three blacks (Buie, Tyler & Patterson) and one white (Climpson). The Deputy Chief position was offered to Buie, and two of the Assistant Chief positions were offered to Tyler and Patterson. Climpson, the lone white among the top four, was offered the last Assistant Chief position, but he declined, as did the next highest scoring applicant (Canavan) also white. Before turning to the 6th highest score and below, Chief Bell offered the last position to another non-applicant, who was white (Cook). Cook declined, and Chief Bell passed over R. Stockwell, one of the four white plaintiffs who was ranked 6th. The relative ranking of the other three plaintiffs is unclear in the rulings, but ultimately, all four white plaintiffs were passed over in favor of a black applicant for the third Assistant Chief position.

This was a disparate treatment case decided under McDonnell Douglas v. Green (1975) [411 U.S. 792] rules. Under these rules, plaintiffs establish a prima facie case with easy to generate presumptive facts (they are protected by Title VII, they are qualified for the job, they were passed over, and the search continued). The burden then shifts to the defendant to articulate (or explain), without have to prove, a legitimate nondiscriminatory reason for passing over the plaintiffs. The only burden of proof in this scenario then falls to the plaintiffs to prove with direct or indirect evidence that the explanation(s) offered are a pretext for racial discrimination (i.e., baloney). Ultimately, Chief Bell cited specific reasons for not promoting each plaintiff, all relating to what were essentially personality flaws based on past conduct. The plaintiffs could not discredit the explanations offered. They offered only assertions that the rating process was rigged (which is not evidence) and that among the City’s last 32 police promotions, 31 of them were black. The trial judge ruled that police actions have nothing to do with firefighter actions, and affirmed the summary judgment ruling of the trial judge.

This is not to say Chief Bell did not like these guys. Given the text of the rulings, it seems clear he might have even had it out for them. The key, however, is that his feelings were likely personal, not racial, which A-OK in disparate treatment theory. The plaintiffs would have needed direct evidence (e.g., witnesses willing to provide reasons why any part of the process was tainted by racial concerns), or indirect evidence (e.g., that one or more chosen black applicants had flaws and/or a past history similar to the plaintiffs). Neither was present in this case — but be careful what you read. Blogs favorable to the plaintiffs will point to such factors even though they too lack the evidence. In my opinion, the ruling would have been the same had the plaintiffs been four blacks claiming preference for white applicants.

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