Bazile et al v. City of Houston
Filing
152
MEMORANDUM AND OPINION entered DENYING 145 Joint MOTION to Alter Judgment.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DWIGHT BAZILE, et al.,
Plaintiffs,
VS.
CITY OF HOUSTON,
Defendant.
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CIVIL ACTION NO. H-08-2404
MEMORANDUM AND OPINION
This Title VII disparate-impact suit challenges the City of Houston’s system for promoting
firefighters to the positions of captain and senior captain. Seven black firefighters sued the City,
alleging that the promotional exams for the captain and senior-captain positions were racially
discriminatory, in violation of the Fourteenth Amendment, 42 U.S.C. § 1981, and Title VII. After
mediation, the City and the seven firefighters reached a settlement that included a proposed consent
decree. The Houston Professional Fire Fighters Association (“HPFFA”) intervened in the lawsuit
and objected because the proposed consent decree changed the promotional exams in ways
inconsistent with the Texas Local Government Code and the collective-bargaining agreement
between the City and the HPFFA.
On February 6, 2012, after an evidentiary hearing, this court entered a memorandum and
opinion accepting in part and rejecting in part the proposed consent decree. The court found that
the City and the seven firefighters showed that the captain and senior-captain exams violated Title
VII and that some aspects of the proposed consent decree—including the use of situational-judgment
questions and an assessment center—were justified by the record evidence and were job-related and
consistent with business necessity. But the court also found that the City and the plaintiffs did not
show that other parts of the proposed consent decree were tailored to respond to the disparate impact
alleged. One part of the proposed consent decree that was rejected called for grading the jobknowledge component of the promotional exams pass/fail. This court found that though the record
showed “that exclusive use of a multiple-choice job-knowledge test is linked to disparate impact,”
the record did not show “that reducing the job-knowledge test to one part of the promotion exam and
grading it pass/fail—and making it otherwise irrelevant to the promotion decision—are steps tailored
to the disparate impact remedy.” (Docket Entry No. 137, at 97.)
The City and the plaintiffs have filed a motion to alter or amend this court’s February 6, 2012
memorandum and opinion. (Docket Entry No. 145.) Citing a study recently published by Lievens
and Patterson,1 the City and the plaintiffs argue that because the promotion exam will include both
a situational-judgment component and an assessment-center component, the job-knowledge
component “add[s] no value with respect to incremental validity or predicting job performance.”
(Id. at 5.)
The City and the plaintiffs acknowledge that adding either a situational-judgment
component or an assessment-center component to a preexisting job-knowledge test increases the
test’s validity, that is, its ability to predict job performance. (Id. at 4–5.) But, they argue, the jobknowledge component “is of little value as [a] weighted test component when used in conjunction
with” situational-judgment and assessment-center components. The City and the plaintiffs urge that
the job-knowledge component of the captain and senior-captain exams “should proceed as pass/fail
in the overall testing process.” (Id. at 6.) Based on the Lievens and Patterson study, the City and
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Filip Lievens & Fiona Patterson, The Validity and Incremental Validity of Knowledge Tests, Low-Fidelity
Simulations, and High-Fidelity Simulations for Predicting Job Performance in Advanced-Level High-Stakes Selection,
96 J. APPLIED PSYCHOL. 927 (2011).
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the plaintiffs ask this court to reconsider its finding that grading the job-knowledge component of
the promotion exams pass/fail is not sufficiently tailored to the disparate-impact remedy.
The HPFFA opposes the motion to alter or amend. The HPFFA argues that “[t]he Movants
have not presented any new evidence or new law that should cause the Court to depart from its
previous finding that making the [job-knowledge] test pass/fail is not required to remedy any alleged
wrongs.” (Docket Entry No. 146, at 3.) The HPFFA also argues that the City and the plaintiffs have
misinterpreted the Lievens and Patterson study. The HPFFA has submitted an affidavit from its
expert from the evidentiary hearing, Dr. Winfred Arthur, Jr. In his affidavit, Dr. Arthur states that
the Lievens and Patterson study confirms that job-knowledge tests are valid predictors of job
performance; that the study does not support the conclusion that a job-knowledge component is
redundant when an exam includes both situational-judgment and assessment-center components; and
that if any test component should be eliminated, it should be the assessment-center because the study
shows it contributes the least to predicting job performance as compared to the other two
components. (Docket Entry No. 146-1, at 12–14.)
The court heard oral argument on the reconsideration motion. After carefully considering
the motion and response, the parties’ submissions, and counsels’ arguments, the court denies the
motion to alter or amend.
In the February 6, 2012 memorandum and opinion, the court rejected that part of the
proposed consent decree calling for grading the job-knowledge component of the captain and seniorcaptain promotion exams pass/fail. The basis for that ruling was the City’s and plaintiffs’ failure
to show that grading the job-knowledge component pass/fail was tailored to respond to the disparate
impact they had alleged. In their motion to alter or amend, the City and the plaintiffs do not address
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the court’s basis for that ruling. Instead, they argue, based on the Lievens and Patterson study, that
when an exam includes both situational-judgment and assessment-center components, a jobknowledge component is redundant because it does not increase the exam’s validity.
The record is insufficient to support the conclusion that the job-knowledge component of the
exam is meaningless or that grading this component pass/fail is tailored to remedy the disparate
impact the record shows. The only addition to the record is the Lievens and Patterson study. It does
not provide an adequate basis to amend or alter this court’s earlier findings and conclusions. The
Lievens and Patterson study recognized that “[m]eta-analytic research . . . documents that [jobknowledge] tests are among the best predictors for training and job performance” and confirmed this
observation. (Docket Entry No. 145-1, at 30.) In addition, the motion to alter or amend and the
Lievens and Patterson study do not address whether grading the job-knowledge component of the
captain and senior-captain exams pass/fail and making it otherwise irrelevant to the exam results is
tailored to the disparate-impact remedy. Instead, the motion to alter or amend is limited to arguing
that this one study shows that the promotional exam will have an enhanced ability to predict job
performance if it is revised to reduce the role of the job-knowledge component. This change, which
is inconsistent with both state law and the collective-bargaining agreement, is not shown to be
tailored to what is needed to address the disparate impact the record revealed.
The City and plaintiffs argue as if this court was designing the promotional exams on a blank
slate. The argument does not acknowledge the limits imposed by the law. The change the City and
the plaintiffs propose goes beyond what is necessary to address the disparate impact shown and
therefore goes beyond what the law allows as a remedy.
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The motion to alter or amend, (Docket Entry No. 145), is denied.
SIGNED on May 29, 2012, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge
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