6th Cir. Removes Judge in Discrimination Case

     (CN) – The Sixth Circuit removed the federal judge who has presided over a long-running firefighter discrimination case out of Akron, Ohio, concluding that he failed in his obligation to move the suit forward.
     In explaining the unusual step of removing U.S. District judge John Adams from the vociferously argued case, the appellate court acknowledged that the parties have been “extremely litigious” since the case was originally filed in 2006.
     However, “district judges have a ‘responsibility for moving a case forward’ … and this district judge has not done that,” said U.S. Circuit Judge Karen Nelson Moore, writing for the three judge panel.
     “In the meantime,” Judge Moore noted in the September 17 ruling, “the city of Akron has not been able to promote firefighters and some Plaintiffs died or retired.”
     The lawsuit was filed by black and white firefighters in Akron, Ohio firefighters who took a test for promotion in 2004, but were passed over due to what they claims was rampant race and age discrimination by the city, which had administered the exam.
     The test contained a mix of oral and written sections. To be eligible for promotion, candidates had to have answered least 70 percent of the questions on the exam correctly; Successful candidates would then be added to a list and interviewed when a position became available.
     However, candidates who were passed over three times would be removed from consideration.
     In a two-year period, the plaintiffs claimed, only three of 28 candidates for lieutenant were black, even though 15 of the 20 blacks who took the exam passed it.
     In 2008, a jury found in favor of the plaintiffs, agreeing Akron’s practices violated the Equal Protection Clause and Ohio anti-discrimination laws. It awarded $9,000 in compensatory damages and $72,000 in front pay to each prospective lieutenant plaintiff, and $10,000 in damages and $90,000 in front pay to each prospective captain plaintiff.
     But the city appealed, insisting any disparities in promotions that had occurred were not statistically significant, were solely coincidental, and did not violate the federal “four-fifths rule.” That rule stipulates that if an ethnic group is selected less than 80 percent of highest-selected ethnic group, the employer may be considered discriminatory.
     It also claimed the damages awarded were not consistent with the plaintiff firefighters’ own testimony.
     The plaintiffs were also unsatisfied with the judgment, and filed a motion for a permanent injunction against Akron’s promotion process. They also asked the court to direct the city to promote all the plaintiff firefighters immediately.
     Both sides then dug in their heels, and a protracted legal battle ensued. As a result, Akron has not promoted a firefighter to lieutenant or captain on a permanent basis in nine years.
     But that’s not to suggest nothing happened in all that time. On July 13, 2011, Judge Adams ordered the city to promote all plaintiffs then still employed by the department by the following week.
     The court also agreed to rehear arguments from both sides on the back pay calculations, which differed between both sides to the tune of on average $14,000 per plaintiff.
     In March 2014, the court granting plaintiffs’ request for a permanent injunction to prevent Akron from promoting lieutenants and captains in the department using the 2004 examination process. The court also appointed a court monitor.
     However, once again both sides complained.
     The plaintiffs took issue with the court’s calculations used to determine back pay (while acknowledging their own initial calculations were flawed); Akron, meanwhile, to exception to the permanent injunction.
     In the Sixth Circuit ruling, Judge Moore echoed the exasperation expressed by many involved in the case.
     During the case “attorneys for both sides engaged in a childish withholding game, rather than providing necessary information to determine how best to make the plaintiffs whole,” she wrote.
     But “the district court also caused some of the confusion leading up to the retrial,” she said.
     Moore pointed out short discovery deadlines, ever-changing pay calculations, delays in district court rulings, and the district court’s decision to exclude a pay expert’s testimony as the reasons the case has lasted in court for more than a decade. “The discord appears to be, at least in part, the result of the protracted nature of this litigation to which the district judge has contributed greatly.”
     “Perhaps the only issue upon which the parties agree is that we should reassign the case to a different district judge,” she wrote.
     Moore slammed the back and forth on pay calculations and said a move by the plaintiffs to introduce a new pay calculation at the last minute – which Akron disparaged as an act of legal gamesmanship – highlighted the confusion in the case.
     “Once the district court has selected starting and ending dates for the back-pay award period, the court must calculate the wages each plaintiff would have earned had he or she been promoted, before subtracting the wages he or she actually earned without the promotion,” Moore wrote.
     She went on to say the pay calculation should have included “step increase,” accounting for the theoretical raises the plaintiffs would have received yearly after promotion., and also included prejudgment interest in the pay awards.
     “We do not make the decision to reassign this case lightly, acknowledging that the district judge faced parties who have engaged in petty, scorched-earth litigation tactics,” Moore wrote. “The parties’ appellate briefs have provided a taste of the unpleasant and unnecessarily bitter dynamic of this litigation.
     “But the discord appears to be, at least in part, the result of the protracted nature of this litigation to which the district judge has contributed greatly. Going forward, resolution of key issues should govern progress in the case,” she concluded.
     The Sixth Circuit did not address whether the district court had erred in any of the specific back-pay calculations, and merely remanded the calculation portion back for a new trial. It upheld the permanent injunction and court monitor.
     Representatives of the parties could not be reached for comment by Courthouse News.

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