Akron Fire Promotional Case Slogs On

You know it’s probably going to be messy when a federal appeals court starts off its opinion by commenting that “the parties have been litigating this case with remarkable vigor and venom since 2008. After two trials and multiple appeals, the parties remain unwilling to settle their differences.”

“This case” is a multi-faceted challenge to the 2004 Akron Fire Department promotional examinations. One set of unsuccessful promotional candidates alleged that the promotional process disparately impacted firefighters over the age of forty in violation of the Age Discrimination in Employment Act. Another set of candidates alleged that the Lieutenant promotional process adversely impacted African-American applicants. Yet another set of candidates alleged that the Captain promotional process adversely impacted Caucasian candidates.

In 2008, a jury found that the two promotional processes discriminated against all three groups of plaintiffs and that business necessity did not justify the promotion process. The jury awarded each candidate for the rank of Lieutenant $9,000 in compensatory damages and $72,000 in front pay. The jury awarded each candidate for the rank of Captain $10,000 of compensatory damages and $80,000 in front pay.

Five years of post-trial delay and motions followed. Finally, the trial court ordered a new trial on the sole issue of damages. On August 30, 2013, after a retrial, the trial court entered an award of back pay in the amount of $616,217.75. In 2014, the trial court entered a permanent injunction and appointed a court monitor to oversee the Department’s promotional process. Both sides appealed to the Sixth Circuit Court of Appeals.

Much of the Court’s decision focused on the award of back pay. The Court noted that “the purpose of back pay under Title VII and the ADEA is to make whole the victim of an unlawful employment practice by restoring the employee to the position he or she would have been in absent the discrimination. The back pay award should completely redress the economic injury the plaintiff has suffered as a result of discrimination. It should include the salary, including any raises, which plaintiff would have received but for the discrimination, as well as sick leave, vacation pay, pension benefits and other fringe benefits she would have received but for discrimination.”

The Court found that the award of damages failed this test by not compensating the plaintiffs for missed step increases. The Court observed that “when discrimination continues over time, the harms it causes are compounded. An employee denied a raise in one year will fall further behind if raises in subsequent years are a function of prior salaries. In this case, the back-pay calculations should have included step increases. Because the back-pay calculations did not incorporate step increases, the back-pay award did not make the Plaintiffs whole.”

The Court also found that “the back-pay award did not adequately make the Plaintiffs whole because the back-pay award did not include prejudgment interest. Prejudgment interest, of course, is an element of complete compensation. The Plaintiffs have consistently pursued prejudgment interest in the district court, and the district court led the Plaintiffs to believe it would consider their request for prejudgment interest at the conclusion of the retrial, but did not do so. The delays in this case have been considerable. The Plaintiffs should not be penalized for delays in the judicial process, nor should Akron benefit from such delays.”

The Court also rejected the City’s argument that oversight by a court monitor was unnecessary. The Court found that “the complex, intertwining issues presented by this case make this case exceptional and warranted the appointment of a court monitor. In addition, the complexities involved in creating a promotional process and the existence of a collective bargaining agreement require the skill of a tactful court monitor.”

In sending the case back to the trial court for recalculation of damages, the appeals court did an extraordinary thing – it assigned the case to a new judge. The Court noted that the trial judge had publicly criticized the conduct of the plaintiffs’ lawyer. Perhaps more importantly, it found that “the history of the case reveals an alarming lack of timely progress toward resolving this case – a case that began nearly a decade ago. After the jury rendered its verdict in December 2008, the district judge waited nine months before entering his findings of fact and conclusions of law and the judgment. The parties waited another 15 months before, on December 30, 2010, the district judge ruled on their post-verdict motions for judgment as a matter of law, new trial, or to amend the judgment, and he has never addressed many of the issues raised in those motions, such as the Plaintiffs’ request for prejudgment interest.

“The district judge was also slow to enter findings of fact and conclusions of law on the issue of back pay. We understand that judicial dockets are relentless and these parties have been extremely litigious, but district judges have a responsibility for moving a case forward, and this district judge has not done that. In the meantime, the City of Akron has not been able to promote firefighters and some Plaintiffs died or retired.”

Howe v. City of Akron, 801 F.3d 718 (6th Cir. 2015).