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

. 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);

(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,

(a),

e - 2 (k ) (1)(A)

(West 1993); Griggs v. Duke Power Co . ,

(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,

(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,

(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,

(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.

. A

showing of intentional discrimination is not reguired. See i d .

at 328-29; Watson v. Ft. Worth Bank & Trust,

, 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,

. 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.

(1989). This holding was a marked departure from the Court's holdings in Griggs v. Duke Power Co.,

(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,

(3)(2),

(1991); see also Fitzpatrick v. City of Atlanta,

, 1117 & n.5 (11th Cir. 1993); Frazier v. Garrison I .S .D .,

, 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,

(1975).

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.,

(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,

(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,

; Fudge,

. 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,

(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,

.

(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,

.

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,

, 247 & n.13 (1976) (square

brackets added); see also EEOC Uniform Guidelines on Employee

Selection Procedures,

(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 . ,

(construing

Griggs and

(c)); Boston Chapter NAACP, Inc. v.

Beecher,

, 1021-22 (1st Cir. 1974), cert, denied,

sub nom Director of Civil Serv. v. Boston Chapter NAACP, Inc.,

(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,

, 242 (2d Cir. 1980), a f f 'd ,

(1983) (quoting Vulcan Soc. of New York City Fire Dept, v.

Civil Serv. Com'n,

(S.D.N.Y.), a f f 'd ,

(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.,

(3d Cir. 1987); Jones v. New York City Human Resources

Adm i n .,

(S.D.N.Y. 1975), a f f 'd ,

(2d Cir.), cert, denied,

(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,

, 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,

(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,

. 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,

(1974) (guoting Virginia Petroleum Jobbers Ass'n v. FPC,

(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,

. 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,

). 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,

).

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,

(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.,

(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.,

; Sinai v. New England

T e l . & T e l . C o .,

(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 . ,

(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,

(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,

, 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,

(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

defendants.

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,

(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.

36