July 26--A federal appeals court has reinstated a lawsuit by three black San Francisco firefighters who claimed bias in a 2008 promotional exam.
The exam, for the command position of battalion chief, was one of the first the Fire Department had given since the completion in 2000 of a decadelong consent decree designed to increase racial equality in a department long dominated by whites. The decree gave federal courts oversight of hiring, testing and promotions.
Some African Americans won promotions in the 2008 exam, but three veteran firefighters who did not receive immediate promotions claimed the test was flawed and relegated most black applicants to the bottom of the list.
U.S. District Judge Jeffrey White dismissed their suit in 2012, ruling that they had missed legal deadlines. He also accepted the Fire Department's statement that individual differences in test scores were irrelevant because anyone with a passing score was equally eligible for promotion.
But the Ninth U.S. Circuit Court of Appeals ruled Thursday that the firefighters had filed their suit on time and had also offered evidence that candidates with lower test scores were denied promotions, based on an exam that they claimed was biased.
The 3-0 ruling sent the case back to White to decide whether the tests and their scoring had an adverse impact on African Americans. The court said there was no evidence of overt racism, because those scoring the test were kept unaware of the candidates' race.
While their test scores left all three black firefighters on the waiting list, two of them, Mark Johnson and Michael Bryant, were later promoted to battalion chief, said their lawyer, Murlene Randle.
But she said they still seek damages from the initial denial, which also cost them a chance to take a further promotional exam. Randle said the third firefighter, Franco Calzolai, has not been promoted.
"We're pleased to have an opportunity to go back and litigate the case fully," Randle said.
The city is prepared to contest the remaining claims in the suit, said Gabriel Zitrin, spokesman for City Attorney Dennis Herrera.
Bob Egelko is a San Francisco Chronicle staff writer. E-mail: [email protected] Twitter: @egelko
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