Psychologist's Report Muddies Fla. Bias Suit

Nov. 29--A psychologist's report on an obscure subject is complicating Jacksonville's already-difficult position in a long court fight over whether it discriminates against black firefighters seeking promotions.

The Justice Department has sued the city since 2012, saying low numbers of black firefighters who advance in rank suggest biased testing. The city has said its 100-question tests only measure things firefighters need to know for their jobs. But Justice attorneys have told a judge a former city psychologist, whose work revolved around job testing, concluded job knowledge represented as little as 12 percent of the mix of attributes needed for some Jacksonville firefighters' work.

How could that estimate affect the city's defense?

"It weakens it enormously," said Richard Ugelow, a former Justice Department attorney who once supervised cases in the agency's civil rights division, the office suing Jacksonville.

Not everyone sees it that way, though. "Most written tests only cover a small part of the domain of job skills needed in firefighters' jobs," said Susan Carle, a law professor at American University in Washington. She said both sides will have their preferred experts, and will simply argue why their side is right.

While the outcome is far from certain, the fight is basically Jacksonville's to lose. A judge's ruling in June said Justice had made a prima facie case that the testing results showed a "disparate impact" between firefighters of different races and that the city, in effect, had to show its innocence as the case moved ahead.

It could do that by showing its tests served "a legitimate, non-discriminatory business objective," and that there weren't better alternatives available.

The case affects a lot of firefighters, and a lot of taxpayer money. Justice sued over tests administered since 2004 for the rank of engineer, and in the department's suppression division -- the group that directly fights fires -- for the ranks of lieutenant, captain and district chief.

Out of 404 promotions awarded before the lawsuit was filed, African-Americans had received about 5 percent of the total. Court cases showing different promotion rates have concluded that "disparate impacts" between groups can show discriminatory practices unless there's no good way to avoid those disparities.

A finding that tests were discriminatory could mean some black firefighters are owed not only higher ranks but back pay with interest.

City attorneys have already interviewed other psychologists who challenge findings of the first expert, Kiesha Anthony. The city hired Anthony in 2010 to oversee employee testing, which included analyzing a range of fire department jobs and the combination of abilities and characteristics they require.

Anthony produced a report in February 2012 that Justice attorneys have been trying to get for months. In a deposition in August, Anthony seemed to say her analysis had concluded job knowledge represented 12 percent of the requirements for one of the jobs, but she didn't remember which one.

The full scope of Anthony's findings aren't certain, though, because attorneys built arguments to the judge using fragments of depositions they entered in court filings, and the rest remain unavailable.

To have a report from a former city employee showing the basis for that claim "is of critical importance," a Justice attorney argued in October. That report should have been part of the stack of information federal lawyers requested as early as 2013, Justice added.

City attorneys said they didn't have to release the report because it was produced in connection with a court fight and was exempt from the discovery process, the normal exchange of records in lawsuits. But after both sides took their arguments to court, U.S. Magistrate Monte Richardson said this month the city had misread part of the rules and that it had to hand over the report within 10 days.

The city answered that Richardson misread the rules, filing an objection that said Richardson's order was "clearly erroneous and contrary to law."

U.S. District Judge Timothy Corrigan told city attorneys last week to hand over the report under court seal by next Friday, so he can read it and decide whether it should be released.

Steve Patterson: (904) 359-4263 ___

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