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Friday, July 10, 2009

Philadelphia Settled Firefighters' Discrimination Suit

by Jeff Shields, Inquirer Staff Writer

The City of Philadelphia this year quietly paid out $275,000 to settle claims by five white firefighters that they had been discriminated against in the promotion process.

Not only did the city pay five lieutenants between $30,000 and $40,000 each in the January settlement of a 2007 federal civil-rights lawsuit, but the Fire Department also agreed to address the officers' complaints that the promotional exams they took in 2005 were skewed against them in favor of minority candidates.

The settlement suggests that the city gave some credibility to the officers' claims - including one that the city purposely brought in minority officers to administer the tests.

The settlement was marked "confidential," but the city released it to The Inquirer under the state Right to Know Act.

The settlement allowed the city to avoid a lengthy litigation and appeals process such as the City of New Haven, Conn., experienced in a 2004 lawsuit by 20 white firefighters who challenged their city's promotion process. On Monday, the U.S. Supreme Court ruled in their favor.

The Philadelphia case underscores a similar, ongoing racial tension in the department in regard to promotions and how the tests are given and scored.

Fire Commissioner Lloyd Ayers could not be reached for comment. Everett Gillison, the deputy mayor for public safety, said he was not familiar with details of the lawsuit and would not comment until he had reviewed it.

The Philadelphia lieutenants - Francis J. Hannan, Joseph Lee Jr., Gerard Kots, Michael Wellock, and Thomas G. Leonard - sued the city in September 2007, claiming that they had been "systematically or otherwise downgraded" because of their race during the oral portion of the July 2005 fire captain's examination.

None of the five was promoted at the time - Hannan and Lee made captain in subsequent promotion rounds.

In the suit, the men alleged that the "raters" - fire officers from other cities brought in to administer tests, a practice in most departments - were told before the tests that the department "was 'in dire' need of minority and female fire officers," according to the complaint.

Of the 14 raters brought in for the 2005 captains test, 10 were African American, some of them members of the International Association of Black Professional Firefighters, which has advanced the cause of blacks in the firehouses nationally, according to the complaint.

The five white lieutenants lost points for such things as lack of "appropriate eye contact," mistakenly addressing a female rater as "Sir," and for "being too wordy," according to the complaint.

While the city denied in the settlement "that it engaged in any discrimination or retaliation in any manner whatsoever," it agreed to:

Develop written procedures for selecting raters that prohibit an expressed preference for minority raters.

Instruct raters not to consider race or gender and not provide the raters with racial or gender demographics of the department.

Develop guidelines for evaluating communication skills that will be shared with promotion candidates.

Refrain from retaliating against any of the plaintiffs.

The city paid Kots and Leonard $30,000 each; Hannan and Lee $35,000 each; and Wellock $40,000. Their attorneys split a total of $105,000.

Dissent over the testing process - particularly the oral section - is a decades-old problem. The city's promotional process is weighted: 45 percent for a written test, 45 percent for an oral test, and 10 percent for seniority.

At one time, African American firefighters complained that the oral test was a way to keep them from promotions.

Blacks now make up 28 percent of the department, whites 66 percent, and Hispanics 6 percent. Six percent are women.

Today, with a 1985 consent decree in place requiring at least 12 percent of new hires to be African American, and with African Americans in top leadership posts including the commissioner, Ayers, it has been white officers who have railed against the process.

"Commissioner Ayers has systematically demonstrated bias against Caucasian fire fighters and fire officers," attorneys Arthur L. Bugay and Gerald Williams wrote in their complaint for the five officers.

Mayor Nutter's spokesman, Doug Oliver, called that comment "absurd . . . harmful, unfair, and undeserved. Anyone who knows Commissioner Ayers knows that he is a consummate professional and that he executes the responsibilities of his office with integrity."

The controversy over the testing process has produced a sometimes-divided department with groups like Club Valiants Inc., an organization of black firefighters that fought for the consent decree, and the local Concerned American Firefighters Association chapter, which supported the white officers known as the "New Haven 20."

Lt. Kenneth W. Greene Sr., Club Valiants president, said his group had no problem with the promotion-testing system or the role of oral exams.

"I don't see how someone can have a problem trying to explain themselves unless they didn't know what they were talking about," he said. Greene called the 26 percent representation of African Americans in the department "sad."

The International Association of Fire Fighters Local 22, which represents the city's 2,100-plus firefighters, last year asked the city to eliminate the oral portion of the promotional exams.

Bill Gault, who takes over as president of Local 22 today from outgoing president Brian McBride, said yesterday: "There's never going to be people happy with the oral. It's way too subjective."

The city refused to do away with the oral exam, asserting its prerogative to manage the tests as it sees fit.

During arbitration this year, Local 22 proposed that the tests be scored on 50 percent written, 25 percent oral, and 25 percent seniority, said union attorney Rick Poulson.

"We'd like to have some processes in place that allow us to avoid the infighting and find the most qualified candidates to do this important work," Poulson said yesterday. "Every time there's a list that comes out, there's a lawsuit."

The New Haven case, in which that city threw out the results of a 2003 written test when it produced no minority candidates, might cause cities to rely even more on oral exams, said attorney Bugay.

"Cities may try to make examinations entirely oral, and that would be problematic," he said. "Because the written part of the exam is actually the most objective part of the promotional exam process, by definition."

The Supreme Court case may discourage cities "from administering their own ad hoc affirmative-action policies that harm the civil rights of others," Bugay said.

Union lawyer Poulson said New Haven "gives us an excuse to reexamine a promotional process that is broken."


Contact staff writer Jeff Shields at 215-854-4565 or jshields@phillynews.com.

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