William Howe v. City of Akron
801 F.3d 718
| 6th Cir. | 2015Background
- In 2004 the City of Akron hired E.B. Jacobs LLC to develop/promote written and oral exams for Akron Fire Department promotions to Lieutenant and Captain; scores + seniority (up to 10 points) produced eligibility lists and a Rule-of-Three interview process was used to fill vacancies.
- Plaintiffs (Akron firefighters) sued alleging disparate-impact age claims (ADEA and Ohio law) and Title VII race disparate-impact claims (Lieutenant: adverse impact on African-Americans; Captain: adverse impact on Caucasians). A 2008 jury found disparate impact and that Akron failed business-necessity defense.
- District court entered findings consistent with the jury, issued promotions (after preliminary injunction), and later ordered a new trial solely on damages; post-retrial the district court awarded $616,217.75 in back pay, entered a permanent injunction, and appointed a court monitor.
- Akron appealed liability, back pay, injunction, and monitor; plaintiffs cross-appealed back-pay calculations and sanction/exclusion rulings. This panel consolidated appeals and reviewed prior Sixth Circuit panel decision (Howe I, 723 F.3d 651).
- Court held (1) liability judgment affirmed (applying law-of-the-case from Howe I and finding Akron forfeited additional challenges), (2) back-pay award reversed and remanded for a new trial on back pay (errors re: start dates, failure to include step increases, prejudgment interest, and improper sanctions exclusion), (3) permanent injunction and monitor affirmed but limited to one promotional cycle, and (4) case reassigned to a different district judge for the remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence of disparate impact (liability) | Plaintiffs relied on promotion-rate disparities and four-fifths rule to show adverse impact. | Akron argued four-fifths inappropriate given small sample, pass rates (not promotion rates) should govern, and no "unusual employer" proof for reverse-majority impact. | Liability affirmed; panel applied law-of-the-case from Howe I (plaintiffs may use four-fifths on promotion rates; Akron forfeited/waived challenges raised later). |
| Forfeiture/law-of-the-case—whether issues not raised in Howe I may be relitigated | Plaintiffs: prior panel decision (Howe I) controls; Akron previously had chance. | Akron: Howe I was preliminary-injunction review, so issues may be relitigated on full appeal. | Court treated Howe I as law of the case because it was a fully considered appellate ruling on a developed record; Akron forfeited issues not raised there absent plain error. |
| Back-pay calculation start date & components | Plaintiffs: back pay should run from first promotion using the discriminatory process (May 16, 2005) and include step increases and prejudgment interest. | Akron: back pay should start when list expired; back pay should be reduced for plaintiffs’ lost-chance of promotion. | District court erred: back-pay award vacated. Court held injury accrues when discriminatory practice first used (start dates individualized based on EEOC filings), step increases must be included, prejudgment interest should have been considered; remanded for new trial on back pay (lost-chance theory left for district court to evaluate). |
| Sanctions/exclusion of plaintiffs’ late back-pay computations | Plaintiffs: late disclosure was substantially justified/harmless given discovery confusion, court orders, and city’s role; exclusion was excessive. | Akron: late bait-and-switch prejudiced defense; exclusion appropriate under Rule 37. | Exclusion was abuse of discretion here—the court found the delay largely harmless and partly attributable to scheduling and discovery problems; exclusion vacated for purposes of back-pay retrial. |
| Permanent injunction & court monitor | Plaintiffs: injunction and monitor necessary to remedy lingering, future harms and ensure nondiscriminatory next cycle. | Akron: injunction and monitor are overbroad, indefinite, and infringe on municipal prerogatives. | Permanent injunction and appointment of monitor affirmed, but modified to limit monitor oversight to one promotional cycle; injunction otherwise sufficiently tailored and within equitable powers under Title VII. |
| Reassignment to different judge | Plaintiffs sought reassignment; parties agreed reassignment appropriate. | Akron did not oppose reassignment. | Case reassigned: court found extraordinary delay, strained relations, and risk to appearance of fairness justify reassignment despite complexity. |
Key Cases Cited
- Howe v. City of Akron, 723 F.3d 651 (6th Cir.) (prior panel decision treating four-fifths promotion-rate analysis and likelihood-of-success for injunction)
- Ricci v. DeStefano, 557 U.S. 557 (U.S. 2009) (four-fifths rule can be prima facie evidence of disparate impact)
- Albemarle Paper Co. v. Moody, 422 U.S. 405 (U.S. 1975) (back pay is remedy to make whole victims of employment discrimination)
- Sherley v. Sebelius, 689 F.3d 776 (D.C. Cir.) (law-of-the-case can apply to preliminary-injunction rulings when fully developed record and considered ruling exist)
- City of New York v. United States, 717 F.3d 72 (2d Cir.) (approving broad remedies and court-monitor oversight for discriminatory promotion/exam schemes)
- Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir.) (court bound by jury findings on overlapping claims; guidance on Title VII bench/jury interplay)