Case 1:14-cv-00533-LY Document 1 Filed 06/09/14 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

v.

)

)

THE CITY OF AUSTIN,

)

TEXAS,

)

)

Defendant.

)

Civil Action No.: 1:14cv533

COMPLAINT Plaintiff, United States of America (“United States”), alleges: 1. This action is brought on behalf of the United States to enforce provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as amended (“Title VII”). 2. This Court has jurisdiction of this action under 42 U.S.C. §§ 2000e-5(f) and 2000e-6(b), 28 U.S.C. §§ 1331, 1343 and 1345. 3. Defendant, the City of Austin, Texas (“City” or “Defendant”), is a governmental body created pursuant to the laws of the State of Texas and located within this judicial district. 4. The City is a “person,” within the meaning of 42 U.S.C. § 2000e(a), and an “employer,” within the meaning of 42 U.S.C. § 2000e(b). 5. The City maintains a fire department, the Austin Fire Department (“AFD”), and employs entry-level firefighters. 6. Subject to the requirements of Texas Local Government Code Chapter 143, the City is responsible for establishing the terms, conditions and other practices that relate to the selection and employment of entry-level firefighters.

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7. During most of the relevant time period, the City has been exempt from certain requirements of Texas Local Government Code Chapter 143 because, as permitted by that statute, it entered into a collective bargaining agreement (“CBA”) with the union that represents its sworn personnel.
8. The most recent CBA between the City and the Austin firefighters’ union allowed the City to use a different hiring process for entry-level firefighters than the one set forth in Chapter 143. The CBA expired on October 1st, 2014.
9. Since at least 2011, the City has administered, and continues to administer, at least one written examination as part of its entry-level firefighter selection process.
10. Entry-level firefighter applicants who met the minimum qualifications set by the City in each particular hiring cycle were invited to take the written examination(s).
2012 Entry-Level Firefighter Selection Process 11. In May 2012, the City administered a written examination that purports to measure cognitive abilities and behavioral traits (“NFSI”) to approximately 2,600 applicants as part of the entry-level firefighter selection process. 12. On the same day, the City also administered a second written test that purports to measure counterproductive work behaviors (“Integrity Inventory”). 13. The City set the nominal passing score for the NFSI at a raw score of 70. Applicants who did not achieve a raw score of 70 on the NFSI were eliminated from consideration to be an Austin entry-level firefighter. 14. This resulted in a statistically significant disparity between the pass rates of African-American candidates and white candidates equal to 9.10 units of standard deviation, and
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a statistically significant disparity between the pass rates of Hispanic candidates and white candidates equal to 7.77 units of standard deviation.
15. In addition, in 2012, the City invited only the applicants with 1,500 highest NFSI scores who also passed the Integrity Inventory to participate in the next step of the selection process, a Structured Oral Interview (“SOI”). As a result, many candidates who achieved a raw score of 70 on the NFSI and passed the Integrity Inventory were nevertheless eliminated from the selection process.
16. Due to the City’s decision to only invite the top 1,500 NFSI scorers who also passed the Integrity Inventory to participate in the SOI, no applicant who scored below 75.06 on the NFSI was permitted to proceed to the SOI. This resulted in an effective NFSI cutoff score of 75.06.
17. The use of the NFSI as a pass/fail device with an effective cutoff score of 75.06 to screen applicants for entry-level firefighter hiring has caused a statistically significant adverse impact upon African-American and Hispanic applicants.
18. Using an effective cutoff score of 75.06 resulted in a statistically significant disparity between the pass rates of African-American candidates and white candidates equal to 9.72 units of standard deviation, and a statistically significant disparity between the pass rates of Hispanic candidates and white candidates equal to 8.75 units of standard deviation.
19. Specifically, approximately 80% of whites who took the NFSI achieved a score of at least 75.06 on the NFSI, while only approximately 48.8% of African-American test-takers and 59.4% of Hispanic test-takers achieved a score of at least 75.06.
20. The difference in the effective NFSI pass rates of African-American applicants compared to white applicants is statistically significant.
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21. The difference in the effective NFSI pass rates of Hispanic applicants compared to white applicants is statistically significant.
22. The City cannot demonstrate that either its pass/fail use of the NFSI with a nominal cutoff score of 70 or its use of an effective cutoff score of 75.06 as described in Paragraphs 13, 15 and 16 is job related for the position in question and consistent with business necessity.
23. In 2012, the City also used the applicants’ scores on the NFSI as part of a composite score generated for applicants who were invited to, completed and passed the SOI.
24. The City calculated an applicant’s composite score by weighting and combining the applicant’s NFSI and SOI scores. The NFSI score accounted for one-third of the composite score, and the SOI accounted for two-thirds of the composite score.
25. Where applicable, the City added military points to the composite score to generate a total score for each applicant. For applicants who did not have military points, the composite score and total score were the same.
26. The City placed applicants on an initial eligibility list in descending rank order based on total scores, and processed applicants through the remaining steps in the selection process based on their places on the list (“2012 rank order practice”).
27. Because the City processed applicants for hiring in descending rank order from the list, many applicants who effectively passed the NFSI (i.e., scored 75.06 or above) and passed the Integrity Inventory and passed the SOI did not rank high enough to be processed for hire.
28. The 2012 rank order practice described in Paragraphs 23 through 27 has had a statistically significant adverse impact on African-American entry-level firefighter applicants.
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29. The 2012 rank order practice described in Paragraphs 23 through 27 has had an statistically significant adverse impact on Hispanic entry-level firefighter applicants.
30. Specifically, African-American and Hispanic applicants ranked lower, on average, on the initial eligibility list than white applicants.
31. The difference in ranks of African-American applicants compared to white applicants is statistically significant.
32. The difference in ranks of Hispanic applicants compared to white applicants is statistically significant.
33. Additionally, the mean composite scores of African-American and Hispanic applicants on the initial eligibility list are lower than the mean scores of white applicants.
34. The difference in mean scores of African-American applicants compared to white applicants is statistically significant.
35. The difference in mean scores of Hispanic applicants compared to white applicants is statistically significant.
36. The City cannot demonstrate that the 2012 rank order practice described in Paragraphs 23 to 27 is job related for the position in question and consistent with business necessity.
2013 Selection Process 37. In 2013, the City used a different set of selection devices to screen entry-level firefighter applicants. 38. The selection devices included a written test (“NELF”), different from the NFSI, that purported to measure cognitive abilities and behavioral traits, administered to more than 2,800 applicants in May 2013.
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39. The City invited all entry-level firefighter applicants who took the NELF to participate in the next step of the selection process, which was the administration of a different SOI. Approximately 2,000 applicants who had taken the NELF participated in the 2013 SOI.
40. The City announced its intention to calculate composite scores for 2013 entrylevel firefighter applicants by converting the raw NELF score to a 20-point scale and the raw SOI score to an 80-point scale, adding those two scores together, then adding military points where applicable to arrive at a total score.
41. The City later determined it would not score or otherwise take into account an applicant’s responses to the “behavioral trait” items of the NELF.
42. The City planned to place 2013 entry-level firefighter applicants on an initial eligibility list in descending rank order based on total scores, and to process applicants through the remaining steps in the hiring process in descending rank order (“2013 rank order practice”).
43. The 2013 rank order practice described in Paragraphs 40 to 42 will result in statistically significant adverse impact on African-American and Hispanic applicants.
44. The City cannot demonstrate that the 2013 rank order practice described in Paragraphs 40 through 42 is job related for the position in question and consistent with business necessity.
45. Even if the City could demonstrate that its method of use for the 2013 assessments was job related for the position in question and consistent with business necessity, there exists another method of use for those assessments that would be equally valid but would result in less adverse impact against protected groups.
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The United States’ Pattern or Practice Claim Pursuant to Section 707 of Title VII 46. Plaintiff United States re-alleges Paragraphs 1 through 45, supra, as if fully set forth herein. 47. Defendant has pursued and continues to pursue policies and practices that discriminate against African Americans and Hispanics and that deprive or tend to deprive African Americans and Hispanics of employment opportunities because of their race and/or national origin, in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. Defendant has implemented these policies and practices, among other ways, by: a. Using, in the screening and selection of applicants for appointment to the rank of entry-level firefighter, a written examination as a pass/fail screening device, where such use of the written examination resulted in statistically significant disparate impact upon African Americans and Hispanics, and was not job related for the position in question and consistent with business necessity; b. Rank-order processing, in the screening and selection of applicants for appointment to the rank of entry-level firefighter, which results in statistically significant disparate impact upon African Americans and Hispanics, in a manner not job related for the position in question and not consistent with business necessity; c. Failing or refusing to take appropriate action to correct the present effects of its discriminatory policies and practices; d. Failing or refusing to make whole those African-American and Hispanic applicants for appointment to the rank of entry-level firefighter who have been harmed by the unlawful use of a cut-off score on the 2012 written examination as described in Paragraphs 13, 15 and 16; and
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e. Failing or refusing to make whole those African-American and Hispanic applicants for appointment to the rank of entry-level firefighter who have been harmed by the unlawful 2012 rank order practice described in Paragraphs 23 through 27. 48. In accordance with Section 707 of Title VII, 42 U.S.C. § 2000e-6, the United States, through the Department of Justice, has conducted an investigation of the policies and practices of Defendant City of Austin with respect to its screening and selection of applicants for appointment to the rank of entry-level firefighter as such practices affect African Americans and Hispanics and has notified Defendant City of Austin of that investigation. 49. The policies and practices of Defendant City of Austin described in Paragraphs 1 through 45, supra, constitute a pattern or practice of resistance to the full enjoyment by African Americans and Hispanics of their right to equal employment opportunities without discrimination based upon race and/or national origin, in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. Unless restrained by order of this Court, the City will continue to pursue policies and practices that are the same as or similar to those alleged in this Complaint. 50. Wherefore, Plaintiff United States prays for an order enjoining Defendant City of Austin, its officers, agents, employees, successors and all persons in active concert or participation with them from engaging in discriminatory employment practices against African Americans on the basis of race and against Hispanics on the basis of national origin, and specifically from:
a. Using, in the screening and selection of applicants for appointment to the rank of entry-level firefighter, written examinations as pass/fail screening devices, where such use of the written examinations results in statistically significant disparate impact upon African Americans and Hispanics, is not job related for the
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position in question and consistent with business necessity and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k); b. Rank-order processing of applicants, in the screening and selection of applicants for appointment to the rank of entry-level firefighter, based on the applicants’ written examination scores combined with scores on other selection devices, plus military points, where such use of applicants’ total scores results in statistically significant disparate impact upon African Americans and Hispanics, is not job related for the position in question and consistent with business necessity and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k); c. Failing or refusing to take appropriate action to correct the present effects of its discriminatory policies and practices; d. Failing or refusing to make whole those African-American and Hispanic applicants for appointment to the rank of entry-level firefighter who have been harmed by its unlawful use of a cut-off score on its written examinations as described in Paragraphs 13, 15 and 16; and e. Failing or refusing to make whole those African-American and Hispanic applicants for appointment to the rank of entry-level firefighter who have been harmed by its unlawful use of the rank order practice described in Paragraphs 23 through 27. 51. Plaintiff United States prays for an order requiring the City to provide sufficient remedial relief, including back pay with interest and priority hiring with retroactive seniority, to
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 Case 1:14-cv-00533-LY Document 38 Filed 09/15/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FiLED

FOR THE AUSTIN VlTvTjTION

UNITED STATES OFAMERCAI:

§

SEP I5 4fl 10:21

0Rc CLERK
WESTERN

C1TCT cou

or TEA$

V

CAUSE NO. A-14-CV-533-LY

CITY OF AUSTIN, TEXAS,
§
ORDER Before the court are the Motion to Intervene by International Association of Fire Fighters, Local 975; Andrews Arreola; Andrew Blair; Caroline Bull; John Edmiston; Daniel Hatcherson; Steven Herrera; William Kana; Matthew Martin; Matthew Rettig; and Meagan Stewart (collectively referred to as "Austin Firefighters Association" or "AFA") filed June 13, 2014 (Doc. #16); United States' Memorandum in Opposition to Motion to Intervene filed June 24, 2014 (Doc. #24); Defendant City of Austin's Memorandum Opposing Motion to Intervene filed June 27, 2014 (Doc. #27); Intervenors' Reply in Support of Motion to Intervene filed July 11, 2014 (Doc. #3 1); United States Surreply Regarding Motion to Intervene filed July 23, 2014 (Doc. #36); and Defendant City of Austin's Sur-Reply Opposing Motion to Intervene filed July 23, 2014 (Doc. #37). Having considered the motion, response, replies, applicable law, and the record in this cause, the court determines that the AFA's Motion to Intervene should be denied for the reasons to follow. In 2009, the AFA entered into a collective-bargaining agreement (the "Agreement") with Defendant City of Austin (the "City"). On October 1, 2013, the Agreement expired without an applicable automatic continuation provision or continued agreement. In late September 2013, Plaintiff United States of America ("United States") concluded that the City had violated Title VII

Case 1:14-cv-00533-LY Document 38 Filed 09/15/14 Page 2 of 5
of the Civil Rights Act of 1964 ("Title VII"). Soon afterwards, the United States and the City
commenced settlement discussions.
In early June 2014, the United States and the City executed a Consent Decree that, if
approved by the court, will resolve the United States' allegations against the City. On June 9, 2014, the United States filed its complaint in this court, and the parties jointly moved for provisional approval of the Consent Decree and for a fairness hearing on its terms. The court granted the joint motion on June 11, 2014 (Doc. #9). On June 13, 2014, the AFA filed the motion to intervene now pending before the court.
Rule 24 of the Federal Rules of Civil Procedure allows a party to intervene as a matter of right or by permission of the court in certain circumstances. See FED. R. Civ. P. 24. The AFA claims
the right to intervene under Rule 24(a)(2), which requires a movant to establish "an interest relating
to the property or transaction that is the subject of the action." In the alternative, the AFA requests permissive intervention under Rule 24(b)(1)(B), which allows intervention if the movant "has a claims or defense that shares with the main action a common question of law or fact." "Permissive
intervention is wholly discretionary with the [district] court, even though there is a common question
of law or fact, or the requirements of Rule 24(b) are otherwise satisfied." New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 471 (5th Cir. 1984) (citations omitted).
The four-part test for determining intervention as a right are: (1) timeliness, (2) an interest relating to the action, (3) that the interest would be impaired or impeded by the case, and (4) that the interest is not adequately represented by existing parties. See Sierra Club v. Espy, 18 F.3d 1202, 1204-5 (5th Cir. 1994). To support intervention as of right, the AFA must show that it has "a direct, substantial, legally protectable interest in the action, meaning 'that the interest be one which the
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substantive law recognizes as belonging to or being owned by the applicant'." Cajun Elect. Power Coop. v. GulfStates Utils., Inc., 940 F.2d 117, 119(5th Cir. 1991) (quotingNew Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir. 1984)) (emphasis added)). Even with the requisite interest, however, a movant has no right to intervene if: (1) denying intervention would not "as a practical matter impair or impede the movant's ability to protect its interest," or (2) any of the "existing parties adequately represent that interest." FED. R. Civ. P. 24(a)(2).
The AFA asserts the following interests for purposes of Rule 24(a)(2): (1) contractual rights regarding entry-level hiring under the Agreement; (2) the individual movants' contractual seniority
rights under the Agreement; (3) the state-law right to collectively bargain; (4) the asserted preclusive effect of this case on a potential suit by the United States Equal Employment Opportunity
Commission ("EEOC") against the AFA; (5) the safety of incumbent firefighters working for the Austin Fire Department; and (6) the alleged impact of retroactive seniority on incumbents'
promotion potential under Civil Service Law. In response, the United States and the City argue that the AFA has no interest within the
meaning of Rule 24(a)(2). Moreover, they argue, other avenues exist for raising the concerns identified by the AFA: (1) the AFA can address such matters directly with the City through negotiations for a succeeding collective-bargaining agreement and (2) the AFA can present its concerns regarding the Consent Decree to the parties and the court through the objection and fairness-hearing process before this court. The court agrees.
The AFA's alleged interests are based on an expired collective-bargaining agreement. The case law upon which the AFA relies involves collective-bargaining agreements currently in effect. The AFA offers no authority justifying intervention on the basis of a consent decree that conflicts
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with an expired collective-bargaining agreement. The Fifth Circuit has held that if no such agreement is in effect, there is insufficient legal interest for intervention under Rule 24(a). See
Stallworth v. Monsanto Co., 558 F.2d 257, 269 (5th Cir. 1977).
Even if the Agreement in this case were still in effect, the court finds that the AFA has failed
to show how the Consent Decree violates its terms. The Agreement permitted the City to make
hiring changes ifthe hiring process outcome was found to be unlawful under Title VII. In addition, the Consent Decree does not alter, eliminate, or even address the terms or conditions of employment of any incumbent Austin firefighter; nor does it affect any statutory seniority provisions. Indeed, nothing in the Consent Decree precludes the AFA from being involved in the development of future
entry-level hiring processes; it simply requires that any hiring process the City uses comply with Title VII and gives the United States the ability to review proposed hiring schemes to ensure
compliance. With regard to the AFA's claim that this court's approval of the Consent Decree may
have a preclusive effect on future litigation brought by the EEOC against the AFA, the AFA provides the court with no authority to support its claim that the Consent Decree may have any adverse effect on nonparties to this case. Therefore, the AFA's speculative interests in safety, seniority, and
promotion standards, as well as the AFA's fear of the preclusive effect on future litigation, are
insufficient to establish a direct and substantial interest required for intervention under Rule 24. See Texas v. Dep 't ofEnergy, 754 F.2d 550, 552 (5th Cir. 1985).
For the same reasons the court finds intervention of right inappropriate, and weighing the undue delay and prejudice that would result form allowing the AFA's intervention in this cause, the court concludes that the AFA' s alternative request for permissive intervention should be denied.

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Any concerns the AFA desires to raise may appropriately be addressed through collective bargaining

with the City and the Consent Decree's objection and fairness-hearing process.

IT IS THEREFORE ORDERED that the Motion to Intervene by International Association

of Fire Fighters, Local 975; Andrews Arreola; Andrew Blair; Caroline Bull; John Edmiston; Daniel

Hatcherson; Steven Herrera; William Kana; Matthew Martin; Matthew Rettig; and Meagan Stewart

filed June 13, 2014 (Doc. #16) is DENIED.

SIGNED this

day of September, 2014.

UN TED STATES DISTRICT JUDGE

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 Case 1:14-cv-00533-LY Document 5 Filed 06/09/14 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

v.

)

)

THE CITY OF AUSTIN,

)

TEXAS,

)

)

Defendant.

)

Civil Action No.: 1:14cv533

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF UNITED STATES’ AND DEFENDANT CITY OF AUSTIN’S JOINT MOTION FOR PROVISIONAL ENTRY OF
CONSENT DECREE AND SCHEDULING OF FAIRNESS HEARING

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TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................ 1 II. PROCEDURAL BACKGROUND....................................................................................... 2 III. FACTUAL BACKGROUND ............................................................................................... 3
A. 2012 Selection Process ................................................................................................. 4 1. Disparate Impact.................................................................................................. 5 2. Validity ................................................................................................................ 5
B. 2013 Selection Process ................................................................................................. 6 C. Overview of the Consent Decree .................................................................................. 8
1. Injunctive Relief .................................................................................................. 8 2. Back Pay .............................................................................................................. 8 3. Priority Appointments with Retroactive Seniority .............................................. 9 4. Fairness Hearings, Objections, and Individual Relief Claims Process ............. 10 5. Continuing Jurisdiction and Duration of the Decree ......................................... 11 IV. ARGUMENT ...................................................................................................................... 11 A. Standard of Review .................................................................................................... 11 B. In Light of the Parker Factors, the Decree Is Lawful, Reasonable and Equitable ..... 13 1. The Decree Is the Product of Arms’ Length Bargaining................................... 13 2. Substantial Pre-Suit Investigation Supports the Conclusion that the United
States Has a Strong Case on the Merits ............................................................. 14 3. The Relief in the Consent Decree Falls Well Within the Range of Remedies
the United States Could Recover if it Prevailed Under Title VII ...................... 20 4. The Respective Opinions of Counsel, the Claimants, and Others Whose
Interests May Be Impacted Will Be Considered ............................................... 25 5. The Complexity, Expense, and Anticipated Duration of Litigation Weigh
in Favor of Settlement ....................................................................................... 28 C. The Proposed Consent Decree Is Consistent with the Standard Laid Out in Ricci v. DeStefano .............................................................................................................................29 D. The Parties Have Consulted with the Austin Firefighters’ Association and Modified the Proposed Decree Based on the Union’s Input ............................................... 30 V. CONCLUSION ...................................................................................................................34
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Cases

TABLE OF AUTHORITIES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)................................................ 16, 18, 20, 21 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ............................................................... 12 Ayers v. Thompson, 358 F.3d 356 (5th Cir. 2004) ........................................................................ 28 Bazile v. City of Houston, Civil Action No. H-08-2404, 2012 WL 573633 (S.D. Tex. Feb. 6,
2012) ......................................................................................................................................... 16 Bernard v. Gulf Oil Corp., 841 F.2d 547 (5th Cir. 1988) ............................................................. 18 Bockman v. Lucky Stores, Inc., No. CIV S 83-039 RAR, 1986 WL 10821 (E.D. Cal. Aug. 11,
1986) ......................................................................................................................................... 24 Booker v. Taylor Milk Co., 64 F.3d 860 (3d Cir. 1995)................................................................ 20 Carson v. Am. Brands, Inc., 450 U.S. 79 (1981) .......................................................................... 12 Dean v. City of Shreveport, 438 F.3d 448 (5th Cir. 2006)............................................................ 12 DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007) .................................................... 14 Dothard v. Rawlinson, 433 U.S. 321 (1977)................................................................................. 16 E.E.O.C. v. Johnson & Higgins, Inc., No. 93 CIV 5481 LBS, 1999 WL 544721 (S.D.N.Y. Jul.
26, 1999) .................................................................................................................................... 12 Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) ............................................................ 28 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976)............................................................ 20, 23 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ......................................................................... 15 Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) ....................................................... 16 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977)..................................................... 24 Lelsz v. Kavanagh, 783 F. Supp. 286 (N.D. Tex. 1991) ............................................................... 26 McClain v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008) ...................................................... 16 Moore v. City of San Jose, 615 F.2d 1265 (9th Cir. 1980) ........................................................... 23 Neff v. VIA Metro. Transit Auth., 179 F.R.D. 185 (W.D. Tex. 1998)........................................... 25 Parker v. Anderson, 667 F.2d 1204 (Former 5th Cir. 1982) ........................................................ 13 Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ............................................... 22 Ricci v. DeStefano, 557 U.S. 557 (2009) ...................................................................................... 29 Ruiz v. McKaskle, 724 F.2d 1149 (5th Cir. 1984)......................................................................... 13 Salinas v. Roadway Express, Inc., 802 F.2d 787 (5th Cir. 1986) ........................................... 12, 13 San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 433 (W.D.
Tex. 1999)...................................................................................................................... 13, 14, 28 Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984)........................................................................... 22 United States & Corpus Christi Police Officers’ Ass’n. v. City of Corpus Christi, Tex., 2:12-cv-
00217 (S.D. Tex. May 16, 2013) ............................................................................................... 21 United States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980)............................................. 12 United States v. City of Miami (“City of Miami I”), 614 F.2d 1322 (5th Cir. 1980) .................... 12 United States v. City of Miami (“City of Miami II”), 664 F.2d 435 (5th Cir. 1981) ............... 11, 30 United States v. City of Miami, 195 F.3d 1292 (11th Cir. 1999) .................................................. 22 United States v. City of Portsmouth, Va., 2:09-cv-00133-MSD-FBS (E.D. Va. Jul. 23, 2009) ... 21 United States v. New Jersey, Civ. No. 10-91 (KSH)(MAS), 2012 WL 3265905 (D.N.J. Jun. 12,
2012) ......................................................................................................................................... 21 United States v. New Jersey, No. CIV. 88-5087 WGB, CIV. 88-4080(MTB), CIV. 87-
2331(HAA), 1995 WL 1943013 (D.N.J. Mar. 14, 1995) .............................................. 21, 23, 28

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Vulcan Pioneers, Inc. v. New Jersey Dep’t of Civil Serv., 832 F.2d 811 (3d Cir. 1987).............. 24 Waisome v. Port Auth. of N.Y. and N.J., 948 F.2d 1370 (2d Cir. 1991) ....................................... 16 Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976) ......................................................... 16 Williams v. City of New Orleans, 694 F.2d 987 (5th Cir. 1983)................................................... 12 Zuniga v. Kleberg Cnty. Hosp., Kingsville, Tex., 692 F.2d 986 (5th Cir. 1982) .......................... 16 Statutes 42 U.S.C. § 2000e et seq. ................................................................................................................1 42 U.S.C. § 2000e-2(a) ................................................................................................................... 2 42 U.S.C. § 2000e-2(k)(1)(A)(i) ............................................................................................. 16, 17 42 U.S.C. § 2000e-2(k)(1)(A)(ii) .................................................................................................. 16 42 U.S.C. § 2000e-2(n)(1) ................................................................................................ 26, 27, 28 42 U.S.C. § 2000e-5(g) ................................................................................................................. 20 42 U.S.C. § 2000e-6........................................................................................................................ 2 Vernon’s Tex. Civ. Stat. Art. 6243e.1 .......................................................................................... 31 Regulations 29 C.F.R. § 1607.4(C)................................................................................................................... 18
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I. INTRODUCTION Plaintiff United States of America (“United States”) and Defendant City of Austin, Texas
(“City”) (collectively, the “Parties”) submit this memorandum in support of their Joint Motion for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing (“Motion”). The Parties request that the Court provisionally enter the proposed Consent Decree (the “Decree”) that is attached as Exhibit 1 and schedule an initial fairness hearing as soon as possible within the limitations set by Paragraph III.D.1 of the Decree. The initial fairness hearing will allow the Court to consider any objections to the terms of the Decree prior to final approval and entry.1
As set forth below, the Court should provisionally enter the Decree because its terms are lawful, reasonable and equitable. The terms of the Decree fulfill the goals of: (1) resolving all legal and factual issues in dispute between the Parties; (2) ensuring that employment practices used by the City to hire entry-level firefighters comply with Title VII of the Civil Rights Act of 1964 , as amended (“Title VII”), 42 U.S.C. § 2000e et seq. (3) establishing a new, lawful selection procedure for selecting entry-level firefighters that is based upon merit and does not unnecessarily exclude qualified African-American and Hispanic candidates; and (4) providing appropriate individual relief in the form of back pay and/or priority appointments with retroactive seniority to qualified firefighter candidates who were eliminated from the City’s entry-level firefighter selection process because of the employment practices challenged by the United States in this case.
1 After all objections are received as to the terms of the Decree, the Parties will file another brief before the fairness hearing addressing those objections and requesting final approval and entry of the Decree.
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II. PROCEDURAL BACKGROUND On June 9, 2014, pursuant to Section 707 of Title VII, 42 U.S.C. § 2000e-6, the United
States commenced this action against the City to enforce Title VII. The United States’ Complaint alleges that the City has engaged in unlawful employment practices by utilizing selection procedures that have the effect of depriving or tending to deprive African Americans and Hispanics of employment opportunities because of their race and/or national origin, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). Specifically, the United States alleges that the City’s (1) pass/fail use of the 2012 cognitive behavioral exam (“NFSI”) and (2) certification of applicants in descending rank order based on a combination of applicants’ written exam scores, structured oral interview scores, and military points have resulted in a disparate impact upon African-American and Hispanic applicants for entry-level firefighter positions and are not job related and consistent with business necessity.2 The United States also alleges that the 2013 hiring process, though based on different selection devices, would violate Title VII if continued as planned, and thus ongoing injunctive relief is warranted.
The City does not concede the allegations of unlawful employment practices as alleged in the Complaint. Nonetheless, the City is agreeable to the terms of the Decree because those terms will allow the City to address its serious, longstanding need to hire additional qualified firefighters by completing its most recent fire cadet hiring process, which was started in 2013 but which the City suspended after the United States began to investigate that hiring process. The City is also agreeable to the terms of the Decree because the Decree will resolve claims that could be asserted against the City concerning the outcome of its 2012 firefighter hiring process, and will avoid the costs and uncertainties of contested litigation.
2 The United States’ Complaint in this action does not include any allegation of intentional discrimination.
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The Parties have voluntarily engaged in a significant amount of pre-suit discovery. The City and its experts (at its request) have voluntarily provided extensive information during the United States’ pre-suit investigation3 relating to the issues of disparate impact and validity, and the United States engaged an expert in industrial/organizational psychology and an expert in statistics to analyze validity and disparate impact issues, respectively. The United States, with the City’s cooperation, also provided extensive information to the Austin Firefighters’ Association (“the AFA” or the “union”), the union that most recently had a collective bargaining agreement with the City regarding its firefighters.4
As a result of ongoing settlement discussions over a period of several months, the United States and the City have negotiated and executed the attached Decree, which is the subject of this Memorandum. See Exhibit 1. III. FACTUAL BACKGROUND
For purposes of seeking provisional and final entry of the Decree, the United States contends, and the City does not dispute (except as expressly set out in any Answer it files in this case), the following factual statements.
3 By letter dated April 22, 2013, the United States notified the City that it would be investigating whether the City had engaged in a pattern or practice of discrimination against African Americans and Hispanics. The United States then conducted an in-depth investigation involving document review, data analysis, and consultation with an expert. In addition, the United States Equal Employment Opportunity Commission (“EEOC”) conducted its own investigation of the City in response to a Charge of Discrimination filed by an unsuccessful 2012 applicant for an Austin entry-level firefighter position, and transmitted the information it gathered during that investigation to the United States Department of Justice pursuant to Section 706 of Title VII. Since that time, the individual charge has been resolved privately. 4 The AFA and the City have not had an operative collective bargaining agreement since the October 1, 2013 expiration of their last labor agreement.
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A. 2012 Selection Process In 2012, the City used a process to screen and select applicants for the position of fire cadet, which is the entry-level position in the Austin Fire Department. In that selection process, applicants who met the minimum qualifications set by the City were given two written examinations: one intended to test cognitive and non-cognitive skills and abilities (hereinafter, “NFSI”) and another intended to test counterproductive work behaviors (“Integrity Inventory” or “I2”). The NFSI was administered on a pass/fail basis, with a nominal cut-off score of 70 on the examination. However, the City invited only the top 1,500 scorers on the NFSI who also passed the Integrity Inventory to proceed to the next step – a structured oral interview (“SOI”) – which resulted in an “effective” passing score of 75.06 on the NFSI.5 Those who passed both written exams and the SOI were given composite scores made up of 2/3 SOI score and 1/3 NFSI score. The City then added military points where applicable to arrive at final scores and placed applicants in descending rank order on a preliminary eligibility list based on these scores. The top group of candidates on the preliminary eligibility list were then given an additional battery of final pre-employment assessments, including a physical ability test, drug screen, background check, and others. Those candidates who successfully passed these final pre-employment assessments were placed in descending rank order on a final eligibility list based on their test scores computed as described above.
5 Although the passing score for the 2012 NFSI was 70, the City made a decision for reasons of administrative efficiency to interview only those Integrity Inventory passers who also were among the top 1,500 NFSI scorers. This meant that those who scored lower than a 75.06 but above a 70 were eliminated from the hiring process. Thus, the effective NFSI passing score was a 75.06.
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1. Disparate Impact The City administered the written tests in 2012 to approximately 1,114 white candidates, 328 African-American candidates, and 902 Hispanic candidates. See Declaration of Bernard Siskin (“Siskin Decl.”), attached as Exhibit 2, ¶ 2. African-American and Hispanic candidates obtained scores above the “effective” passing score on the NFSI at statistically significantly lower rates than white candidates. The disparity in pass rates between African-American and white candidates equates to 9.72 units of standard deviation. Id. at ¶ 5. The disparity in effective pass rates between Hispanic and white candidates equates to 8.75 units of standard deviation. Id. at ¶ 5. In addition, the City’s determination and use of final scores to certify candidates in descending rank order also separately resulted in statistically significant disparate impact upon African Americans and Hispanics. African Americans and Hispanics who passed the NFSI received statistically significantly lower ranks on eligibility lists than whites: the likelihood that an African-American candidate would be ranked high enough to be considered for appointment, as compared to a white candidate, equates to 5.05 units of standard deviation, and the likelihood that a Hispanic candidate would be ranked high enough to be considered for appointment, as compared to a white candidate, equates to 4.96 units of standard deviation. Siskin Decl. ¶ 6. In practical terms, absent the disparate impact resulting from the pass/fail and rank-order use of the NFSI, an estimated additional 12 African Americans and 18 Hispanics would have been hired as entry-level fire cadets in Austin. Id. at ¶ 8.
2. Validity According to the United States’ expert industrial/organizational psychologist, David P. Jones, Ph.D., the City’s decision to use a cut-off score of 75.06 on the NFSI and its decision then to use descending rank order to select applicants from eligibility lists have not been
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demonstrated, using professionally accepted validation standards, to be sufficiently job-related or consistent with business necessity to comply with Title VII. See Declaration of David P. Jones, Ph.D. (“Jones Decl.”), attached as Exhibit 3, at ¶¶ 48 and 53. Dr. Jones found that when the test developer conducted a local criterion related validity study of the NFSI in Austin, it found no meaningful relationship between NFSI scores and the job performance of incumbent Austin firefighters. Id. at ¶ 33. He also found that the NFSI was designed and previously criterionvalidated as a two-and-a-half hour examination, but the City inadvertently erred in its administration of the test by reducing the time limit to two hours. Id. at ¶ 42. This changed the examination from the format under which it was validated; therefore, there is insufficient evidence of criterion-related validity for the City’s use of the NFSI. Id. at ¶ 43.
Also, according to Dr. Jones, the City’s pass/fail use of the NFSI with an effective cut-off score of 75.06 did not distinguish meaningfully among those candidates who can better perform the job of entry-level firefighter because the City, through the test developer, did not utilize a professionally appropriate method in establishing it. Jones Decl. at ¶¶ 44-48. Rather, the test developer validated a qualifying score of 57.75 as an appropriate pass/fail standard, and not the City’s nominal cut-off score of 70 or the effective cut-off score of 75.06. Id. at ¶¶ 45-48. Thus, the United States contends that the City cannot meet its burden of demonstrating that the 2012 selection process met Title VII’s requirements.
B. 2013 Selection Process The 2013 selection process, underway when the United States commenced its investigation in April of that year, was similarly problematic under Title VII. In 2013, the City used a new test developer and administered a different cognitive-behavioral test known as the NELF, along with a structured oral interview (“SOI”). Jones Decl. ¶ 54. These selection
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devices, in combination with their planned method of use, resulted in statistically significant disparate impact against both African Americans and Hispanics based on the rank-order list that the City planned to use. Siskin Decl. ¶ 9.
As with the 2012 selection devices, Dr. Jones analyzed the available validity information. Jones Decl. ¶¶ 59-63. He initially found that the 2013 process was not supported by the test developer’s validation study and that the steps followed in an attempt to transport validation evidence from another jurisdiction did not meet professionally acceptable standards for validity transportability. Id. at ¶¶ 63-67. Specifically, Dr. Jones concluded that the validation study used both the cognitive and behavioral items of the NELF, whereas the City had scored only the cognitive test items,6 thus invalidating the test developer’s claim of transportability. Id. at ¶ 63. Dr. Jones also noted that the 2013 test developer did not perform an analysis of selection procedure fairness in its validity study, id. at ¶¶ 65 and 66. He further determined there was nothing to show that the 2013 SOI questions were the same as those in the transported validation study that the 2013 test developer was using to support the validity of the SOI for the Austin Fire Department. Id. at ¶ 68. Further, because the test developer discarded the scoring sheets utilized by raters of the SOI in Austin, Dr. Jones was unable to analyze the criterion-related validity or fairness of that component of the process. Id. at ¶¶ 69-71. Taking into account these substantial limitations, Dr. Jones nonetheless conducted his own criterion-related validity analysis of the underlying data produced by the test developer and was able to find some evidence of validity. Id. at ¶¶ 73-76.
6 The City and the 2013 test developer did consider alternative uses of the behavioral part of the NELF test, but never settled on a specific method for using it before the City suspended the 2013 hiring process due to the United States’ investigation. Thus, only the cognitive scores from the NELF test have been used for this analysis.
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Most importantly, however, in examining the underlying validity data the test developer provided, Dr. Jones found that the 2013 selection devices had an equally valid alternative use that would have resulted in less adverse impact while retaining the same validity. Id. at ¶¶ 7782; see also Siskin Decl. at ¶ 10. Specifically, retaining two of the five cognitive subtests on the NELF predicted job performance substantially as well as retaining all five subtests and with less adverse impact. Jones Decl. ¶¶ 78 and 82; Siskin Decl. ¶ 10.
C. Overview of the Consent Decree 1. Injunctive Relief
Under the Decree’s terms, the City, with review by the United States, will develop and administer a new, lawful procedure for selecting qualified applicants for entry-level firefighter positions. Decree at III.C.6. The Parties have agreed that the City may use the scores from the cognitive portion of the 2013 NELF test, and the 2013 SOI scores, weighted in the same manner as the original design of that hiring process (i.e., 80% weighting to the SOI, 20% weighting to the cognitive score) to establish a list from which it may, but is not required to, fulfill exigent hiring needs by hiring up to 90 entry-level fire cadets. Decree at App. B, ¶ 6. However, in light of the validity concerns raised with the 2013 selection procedures set forth above, once up to 90 cadets have been selected, or the City has designated an eligibility list using the new, lawful procedure developed under ¶ III.C.6 of the Decree, whichever occurs first, the City may no longer hire fire cadets using the 2013 test scores. Decree at App. B, ¶6.
2. Back Pay Under the terms of the Decree, the City will pay $780,000 (gross) in back pay. An individual is eligible for back pay if he or she is African American or Hispanic, applied to be an entry-level fire cadet in Austin in 2012, was not hired, and either: (i) took and failed (with a
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score of less than 70) the 2012 NFSI but passed the Integrity Inventory; (ii) effectively failed the 2012 NFSI (with a score of less than 75.06) but passed the Integrity Inventory; or (iii) passed both the 2012 NFSI (with a score of at least 75.06), and the Integrity Inventory but ranked too low to be selected for hire.7 Id. at ¶ III.F.3. The Decree defines those eligible for relief as “Claimants.” Id. Claimants who are eligible for back pay will receive a portion of the total back pay award, which is within the range of recovery based on the salary that 30 entry-level firefighters would have received if they had been hired in 2012 absent disparate impact. See Siskin Decl. ¶¶ 13 and 14. The total of 30 is derived directly from the estimated hiring shortfall from 2012 (18 Hispanics and 12 African Americans). Id. at ¶ 13. The $780,000 back pay settlement will be distributed pro rata among all eligible and interested Claimants.
3. Priority Appointments with Retroactive Seniority The Decree obligates the City to ensure that thirty priority appointments are made to twelve African-American and eighteen Hispanic Claimants from the 2012 hiring process. Decree at ¶ III.F.5.d. Importantly, the Decree does not require the City to appoint anyone who is not qualified to be a fire cadet. All Claimants who wish to compete for a priority appointment must successfully complete the new, lawful selection procedure developed by the City under the Decree. Id. at ¶ III.C.6. All Claimants also must successfully complete the cadet academy to become entry-level firefighters. Each Claimant who receives a priority appointment will be entitled to retroactive seniority dates which will be the same dates the Claimant would have been hired and commissioned, respectively, but for the challenged practices that adversely affected the protected group. Id. at App. A ¶ 9. These dates are the same hire and commission dates awarded to the 7 The City did not consider 2012 applicants who did not achieve a minimum score of 70 on the SOI to have passed that test. Those individuals will not be eligible for relief.
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actual applicants who were hired in 2012, and thus are in the range of recovery the United States would obtain if it prevailed at trial.
4. Fairness Hearings, Objections, and Individual Relief Claims Process a. Initial Fairness Hearing
Pursuant to the terms of the Decree, the Parties move the Court to schedule two fairness hearings. Id. at ¶ III.D. At the first hearing (the “Initial Fairness Hearing”), the Court will determine whether the terms of the Decree are lawful, reasonable and equitable. Id. at ¶ III.D.1. Prior to the Initial Fairness Hearing, individuals whose interests may be affected by the Decree (including all known potential Claimants, the AFA , all incumbent Austin firefighters, and the individuals who participated in the two components of the 2013 hiring process administered to date) will be given notice of the Decree and an opportunity to file objections. Decree at ¶ III.D.3. Importantly, the United States has already presented proposed Decree terms to the union and received its input, and the Parties have made substantive changes to their agreement based on the union’s feedback. Regardless, however, at the Initial Fairness Hearing, the Court will consider and resolve any objections received, including any submitted by the union. Assuming the Court concludes at the end of the Initial Fairness Hearing that the Decree is lawful, reasonable and equitable, the Parties will ask that the Court enter the Decree as a final Order. Id. at ¶ III.E.
b. Individual Relief Claims Pro cess and Fairness Hearing on Individual Relief
The Decree contains a process, to occur after the Court has finally entered the Decree, for persons who believe that they are entitled to individual relief to submit Interest-in-Relief forms to a claims administrator. Id. at ¶¶ III.F.3-4. The United States will make individual relief determinations for all Claimants after considering any timely raised objections by the City. Id. at
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¶ III.F.6. Furthermore, the Decree provides for a second fairness hearing (the “Fairness Hearing on Individual Relief”) for the Court to approve or modify the individual relief determinations made by the United States, and to review any timely made objections to the individual relief determinations. Id. at ¶ III.F.8.
5. Continuing Jurisdiction and Duration of the Decree Under the Decree, the Court will retain jurisdiction over this matter for a minimum of four years, though the Parties will be obligated to engage in informal dispute resolution efforts before bringing any disagreements to the Court’s attention. Decree at ¶ IV. The Decree will expire, and the case will be dismissed without further order of the Court, on the latest of the following occurrences: (i) complete fulfillment of the Parties’ obligations regarding the individual relief to be awarded under the Decree; (ii) 30 days after the establishment of a final eligibility list based on the second administration of the new, lawful entry-level firefighter examination following the Date of Entry of the Decree; or (3) four years from entry of the Decree. Id. at ¶ V. If none of those events has occurred within four years of the Date of Entry of the Decree, either Party may move for a hearing to determine the appropriate next steps in the process. In addition, if one or both Parties establish good cause, the Decree may be extended, but only up to a cumulative total of eight years from the Date of Entry. Id. IV. ARGUMENT A. Standard of Review “Voluntary settlement of Title VII suits was deliberately adopted by Congress as a means of accomplishing its goal of eliminating employment discrimination.” United States v. City of Miami (“City of Miami II”), 664 F.2d 435, 442 (5th Cir. 1981). Indeed, “‘[c]ooperation and voluntary compliance were selected as the preferred means of achieving this goal.’” Id. (quoting
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Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)); see also Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14 (1981) (“In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims.”). As the Fifth Circuit has acknowledged, Congress places an “extremely high premium . . . on voluntary settlements of Title VII suits.” United States v. City of Miami (“City of Miami I”), 614 F.2d 1322, 1331 (5th Cir. 1980), modified per curiam, 664 F.2d 435 (Former 5th Cir. Dec. 1981). Thus, “Title VII consent decrees should be viewed in light of Congress’ determination that voluntary compliance is a preferred means of enforcing nondiscriminatory employment policies and practices.” Williams v. City of New Orleans, 694 F.2d 987, 991 (5th Cir. 1983) (citation omitted).
“In Title VII litigation, consent decrees enjoy a presumption of validity.” Id. (citing United States v. City of Alexandria, 614 F.2d 1358, 1359, 1362 (5th Cir. 1980), overruled on other grounds implicitly by Dean v. City of Shreveport, 438 F.3d 448, 452 n.1 (5th Cir. 2006); see also City of Miami I, 664 F.2d at 440 (indicating that consent decrees in Title VII cases are presumptively valid) (citations omitted). In particular, in cases where the United States is a plaintiff, that presumption “‘is overcome only if the decree contains provisions which are unreasonable, illegal, unconstitutional, or against public policy.’” Williams, 694 F.2d at 991 (quoting City of Alexandria, 614 F.2d at 1362); cf. E.E.O.C. v. Johnson & Higgins, Inc., No. 93 CIV 5481 LBS, 1999 WL 544721, at *3 (S.D.N.Y. Jul. 26, 1999) (well-settled that courts have limited role in reviewing proposed settlement agreements in litigation initiated by EEOC, which has responsibilities analogous to Department of Justice) (internal citation omitted).
When assessing whether a proposed consent decree is lawful, reasonable and equitable, the Fifth Circuit considers several factors, commonly known as the Parker factors. See Salinas v. Roadway Express, Inc., 802 F.2d 787, 789 (5th Cir. 1986) (citing Parker v. Anderson, 667
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F.2d 1204, 1209 (Former 5th Cir. 1982), cert. denied, 459 U.S. 828 (1982)); see also San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 453 (W.D. Tex. 1999)). Those factors are:
(1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense, and likely duration of litigation; (3) the stage of the proceedings and the actual am ount of discovery com pleted; (4) th e factual an d legal obs tacles to prevailing o n the m erits; (5) the po ssible range of recovery a nd the cer tainty of damages; and (6) the respective opinions of the participants, including class counsel, class representatives and the absent class members. Salinas, 802 F.2d at 789 (citing Parker, 667 F.2d at 1209). Because this Decree satisfies the factors to be addressed prior to provisional entry of a decree, this Court should grant the Joint Motion. B. In Light of the Parker Factors, the Decree Is Lawful, Reasonable and
Equitable As explained below, the Decree is not the product of fraud or collusion, the United States is likely to prevail on the merits, and the Decree-afforded relief strikes an appropriate balance between the strength of the United States’ case and the uncertainty and delay inherent in contested and protracted litigation. Furthermore, two fairness hearings will occur to consider the respective views of those eligible for relief under the Decree and others whose interests may be affected. It is worth noting that, at this time the Parties cannot know the opinions of all absent, potentially interested parties, but at the same time, the Parties are only requesting provisional entry and thus the sixth Parker factor may not yet be at issue. Nevertheless, the Parties will address that factor in this brief to their best of their ability.
1. The Decree Is the Product of Arms’ Length Bargaining “In the absence of fraud or collusion, the trial court should be hesitant to substitute its own judgment for that of counsel.” Ruiz v. McKaskle, 724 F.2d 1149, 1152 (5th Cir. 1984) (analyzing lower court’s approval of modified settlement in prison conditions case). When “the
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parties engaged in a lengthy, arms’ length settlement process,” they satisfy the first Parker factor. DeHoyos v. Allstate Corp., 240 F.R.D. 269, 287 (W.D. Tex. 2007); see also San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 458 (W.D. Tex. 1999) (finding no fraud or collusion where the parties were “vigorously represented” and engaged in long-term, arm’s-length negotiations).
The Parties’ agreement to settle this case was the product of extensive arm’s-length negotiations by experienced Title VII counsel zealously representing their clients. The Parties’ settlement communications and positions were informed by the results of the United States’ indepth investigation of the City’s entry-level firefighter hiring practices. That investigation involved active participation by counsel for all Parties, the production and review of voluminous data in response to requests for information, and consultation with multiple experts regarding the disparate impact of the City’s selection procedures, the validity of those procedures, and the City’s methods of use (such as the selection of a cut-off score, the effective cut-off score, and the City’s scoring, weighting, and ranking practices). Having gone through that process, the Parties are well-positioned to determine the strengths and weaknesses of their cases and, in light of their respective case assessments, the benefits and burdens associated with contentious litigation, as opposed to settlement. Finally, the Decree contains no terms – such as the provision of significant attorneys’ fees for one side’s counsel – that might incentivize the Parties to collude or seek to defraud. For those reasons, the first Parker factor favors entry of the Decree.
2. Substantial Pre-Suit Investigation Supports the Conclusion that the United States Has a Strong Case on the Merits
As this Court has explained, when it comes to evaluating the fairness and legality of a settlement, “[s]ufficiency of information does not depend on the amount of formal discovery
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which has been taken because other sources of information may be available to show the settlement may be approved even when little or no formal discovery has been completed.” San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 459 (W.D. Tex. 1999). Since late April 2013, when the United States commenced its pre-suit investigation, the Parties have collected more than ample information to assess the relative strengths and weaknesses of their positions in this matter, and to reach the conclusion that the United States has a strong case on the merits.
In response to the United States’ requests for information about the City’s hiring practices, the City produced numerous documents and datasets, and the Parties have communicated extensively about the City’s responses to the requests. Additionally, the United States has shared data from the City with experts – namely, Dr. Jones and Dr. Siskin – who have advised the United States regarding matters affecting the viability of both its claims and defenses the City might raise. The United States also has reviewed documentary evidence and data submitted by the City to the Equal Employment Opportunity Commission, shared with the United States by the Commission pursuant to Section 706 of Title VII.
Based on this substantial exchange of information, the United States asserts that it has ample evidence to show that the City’s 2012 selection process was vulnerable under Title VII. The City does not dispute that assertion. Title VII’s disparate impact-related prohibitions require the removal of “employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for [protected] groups and are unrelated to measuring job capability.” Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971);8 Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.
8 This theory was first articulated in Griggs, 401 U.S. at 432, by the United States Supreme Court. Congress later codified the disparate impact theory of discrimination in the 1991 Civil Rights Act, which amended Title VII.
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1976). Accordingly, if a testing procedure produces a disparate impact based on the race or national origin of candidates for hire, then Title VII prohibits its use unless the employer proves that the device is “job-related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); Zuniga v. Kleberg Cnty. Hosp., Kingsville, Tex., 692 F.2d 986, 989 (5th Cir. 1982). Moreover, even if an employer can make this showing, Title VII bars using the procedure if there is an alternative employment practice with less disparate impact that will meet the employer’s needs. See 42 U.S.C. § 2000e-2(k)(1)(A)(ii); see also Dothard, 433 U.S. at 329 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Zuniga, 692 F.2d at 989.
In general, statisticians, testing experts, and social scientists consider a disparity to be “statistically significant” if the probability of the disparity occurring randomly is 5% or less. Siskin Decl.¶ 4. That probability standard is equivalent to approximately 1.96 units of standard deviation. Id. As a result, courts typically accept, as sufficient to establish a prima facie case of disparate impact, disparities that are statistically significant at the level of two to three units of standard deviation. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.14 (1977); McClain v. Lufkin Indus., Inc., 519 F.3d 264, 279-80 (5th Cir. 2008) (affirming the district court’s finding of disparate impact where the difference between salaried promotions of white versus African-American class members was equivalent to 2.02 standard deviations); Bazile v. City of Houston, Civil Action No. H-08-2404, 2012 WL 573633, at *46 (S.D. Tex. Feb. 6, 2012) (“‘Social scientists consider a finding of two standard deviations significant, meaning there is about one chance in 20 that the explanation for a deviation could be random and the deviation must be accounted for by some factor other than chance.’”) (quoting Waisome v. Port Auth. of N.Y. and N.J., 948 F.2d 1370, 1376 (2d Cir. 1991)).
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Based on the information exchanged pre-complaint, the United States asserts that it has ample evidence to show that the City’s 2012 use of the NFSI had a statistically significant disparate impact on both African-American and Hispanic applicants for entry-level firefighter positions with the City. Siskin Decl. ¶¶ 5-8. Test data indicate that the disparity between the respective effective pass rates of African Americans and whites is equivalent to 9.72 units of standard deviation. Id. at ¶ 5. Similarly, the disparity of the respective pass rates of Hispanics and whites is equivalent to 8.75 units of standard deviation. Id. at ¶ 5. Both of those figures far exceed the threshold that courts typically deem sufficient to establish a prima facie case of disparate impact. The City does not dispute these calculations in the Siskin Declaration.
The United States further asserts that the City’s 2012 ranking practice also had statistically significant disparate impact on each group, with a disparity between the respective mean ranks of Hispanics and whites equivalent to 4.88 units of standard deviation, and a disparity between the respective mean ranks of African Americans and whites equivalent to 4.18 units of standard deviation. Siskin Decl. ¶ 6. Notably, had it used a Title VII-compliant process, the City would have hired an estimated 18 additional Hispanics and an additional 12 African Americans as entry-level firefighters in 2012. Id. at ¶ 8. The City does not dispute these calculations in the Siskin Declaration.
Because the United States can make a prima facie case, the City can avoid liability only by proving that both its pass/fail use of the NFSI and its rank-ordering practice are “job-related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e2(k)(1)(A)(i). (This part of the analysis is sometimes referred to as “Prong II.”) In particular, Guardians Ass’n of New York City Police Dep’t, Inc. v. Civil Serv. Comm’n, 630 F.2d 79 (2d Cir. 1980) , confirms that, when a city uses both cut-off scores and rank ordering as parts of its
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selection process, each of those subsidiary practices must independently satisfy Title VII’s requirement of job-relatedness. See id. at 100-05, 105-07. To satisfy that standard, each selection process must be “shown, by professionally acceptable methods, to be ‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job.” Albemarle, 422 U.S. at 431 (quoting 29 C.F.R. § 1607.4(C)); see also Bernard v. Gulf Oil Corp., 841 F.2d 547, 563-64 (5th Cir. 1988).
The available evidence strongly suggests that the City would be unable to meet this burden. First, as explained by the United States’ I/O psychologist, Dr. David Jones, the local criterion-related study conducted by the City’s test developer found no meaningful predictive value in assessing the job performance of incumbent Austin firefighters. Jones Decl. ¶ 33. Second, Dr. Jones also found an error in the administration of the 2012 NFSI that substantially undermined the City’s ability, through its test developer, to transport results from the test developer’s national study to the City. Specifically, the City inadvertently allowed candidates only two hours to complete the NFSI when the validation study allowed two-and-a-half hours. Id. at ¶¶ 40-43. Last, according to Dr. Jones’s analysis, the City’s use of the NFSI as a pass/fail device with a cut-off score of 75.06 was unsupported by the test developer’s validation study, which recommended a cut-off score of 57.75 based on the data the developer had collected. In other words, the City did not have a proper basis to eliminate or retain candidates for further screening using that cut-off score because it did not distinguish meaningfully among those candidates who can better perform the job of fire cadet or entry-level firefighter, and instead excluded some candidates who would likely perform the job better than the candidates who were selected. Id. at ¶¶ 44-48; see also Guardians at 105-06. Thus, the United States contends that the City cannot meet its burden under Prong II of the Title VII disparate impact analysis.
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Likewise with respect to the City’s proposed use of the 2013 selection process, the United States asserts that it has evidence showing disparate impact against both African Americans and Hispanics through statistical evidence, and that the City did not, as was its obligation, meet its burden of establishing validity. Although the United States’ expert, Dr. Jones, found some evidence of validity for the 2013 process by conducting his own analysis (which was limited by the fact that the City’s test vendor did not retain the original scoring sheets created by the SOI raters that would be necessary to establish the transportability, fairness, and reliability of the SOI, which made up eighty percent of the final score), he also identified an alternative way to use the results of the 2013 examination that both reduces adverse impact on protected groups and retains the same validity as the previously planned use. Jones Decl. ¶¶ 7782; Siskin Decl. ¶ 10. Nonetheless, and because there is some evidence of validity of the overall process, the Decree allows the City to use the cognitive and SOI scores from the 2013 process, as it had planned, for the limited purpose of hiring up to 90 cadets to meet the City’s exigent hiring needs while a new lawful exam is being developed. Decree at ¶ III.C.6. The City does not contest these portions of the Jones Declaration.
In sum, based on the extensive amount of discovery already completed and the results of that discovery, which suggest the United States has a strong case on the merits, the proposed Decree satisfies the third and fourth Parker factors.
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3. The Relief in the Consent Decree Falls Well Within the Range of Remedies the United States Could Recover if it Prevailed Under Title VII
District courts have “not merely the power but the duty to render a decree that will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Albemarle, 422 U.S. at 418 (citation omitted). Here, the relief provided in the Consent Decree does this by: (1) providing individual relief including back pay and/or priority hire positions to Hispanics and African Americans who have been harmed by the challenged practices, and (2) ensuring through prospective injunctive relief that the City will develop and use a selection procedure that complies with Title VII and does not unnecessarily exclude qualified Hispanics and African Americans from the position of entry-level fire cadet. Further, as discussed in detail infra in Section IV.B.4, individuals whose interests may be affected by implementation of the Decree are afforded an opportunity to object and to have their objections resolved by this Court.
a. The Individual Relief Should Be Awarded One of the central purposes of Title VII is to make whole persons who have been harmed by employment practices that violate the statute. In enacting Title VII, “Congress took care to arm the courts with full equitable powers,” so that the courts may fashion relief for identifiable individuals. Albemarle, 422 U.S. at 418. To exercise those equitable powers, a court may order such relief as may be appropriate, “which may include, but is not limited to, reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976) (quoting Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g)); see also Booker v. Taylor Milk Co., 64 F.3d 860, 864 (3d Cir. 1995) (indicating that Title VII authorizes back pay); United States v. New Jersey, No. CIV.
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88-5087 WGB, CIV. 88-4080(MTB), CIV. 87-2331(HAA), 1995 WL 1943013, at *20-22 (D.N.J. Mar. 14, 1995) (noting that circuit courts have repeatedly upheld lower court decisions granting seniority relief as a remedy in Title VII cases and that Title VII authorizes the creation of priority eligibility lists from which priority promotions will be made).
In Title VII pattern or practice cases like this, “[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Albemarle, 422 U.S. at 418-19 (citation omitted). Given these principles, courts have routinely entered consent decrees that confer the kinds of individual remedial relief included in this Decree – back pay, priority appointments, and retroactive seniority to those receiving priority appointments. See, e.g., United States v. New Jersey, Civ. No. 10-91 (KSH)(MAS), 2012 WL 3265905, at *1 (D.N.J. Jun. 12, 2012), aff’d, 522 F. App’x 167 (3d Cir. 2013), cert. denied, 134 S. Ct. 529 (2013); United States & Corpus Christi Police Officers’ Ass’n. v. City of Corpus Christi, Tex., 2:12-cv-00217 (S.D. Tex. May 16, 2013); United States v. City of Portsmouth, Va., 2:09-cv-00133-MSD-FBS (E.D. Va. Jul. 23, 2009).
Importantly, individual remedial relief under the Decree is available only to those who were adversely affected by the practices the United States challenged – namely, African Americans and Hispanics who were never appointed as firefighters and who: (i) took and failed (with a score of less than 70) the 2012 NFSI but passed the Integrity Inventory; (ii) took the 2012 NFSI and scored at least 70 but who nonetheless “effectively failed” the 2012 NFSI (because their score was below 75.06, and they were thus not among the 1,500 highest-scoring applicants) but passed the Integrity Inventory; or (iii) passed both the 2012 NFSI (with a score of at least
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75.06) and the Integrity Inventory but ranked too low to be selected for hire.9 See Decree at ¶ III.F.3.
In terms of back pay, the settlement fund of $780,000 is reasonable and equitable because the total amount reflects a realistic estimate of what new Hispanic and African-American firefighters would have earned absent the challenged selection practices. The total amount represents the salary that thirty firefighters, half appointed in the first 2012 class and half appointed in the second 2012 class, would have made through late November 2013, around the time the Parties reached agreement on a monetary amount. Because this is a settlement, interest is not included, nor are incentive pay or overtime pay amounts, and a mitigation factor is taken into account.
Distributing the back pay amount among all eligible claimants (as opposed to only the thirty priority hires) also is equitable, and it will provide those individuals with relief that is within the range of what they could recover if the United States prevailed at trial. It is impossible to know exactly which thirty individuals would have been hired in a Title VIIcompliant process. The Eleventh Circuit has explained “in the context of remedial backpay relief that a classwide remedy is appropriate when fashioning an individualized remedy would create a quagmire of hypothetical judgments as to which individuals, out of a large class, should receive remedial relief.” United States v. City of Miami, 195 F.3d 1292, 1299 (11th Cir. 1999) (internal quotations and citations omitted); see also Segar v. Smith, 738 F.2d 1249, 1290 (D.C. Cir. 1984) (same); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261 (5th Cir. 1974) (same). In
9 The City did not consider 2012 candidates who failed to achieve the minimum cutoff score on the SOI to have passed that test. Since the United States does not contend that the minimum cutoff score on the SOI was an unlawful employment practice under Title VII, the Decree excludes those 2012 candidates who did not achieve the minimum SOI cutoff score from the pool of 2012 candidates who are eligible for individual relief.
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addition, some individuals, including some of those who might have been hired at the time, may no longer be interested in employment at the Austin Fire Department. Thus, to award the entire monetary amount to only thirty people would necessarily be both under-inclusive and overinclusive. Distributing the amount evenly to all interested and eligible claimants (a number likely be in the several hundreds) is therefore a more equitable and efficient solution.
The priority appointments also are within the range of recovery that the United States could obtain if it prevailed on the merits. The number of priority appointments required by the Decree (thirty) is the same as the estimated number of African-American and Hispanic appointments that would have been made in the absence of the discriminatory employment practices. Siskin Decl. ¶ 8. Importantly, the Decree ensures that only Claimants who demonstrate that they are presently qualified for the position of entry-level fire cadet will be eligible for priority appointments. See Decree at ¶ III.F.5.b; also App. E ¶¶ 4-5.
Finally, the Decree appropriately provides retroactive seniority to Claimants who receive priority appointments. Decree at ¶ III.F.5.k. Awarding retroactive seniority is a necessary element in placing qualified individuals – who, but for the challenged practices, would have been hired earlier – in the positions they would have occupied in the absence of the alleged discrimination. Such retroactive seniority relief ordinarily is necessary to achieve Title VII’s “make whole” objective. See Franks v. Bowman Transp. Co., 424 U.S. 747, 765 (1976); United States. v. New Jersey, No. CIV. 88-5087 WGB, CIV. 88-4080(MTB), CIV. 87-2331(HAA), 1995 WL 1943013, at *19 (D.N.J. Mar. 14, 1995). In fact, courts have found that there is a presumption in favor of affording such seniority relief when the parties reach a voluntary settlement. See Franks at 780, n.41; see also Moore v. City of San Jose, 615 F.2d 1265, 1272 (9th Cir. 1980); Bockman v. Lucky Stores, Inc., No. CIV S 83-039 RAR, 1986 WL 10821, at *4
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(E.D. Cal. Aug. 11, 1986), aff’d, 826 F.2d 1069 (9th Cir. 1987). The retroactive seniority to be awarded under the Decree achieves the make-whole objective because the retroactive hire and commission dates are the exact same dates that those hired through the regular 2012 hiring process were given. Because the two classes hired in 2012 were of similar sizes, the Parties have agreed that half of the priority hires will have the hire and commission dates assigned to the first 2012 class, and the other half will have the hire and commission dates assigned to the second 2012 class.10 All of these facts favor a finding that the retroactive seniority awarded under the Decree is appropriate.
b. The Prospective Injunctive Relief Should Be Awarded When an employer has engaged in a pattern or practice of discrimination in violation of Title VII, an award of prospective injunctive relief is justified without any further showing. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977). Courts have routinely entered consent decrees that, like the Decree here, afford such relief. See, e.g., Vulcan Pioneers, Inc. v. New Jersey Dep’t of Civil Serv., 832 F.2d 811, 816 (3d Cir. 1987) (“Vulcan II”). Appropriate prospective injunctive relief may include a bar against future discrimination, an order to maintain records and generate compliance reports, or any other directive that is “necessary to ensure the full enjoyment of the rights” Title VII protects. See Teamsters, 431 U.S. at 361. Such relief may also include prohibiting the use of an unlawful exam or other invalid selection criteria, restricting the ability to promote from eligible lists shaped by unlawful selection practices, and ordering the adoption of new, lawful selection procedures. See, e.g., Vulcan II, 832 F.2d at 816 (affirming, in matter involving enforcement of consent decree, district 10 The six highest-ranked African Americans and the nine highest-ranked Hispanics on the respective priority hire lists will be deemed to have been in the first fire cadet training academy. The next six African Americans and nine Hispanics will be deemed to have been in the second academy.
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court’s prohibitions on using discriminatory exams and making promotions from lists generated by unlawful exams).
Consistent with these parameters, and given the deficiencies with the 2013 selection process noted by Dr. Jones, the Decree in this case requires the City to develop a new, lawful procedure for screening and selecting entry-level fire cadets and firefighters. See Decree ¶ III.C.6. While the City will be free to decide the selection devices and processes for its fire cadet hiring while the Decree is in effect, the Decree provides the United States with the right to review the City’s chosen selection devices and processes as a way of ensuring that the new selection practices comply with Title VII. In the event the United States objects to any part of a future hiring process while the Decree is in effect, the Decree provides a procedure by which the United States and the City will attempt to resolve the dispute, with ultimate resort to the Court for resolution if the parties are unable to agree. This relief is tailored directly to the United States’ allegations, will be highly effective in resolving the problems associated with the City’s recent hiring practices, and will preserve to the City the prerogative to develop a hiring process that meets its operational needs (subject to the United States’ review as described above). Thus, the injunctive provisions of the Decree are within the range of relief the United States would obtain if it prevailed at trial.
4. The Respective Opinions of Couns el, the Claimants, and Others Whose Interests May Be Impacted Will Be Considered
“In reviewing the opinions of counsel, the Court is to bear in mind that counsel for each side possess the unique ability to ‘assess the potential risks and rewards of litigation, and a presumption of correctness is said to attach to a class settlement reached in arms [sic] length negotiations between experienced, capable counsel after meaningful discovery.’” Neff v. VIA Metro. Transit Auth., 179 F.R.D. 185, 211 (W.D. Tex. 1998) (citing Lelsz v. Kavanagh, 783 F.
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Supp. 286, 297 (N.D. Tex. 1991) (quoting The Manual for Complex Litigation § 30.41), aff’d, 983 F.2d 1061 (5th Cir. 1993), cert. denied, 510 U.S. 1004 (1993)). As the preceding discussion shows, the Parties and their counsel have closely examined the facts and law at issue here. Further, all counsel have significant experience in Title VII litigation as well as in negotiating settlement agreements. Indeed, the Justice Department’s Employment Litigation Section frequently investigates and litigates cases of this very nature. And, in connection with that work, attorneys in that Section often negotiate, implement, and enforce consent decrees, including ones that are substantially similar to the Decree. Given that backdrop and the discussion above concerning the other Parker factors, endorsement of the Decree by the Parties’ legal counsel favors entry.
Also, pursuant to Title VII (42 U.S.C. § 2000e-2(n)(1)), the Decree contains a detailed protocol for providing potentially interested parties with notice and the opportunity to object. The Decree provides for two fairness hearings – an Initial Fairness Hearing, and a Fairness Hearing on Individual Relief, the latter occurring after final entry of the Decree but before individual relief awards are distributed. Before the Initial Fairness Hearing, written notice of the Decree and the date of the Initial Fairness Hearing, as well as instructions for submitting objections to the relief provided in the Decree, will be provided to persons whose interests may be affected, including the AFA and incumbent firefighters themselves. See Decree at ¶ III.D.3. Notice will be made in several ways including: (i) electronic mail; (ii) conspicuous postings on the City’s websites; and (iii) in Austin’s major newspaper. Id. At the Initial Fairness Hearing, the Court will determine, after considering timely filed objections, whether the terms of the Decree are lawful, reasonable and equitable.
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Assuming the Decree is finally entered by the Court, a claims process will follow, after

which Claimants will be given a second opportunity to object, this time to their awards of

individual relief. During this second fairness hearing, the Court can evaluate whether the awards

of individual relief are fair given the Claimant population and the total amount of relief available

under the Decree. The Decree contemplates that the Court will, after considering timely filed

objections, enter an order approving or modifying the proposed individual relief, as appropriate.

Importantly, the fairness hearings set forth in the Decree comport with 42 U.S.C. §

2000e-2(n)(1), which states, in relevant part, that:

(1)(A) Notwithstanding any oth er provision of law, and except as

provided in paragraph (2), an

em ployment practice that

implements and is within th e sc ope of a litigated or consent

judgment or order that resolves a claim

of e mployment

discrimination under the Constitution or Federal civil righ ts laws

may not be challenged under the circumstances described in

subparagraph (B).

(B) A practice described in

subparagraph (A) m ay not be

challenged in a cla im under the Co nstitution or Federal civil rights

laws--

(i) by a person who, prior to the entry of the judgm ent or order described in subparagraph (A), had--

(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgm ent or order m ight adversely affect the interes ts and legal ri ghts of such person and that an opportunity was available to presen t objections to such judgm ent or order by a future date certain; and

(II) a reasonable opport unity to present o bjections to such judgment or order; or

(ii) by a person whose interests w ere adequately represented by another person who had previously challenged the judgm ent or order on the sam e legal ground s and with a sim ilar f actual situation, unless there has been an intervening change in law or fact.

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42 U.S.C. § 2000e-2(n)(1). Thus, the fairness hearings will address due process concerns by affording all potentially interested parties the opportunity to be heard, and protect the Decree from collateral attack. See generally Edwards v. City of Houston, 78 F.3d 983, 991 n.8 (5th Cir. 1996) (“Section 2000e-2(n) protects consent judgments from certain subsequent collateral challenges by persons who, although not parties to the litigation that produced it, may have interests adversely affected by the judgment.”); U.S. v. New Jersey, No. CIV. 88-5087 WGB, CIV. 88-4080(MTB), CIV. 87–2331(HAA), 1995 WL 1943013, at *23-4 (D.N.J. Mar. 14, 1995) (concluding that fairness hearing process consistent with 42 U.S.C. § 2000e-2(n)(1)(A) protected the procedural due process rights of all individuals potentially affected by the consent decree).
5. The Complexity, Expense, and Anticipated Duration of Litigation Weigh in Favor of Settlement
When the parties are faced with the likelihood of a lengthy trial and extensive risks and costs, courts in this Circuit have found that the second Parker factor favors settlement. San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 458 (W.D. Tex. 1999) (repeating the court’s statement at the fairness hearing that, “[t]he full litigation route [involves] risks and costs, not only monetary costs, but also damage to the department and to the city.”); see also Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004) (noting, in approving a Title VI and Equal Protection Clause settlement using the Parker factors, that settlement would provide relief for the class sooner than litigation would).
Here, settlement will avoid years of expensive and time-consuming litigation. Absent settlement, the United States expects to move to bifurcate the proceedings for separate trials on liability and damages. Extensive discovery will ensue, including reports and depositions from experts who would assess the impact and validity of the City’s use of the NFSI and its rank-order practice. Furthermore, based on how other cases like this have been handled, absent settlement,
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the Parties expect extensive motions practice, which could include the filing of dispositive motions, motions in limine, motions challenging experts and/or their findings, and motions for reconsideration of adverse rulings. It is likely that appeals would follow. In short, engaging in contested litigation would almost certainly mean that this matter would not be resolved for years, and then only after both the United States and the City expend tremendous resources. Such a result would substantially delay any relief to the Claimants that is ultimately awarded by the Court. Moreover, the City asserts that contested litigation over hiring at the Austin Fire Department would throw into uncertainty the City’s ability to continue hiring entry-level fire cadets during the litigation, which could create a serious operational risk for the City. Finally, if the United States prevails after litigation, the City will likely have incurred additional monetary liability, because back pay will continue to accrue on the claims associated with the 2012 process. Thus, the second Parker factor weighs on the side of entering the Decree.
C. The Proposed Consent Decree Is Consistent with the Standard Laid Out in Ricci v. DeStefano
In Ricci v. DeStefano, 557 U.S. 557 (2009), the Supreme Court held that “raceconscious” action taken to avoid Title VII disparate impact liability may in certain circumstances violate Title VII’s prohibition against disparate treatment. Ricci at 563. To avoid such an outcome, an employer must possess a “strong basis in evidence” to conclude that, absent taking the race-conscious action, it would be liable for a Title VII disparate impact violation. Id. The Ricci case did not involve race-conscious employment actions (such as the individual relief and limitations on the use of the interim hiring list here) that were taken pursuant to a consent decree in an action brought by the United States under Section 707 of Title VII. Thus, the Parties believe that Ricci is inapplicable to this case, and does not preclude entry of the Decree by this Court.
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Nonetheless, even if the Court concludes that the Ricci holding does apply here, the standard established by the Supreme Court in that case is easily satisfied. In this case, the United States’ pre-suit investigation, along with the declarations of the United States’ experts attached to this memorandum, demonstrate a strong basis in evidence to conclude: (1) there is a prima facie case of disparate impact discrimination, see supra Sec. III.A.1; and (2) the challenged 2012 and 2013 exams and their use by the City are not sufficiently job-related and consistent with business necessity, see supra Sec. III.A.2. In addition, the United States’ expert identified less adverse practices that the City could use without loss of job-relatedness for the 2013 test scores. Thus, the Ricci standard is fully met in this case.
D. The Parties Have Consulted with the Austin Firefighters’ Association and Modified the Proposed Decree Based on the Union’s Input
The Parties recognize that in the Fifth Circuit the Court must consider the interests of third-party stakeholders who have a cognizable interest in the terms of a proposed decree. See United States v. City of Miami (“City of Miami II”), 664 F.2d 435, 441 (5th Cir. 1981). In that spirit, the Parties have voluntarily consulted extensively with the AFA, which is the union that most recently had a collective bargaining agreement with the City regarding current Austin firefighters (but not job applicants), and have incorporated multiple suggestions from the AFA into the Decree.
Specifically, when the Parties had reached tentative agreement on many of the major terms of the Decree, although there was no, and is no, collective bargaining agreement in place, counsel for the United States, along with Dr. Jones, traveled to Austin to meet with representatives of the AFA, their legal counsel, and their retained I/O psychologist (“first meeting”). During the first meeting, counsel for the United States outlined the major terms the Parties had discussed. The AFA representatives had the opportunity to ask questions and
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provide their input on any aspects of the Decree with which the AFA might have concerns. The AFA expressed that it did not oppose awarding retroactive seniority to priority hires, but that it did want to make sure the firefighters’ pension fund was made whole if back pension credit was to be awarded in a settlement.11
After the first meeting, the AFA requested by letter information and data that the United States had used to arrive at its findings of liability as well as in calculating individual relief. The United States, in cooperation with the City, provided all of the requested information, with only minor modifications made to address individual privacy concerns. The United States also arranged for Dr. Jones to speak a second time with the AFA’s retained I/O psychologist to answer questions raised by the AFA. Ultimately, the union transmitted a letter to the United States that detailed the union’s positions on the relief that the United States and City had tentatively agreed upon.
At the AFA’s request, the United States later set up an all-day meeting in Austin facilitated by an experienced mediator (“second meeting”). Representatives from and counsel for the AFA, the United States Department of Justice, the U.S. Equal Employment Opportunity Commission, and the City all attended the second meeting. During the second meeting, the United States again heard the AFA’s concerns and attempted to resolve them through negotiation with both the AFA and the City.
11 This concern has since become moot. The Austin fire fighters’ pension system (the “System”) is an entity created by state statute, and is a separate legal entity from either the City or the AFA. See Vernon’s Tex. Civ. Stat. Art. 6243e.1. The System is not a party to this litigation. On March 3, 2014, the Parties made a formal request to the System for a determination whether the governing statute would permit the System to recognize back pension service credit. The System’s Board of Trustees considered the request and advised the Parties that under its governing state statute the System cannot recognize back pension service credit based upon the facts of this case.
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As noted in a letter posted on the AFA’s website and sent to the DOJ after the second meeting, the AFA’s positions were as follows: (1) the AFA had no opposition to the City making thirty remedial, fire cadet priority hires, eighteen of whom would be Hispanic and twelve of whom would be African-American; (2) the AFA opposed the Parties’ proposed method of selecting priority hires as part of remedial relief for unsuccessful 2012 African-American and Hispanic candidates; and (3) the AFA disputed the United States’ conclusions regarding the need for an alternative use of the 2013 process and the need for injunctive relief based on that process. See Letter from C. Deats to S. Bloom dated April 29, 2014, attached as Exhibit 5, available at http://gallery.mailchimp.com/8da3f85834ed23802b19db6e9/files/21ff10f3-b226-4afb-bf531255e722bec9.pdf (last visited June 2, 2014).
The Parties have addressed the AFA’s concerns listed above in the Decree, including making significant changes to some of its provisions. First, the AFA wanted the City to select 2012 priority hires using the 2013 selection devices instead of using a modified version of the 2012 process because, the AFA argued, the 2012 test results were flawed. See Letter at 2. Because of the problems with the 2013 process described above, the Parties could not agree to use those test results either. Further, given that the AFA does not represent fire cadet job applicants, only incumbents, the Parties do not believe the AFA has a cognizable interest in that portion of the injunctive relief provided under the Decree. (Frankly, because the AFA and the City do not have an operative collective bargaining agreement, it is questionable whether the AFA has any cognizable interest affected by the Decree at all.) Nonetheless, the Parties considered the suggestion of the AFA not to use the 2012 test scores, and have agreed that the City will instead use the new, lawful process to be developed under the Decree. Decree at ¶ III.F.5.b.
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As to the 2013 selection process, although the United States initially held to its position that the 2013 hiring process must be modified to comply with Title VII, the Parties have since agreed that the City may use the cognitive and SOI test scores from the 2013 process, in accordance with the method for which the AFA advocated, for the limited purpose of hiring up to 90 cadets in order to address the City’s short term need to hire fire cadets. Decree at App. B, ¶ 6.
The Parties anticipate that the AFA may also oppose the method of distribution of the back pay fund set forth in the Decree at Paragraph III.F.6.a. However, as set forth in Section IV.B.3.a above, the Decree’s pro rata distribution of back pay among all eligible Claimants is equitable and consistent with the applicable standards for whether the Decree should be approved. In any event, since the AFA is not responsible for providing the monetary relief, and is not the bargaining representative for these individuals, the Parties maintain that the AFA has no cognizable interest in that component of the Decree.
Finally, after the second meeting, the AFA expressed its desire that use of the 2013 eligibility list be governed by a new collective bargaining agreement. See Letter at 2. That issue is beyond the scope of this case: the United States simply has no basis to make a collective bargaining agreement between the City and the AFA a condition of, or part of, a consent decree resolving allegations of hiring discrimination under Title VII against the City. Such collective bargaining is primarily a matter of state law between the City and the AFA, and would not and cannot involve the United States Department of Justice.
In sum, the AFA was provided and took advantage of ample opportunities for input on the Decree, and was given all requested and relevant data to review the terms of the Decree. The Parties made meaningful, major changes to the proposed Decree in order to address the AFA’s
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Case 1:14-cv-00533-LY Document 5 Filed 06/09/14 Page 38 of 40 concerns. The fact that the Parties were unable to agree to all requests from the AFA for changes to the Decree does not undermine the lawfulness or reasonableness of the Decree. V. CONCL USION
For the foregoing reasons, the Parties respectfully request that the Court enter the accompanying proposed Order, which provisionally approves and enters the proposed Consent Decree and sets the time, date, and location of an initial fairness hearing.
[Signature Page Following]
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Date: June 9, 2014 Date: June 3, 2014

Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General DELORA KENNEBREW Chief
By: /s/ Meredith Burrell /s/ Shayna Bloom /s/ Trevor Blake MEREDITH BURRELL (MD Bar, No number issued) Deputy Chief SHAYNA BLOOM (DC Bar No. 498105) TREVOR BLAKE (DC Bar No. 974319) Trial Attorney United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue NW Patrick Henry Building, Room 4500 Washington, DC 20530 Telephone: (202) 616-9100 Fax: (202) 514-1005 E-mail: meredith.burrell@usdoj.gov E-mail: shayna.bloom@usdoj.gov E-mail: trevor.blake@usdoj.gov
Counsel for Plaintiff United States of America
KAREN KENNARD, CITY ATTORNEY B. LEE CRAWFORD, JR., DIVISION CHIEF
By: _________/S/_______________________ B. Lee Crawford, Jr. State Bar No. 05018520 City of Austin Law Department Post Office Box 1088 Austin, Texas 78767-1088 Telephone: (512) 974-2268
35

Case 1:14-cv-00533-LY Document 5 Filed 06/09/14 Page 40 of 40
Fax: (512) 974-2894 Email: lee.crawford@austintexas.gov R. LAWRENCE ASHE, JR. State Bar (Georgia) No. 024500 Email: rla@phrd.com PAUL R. BARSNASS State Bar (Georgia) No. 597107 Email: prb@phrd.com Parker, Hudson, Rainer & Dobbs LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Telephone: (404) 523-5300 Fax: (678) 533-7730 ATTORNEYS FOR DEFENDANT CITY OF AUSTIN
36

 
 Case 1:14-cv-00533-LY Document 70 Filed 12/01/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

UNITED STATES OF AMERICA,

§

Plaintiff,

§

v.

§

CITY OF AUSTIN, TEXAS,

§

Defendant,

§

§

INTERNATIONAL ASSOCIATION OF

§

FIRE FIGHTERS, LOCAL 975, ANDRES §

ARREOLA, ANDREW BLAIR, CAROLINE §

BULL, JOHN EDMISTON, DANIEL

§

HATCHERSON, STEVEN HERRERA,

§

WILLIAM KANA, MATTHEW MARTIN, §

MATTHEW RETTIG, AND MEAGAN

§

STEWART,

§

Intervenors/Third-Party Defendants. §

Case No. 1:14-CV-00533-LY

NOTICE OF APPEAL

Pursuant to 28 U.S.C. § 1291 and Rules 3 and 4(a) of the Federal Rules of Appellate

Procedure, proposed intervenors Austin Firefighters Association, Arreola, Blair, Bull, Edmiston,

Hatcherson, Herrera, Kana, Martin, Rettig, and Stewart hereby give notice of their intent to

appeal from the final order approving the consent decree entered in Case No. 1:14-CV-00533-

LY on November 7, 2014 (Dkt. No. 63), the order denying the motion to stay the consent decree

entered on November 18, 2014 (Dkt. No. 68), and all other adverse orders.

The names of all parties to the judgments and orders appealed from, and the names,

addresses, and telephone numbers of their respective attorneys are as follows:

Austin Firefighters Association; Andres Arreola; Andrew Blair; Caroline Bull; John Edmiston; Daniel Hatcherson; Steven Herrera; William Kana; Matthew Martin; Matthew Rettig; and Meagan Stewart.

1

Case 1:14-cv-00533-LY Document 70 Filed 12/01/14 Page 2 of 5
Kevin J. Terrazas State Bar No. 24060708 Sara E. Janes State Bar No. 24056551 Nicole S. LeFave State Bar No. 24085432 WEISBART SPRINGER HAYES LLP 212 Lavaca Street, Suite 200 Austin, Texas 78701 512.652.5780 512.682.2074 fax kterrazas@wshllp.com sjanes@wshllp.com nlefave@wshllp.com
B. Craig Deats State Bar No. 05703700 DEATS, DURST, OWEN & LEVY, PLLC 1204 San Antonio Street, Suite 203 Austin, Texas 78701 512.474.6200 512.474.7896 fax cdeats@ddollaw.com
Counsel for Appellants
The United States of America
Delora L. Kennebrew Meredith Burrell Shayna Bloom Trevor Blake U.S. DEPARTMENT OF JUSTICE Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 616-9100 T (202) 514-1005 F delora.kennebrew@usdoj.gov meredith.burrell@usdoj.gov shayna.bloom@usdoj.gov trevor.blake@usdoj.gov
Counsel for Appellee the United States of America
2

Case 1:14-cv-00533-LY Document 70 Filed 12/01/14 Page 3 of 5
The City of Austin B. Lee Crawford, Jr. CITY OF AUSTIN LAW DEPARTMENT P.O. Box 1088 Austin, TX 78767-1088 (512) 974-2268 T (512) 974-2894 F lee.crawford@austintexas.gov R. Lawrence Ashe, Jr. Paul R. Barsness PARKER, HUDSON, RAINER & DOBBS LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue Atlanta, GA 30303 (404) 523-5300 T (404) 522-8409 F lashe@phrd.com pbarsness@phrd.com Counsel for Appellees the City of Austin
3

Case 1:14-cv-00533-LY Document 70 Filed 12/01/14 Page 4 of 5

Dated December 1, 2014.

Respectfully submitted,
WEISBART SPRINGER HAYES LLP
By: /s/ Kevin J. Terrazas Kevin J. Terrazas State Bar No. 24060708 kterrazas@wshllp.com Sara E. Janes State Bar No. 24056551 sjanes@wshllp.com Nicole S. LeFave nlefave@wshllp.com 212 Lavaca Street, Suite 200 Austin, Texas 78701 512.652.5780 512.682.2074 fax
B. Craig Deats State Bar No. 05703700 DEATS, DURST, OWEN & LEVY, PLLC 1204 San Antonio Street, Suite 203 Austin, Texas 78701 512.474.6200 512.474.7896 fax
ATTORNEYS FOR APPELLANTS

4

Case 1:14-cv-00533-LY Document 70 Filed 12/01/14 Page 5 of 5

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record herein by way of:

U.S. Mail, First Class Certified Mail Facsimile Federal Express Hand Delivery E-Service

on this 1st day of December, 2014, to wit:

Delora L. Kennebrew Meredith Burrell Shayna Bloom Trevor Blake US DEPARTMENT OF JUSTICE Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 616-9100 T (202) 514-1005 F delora.kennebrew@usdoj.gov meredith.burrell@usdoj.gov shayna.bloom@usdoj.gov trevor.blake@usdoj.gov
ATTORNEYS FOR PLAINTIFF UNITED STATES OF AMERICA

B. Lee Crawford, Jr. CITY OF AUSTIN LAW DEPARTMENT P.O. Box 1088 Austin, TX 78767-1088 (512) 974-2268 T (512) 974-2894 F lee.crawford@austintexas.gov
R. Lawrence Ashe, Jr. Paul R. Barsness PARKER, HUDSON, RAINER & DOBBS LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue Atlanta, GA 30303 (404) 523-5300 T (404) 522-8409 F lashe@phrd.com pbarsness@phrd.com

ATTORNEYS FOR DEFENDANT CITY OF AUSTIN

/s/ Kevin J. Terrazas Kevin J. Terrazas

5

 
 Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

v.

)

)

CITY OF AUSTIN, TEXAS,

)

)

Defendant.

)

Civil Action No. 1:14cv533-LY

JOINT MOTION BY THE UNITED STATES; CITY OF AUSTIN, TEXAS; AND PROPOSED INTERVENORS FOR SUPPLEMENTAL RELIEF

A. Introduction

Pursuant to Federal Rule of Civil Procedure 60(b)(6), the United States of America

(United States); the City of Austin, Texas (City); and the International Association of

Firefighters, Local 975 (AFA) (collectively, movants) jointly move this Court for an order

granting supplemental relief. The requested order for supplemental relief will grant AFA certain

rights to participate in discussions identified in Part III.C.6 and dispute resolution procedures

identified in Part IV of the Consent Decree that this Court approved on November 7, 2014 (Consent Decree or Decree). R. 64:14-17.1

On May 21, 2015, the Fifth Circuit issued an order dismissing without prejudice the two

pending appeals filed by AFA and the ten individual Austin firefighters who sought intervention

in this case in 2014 (collectively, the proposed intervenors). That order was issued in response to

the movants’ motion and notice that the movants had reached a settlement that would include

1 R. __:__ refers, respectively, to the docket number and page number of the document recorded on the district court docket sheet.

Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 2 of 8 - 2 -
this motion for supplemental relief. As a result of the Fifth Circuit’s dismissal, this Court has jurisdiction to consider and grant this motion. B. Procedural History
On June 9, 2014, the United States and City submitted to this Court a proposed Consent Decree that resolved the United States’ claims against the City under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (Title VII). R. 3-5. The proposed Consent Decree includes injunctive relief and individual relief to qualified claimants, and requires the City to develop a new selection procedure for entry-level firefighters that complies with Title VII. R. 64:13-14. This Court approved the Consent Decree on November 7, 2014, following a fairness hearing conducted on October 29, 2014. R. 64.
Under Part III.C.6 of the Consent Decree, the United States may review the City’s proposed selection procedures before they are used to assess compliance with Title VII. R. 64:14. To ensure compliance with Title VII, the United States may also review (1) applicants’ performance on the new selection procedures, and (2) the manner in which the City intends to use those selection procedures to make hiring decisions. R. 64:15-17. If the United States objects to the City’s proposed procedures and/or manner of use because it does not believe either comports with Title VII, the United States and the City will seek to resolve the matter. R. 64:1417. If the City and United States cannot agree on a resolution, either the United States or the City may seek judicial resolution through the Decree’s dispute resolution procedures. R. 64:1417, 37-38.
Prior to the October 29 fairness hearing, the proposed intervenors moved to intervene in this litigation. R. 16-17. This Court denied intervention as of right and permissive intervention, and denied the proposed intervenors’ motion for reconsideration. R. 38, 44. On October 8,

Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 3 of 8 - 3 -
2014, the proposed intervenors filed a notice of appeal of the denial of intervention. R. 45. After this Court approved the Consent Decree on November 7, 2014, the proposed intervenors also filed a notice of appeal challenging the Court’s approval and entry of the Consent Decree. R. 70. Earlier this year, the proposed intervenors filed their opening brief, and the United States and the City filed their respective responsive briefs, in the Fifth Circuit. C. Recent Negotiations And The Proposed Settlement
Beginning about February 23, 2015, the City and AFA engaged in negotiations for a new collective bargaining agreement (CBA) to replace the CBA between them that expired in September 2013. The scope of these collective bargaining negotiations has included discussions for a settlement of the issues raised by the proposed intervenors in their appeals.
The City and AFA reached a tentative agreement on terms for a new CBA on May 11, 2015. That tentative agreement has now been ratified by AFA’s members and approved by the Austin City Council (City Council). The United States did not participate in the collective bargaining negotiations and is not a party to the CBA.
Outside of their collective bargaining negotiations, the City and AFA have engaged in separate negotiations with the United States for a settlement of the issues raised by appellants in their appeals. As a result of these discussions, the movants have collectively agreed on a framework for resolution. Generally, in exchange for this Court’s approval of this request for supplemental relief, the proposed intervenors will agree to not reinstate their appeals with the Fifth Circuit (United States v. City of Austin, Nos. 14-51132 and 14-51276 (5th Cir.)).
Specifically, the proposed order for supplemental relief will give AFA the same rights to participate in the resolution of any objections raised by the United States under Parts III.C.6 and IV of the Consent Decree as the City has under these Parts with two limitations. First, any data

Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 4 of 8 - 4 -
provided to AFA by the City or United States regarding applicants’ test performance will not include personal identifying information; and second, AFA shall not have the right to appeal any order of the District Court issued under Part IV of the Consent Decree. This order shall remain in full force and effect until the expiration of the Consent Decree.
After the movants reached an agreement on the terms of a settlement and the ratification and approval process for the CBA had begun, the movants sought a stay of the appellate proceedings. On May 21, 2015, the Fifth Circuit issued an order that dismissed the two pending appeals without prejudice for 180 days. Exhibit 1. The proposed intervenors have an opportunity to seek reinstatement of the appeals should the settlement’s terms not be fulfilled. Absent reinstatement or an extension of the 180-day time limit, the appeals will be deemed dismissed with prejudice. Moreover, the Court stated, “[d]ismissal was granted with the intent of divesting the Court of Appeals of jurisdiction so that the District Court can exercise its jurisdiction in effectuating the settlement.” Exhibit 1 at 2. D. The Movants’ Request For Relief
Federal Rule of Civil Procedure 60(b)(6) permits a district court to grant relief from a final judgment or order for any reason other than the enumerated reasons of Rule 60(b)(1)-(5) “that justifies relief.” Rule 60(b)(6) is a “catch-all provision” that affords relief under “extraordinary circumstances.” Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002). Rule 60(b)(6) is a “grand reservoir of equitable power to do justice in a particular case.” Borne v. River Parishes Hosp., LLC, 548 F. App’x 954, 959 (5th Cir. 2013) (citation omitted). In addition, the Fifth Circuit has identified several factors to consider when evaluating a motion under Rule 60(b)(6), including a “liberal[] constru[ction] in order to achieve substantial justice” and “whether the motion [is] made within a reasonable time.” Ibid.

Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 5 of 8 - 5 -
Here, granting this motion will give AFA an opportunity to participate in the resolution of any objections raised by the United States under Title VII regarding the City’s proposed selection procedures for entry-level firefighters. This resolution, which is requested by all of the parties and proposed intervenors, will also promote judicial economy by foregoing the reinstatement of the two previously pending appeals. Finally, granting this motion will avoid potential delays in implementing the Decree due to continuation of the appellate litigation. Accordingly, granting this motion is consistent with the purposes of Rule 60(b)(6) and the equitable powers of this Court.
The movants believe that this Court may grant the requested supplemental relief without the need for notice to individuals who filed claims for individual relief or others, or an additional fairness hearing to address this specific request.2 See Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 641-642 (5th Cir.) (district court did not abuse its discretion when it modified a settlement agreement’s plan of allocation without providing new notice to class members or a second fairness hearing), cert. denied sub nom., Schuleman v. Union Asset Mgmt. Holding A.G., 133 S. Ct. 317 (2012). Here, this supplemental relief addresses an issue raised only by the appellants when they sought to intervene, and not raised by any other persons who received notice of the October 29 fairness hearing. The appellants represent almost one-third of all individuals (11 of 38) who filed objections prior to the district court’s initial fairness hearing. This supplemental relief will not affect the specific individual relief that will be afforded to qualified Claimants.
For the foregoing reasons, movants respectfully request that this Court enter the proposed order for supplemental relief.
2 This request has no bearing on the Court’s future consideration of individual backpay awards pursuant to Part III.F.8 of the Decree.

Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 6 of 8 - 6 -

Date: June 5, 2015
WEISBART SPRINGER HAYES LLP
s/ Kevin J. Terrazas KEVIN J. TERRAZAS State Bar No. 24060708 Email: kterrazas@wshllp.com SARA E. JANES State Bar No. 24056551 Email: sjanes@wshllp.com NICOLE S. LEFAVE State Bar No. 24085432 Email: nlefave@wshllp.com 212 Lavaca Street, Suite 200 Austin, Texas 78701 Telephone: (512) 652-5780 Fax: (512) 682-2074 B. CRAIG DEATS State Bar No. 05703700 DEATS, DURST, OWEN & LEVY, PLLC 1204 San Antonio Street, Suite 203 Austin, Texas 78701 Telephone: (512) 474-6200 Fax: (512) 474-7896
Counsel for the AFA and Individual Proposed Intervenors

Respectfully submitted,
ANNE L. MORGAN, ACTING CITY ATTORNEY B. LEE CRAWFORD, JR., DIVISION CHIEF
s/ B. Lee Crawford, Jr. ANNE L. MORGAN State Bar No. 14432400 B. LEE CRAWFORD, JR. State Bar No. 05018520 City of Austin Law Department Post Office Box 1088 Austin, Texas 78767-1088 Telephone: (512) 974-2268 Fax: (512) 974-2894 Email: lee.crawford@austintexas.gov R. LAWRENCE ASHE, JR. State Bar (Georgia) No. 024500 Email: rla@phrd.com PAUL R. BARSNASS State Bar (Georgia) No. 597107 Parker, Hudson, Rainer & Dobbs LLP 1500 Marquis Two Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Telephone: (404) 523-5300 Fax: (678) 533-7730 Email: prb@phrd.com
Counsel for the City of Austin
VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division
DELORA KENNEBREW Chief, Employment Litigation Section Civil Rights Division
s/ Shayna Bloom TREVOR BLAKE DC Bar No. 974319 Special Litigation Counsel Email: trevor.blake@usdoj.gov SHAYNA BLOOM

Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 7 of 8
- 7 -
DC Bar No. 498105 Email: shayna.bloom@usdoj.gov Trial Attorney Employment Litigation Section United States Department of Justice 950 Pennsylvania Avenue, NW, PHB Suite 4500 Washington, D.C. 20530 Telephone: (202) 305-1540 Fax: (202) 514-1005
Counsel for the United States of America

Case 1:14-cv-00533-LY Document 83 Filed 06/05/15 Page 8 of 8
CERTIFICATE OF SERVICE I certify that on June 5, 2015, I electronically filed the foregoing JOINT MOTION BY THE UNITED STATES; CITY OF AUSTIN, TEXAS; AND PROPOSED INTERVENORS FOR SUPPLEMENTAL RELIEF, including an attachment and proposed order, with the Clerk of the Court, U.S. District Court, Western District of Texas, using the CM/ECF system, which will then send a notification of electronic filing to all counsel of record who have registered to use the Court’s CM/ECF system.
/s/ Shayna Bloom SHAYNA BLOOM Trial Attorney United States Department of Justice Civil Rights Division Employment Litigation Section

 
 . . Case 1:14-cv-00533-LY Document 84 Filed 06/05/15 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

F IL E E)
2115 JUN -5 PH 2: I9

UNITED STATES OF AMERICA,

Plaintiff,

Civil Action No. l:14cv533-LY

CITY OF AUSTiN, TEXAS,

Defendant.

ORDER GRANTING SUPPLEMENTAL RELIEF

Having considered the movants' Joint Motion for Supplemental Relief (Docket

the Motion is GRANTED subject to the following terms:

(1) The Court grants the International Association of Firefighters, Local 975, rights to

participate with the United States and City of Austin (City) in discussions and resolution

pursuant to Parts III.C.6 and IV of the Consent Decree entered by this Court on November 7,

2014 (Consent Decree), as described below. This participation will arise only if the United

States objects in writing to the City's proposed selection device(s), to include the manner of use

of any selection device(s), for entry-level firefighters. This Order should be read in conjunction

with Parts III.C.6 and IV of the Consent Decree. To the extent this Order is inconsistent with the

Consent Decree, this Order controls.

(2) Part III.C.6. of the Consent Decree is modified to read as follows:

The City will use lawful selection procedures to select qualified applicants for hiring into

the position of fire cadet as set forth below.

a. If a Selection Device(s) used by the City has statistically significant disparate impact

on African Americans or Hispanics, it must be shown to be job related for the fire cadet position

. . Case 1:14-cv-00533-LY Document 84 Filed 06/05/15 Page 2 of 7
in Austin and consistent with business necessity in accord with Title VII. In deciding to use a Selection Device, the City shall make reasonable efforts to explore the availability of Selection Devices which have been shown to reduce or eliminate disparate impact upon AfricanAmericans and Hispanics in the selection of fire cadets without diminution ofjob-relatedness. If it identifies such alternatives, it must use them, subject to any objections raised by the City to the cost of such alternatives, which shall be resolved by agreement of the Parties (collectively, the
United States and the City) and the International Association of Firefighters, Local 975 (AFA) or by the Court if the Parties and AFA cannot agree.
b. The City will inform the United States not later than 60 days before any planned administration of a new Selection Device(s). At that time, the United States may request all
information available to the City about the development and/or validation of the proposed Selection Device(s), including but not limited to: a description of the Selection Device(s); a description of the manner in which the City intends to use the Selection Device(s); the known or likely disparate impact, if any, of the intended use of the Selection Device(s); all validation studies, analyses, test plans, and any other evidence ofjob relatedness of the Selection Device(s)
available to the City, including data underlying such studies, analyses, test plans, and other
evidence; and any basis for a conclusion that the City's proposed use of the Selection Device(s) is job related for the fire cadet position and consistent with business necessity. The City's submission shall also identify any other Selection Devices, as well as any other manners of using the chosen Selection Device(s), considered by the City. If the United States does not notify the City in writing that the United States has an objection within 15 business days of receiving the
City's complete submission, the City may administer the Selection Device(s). Any written objection by the United States that is sent to the City shall be sent simultaneously to AFA. All

. . Case 1:14-cv-00533-LY Document 84 Filed 06/05/15 Page 3 of 7 -3-
notices described herein that are provided to AFA by the City or the United States shall be sent to the following address:
Austin Firefighters Association, Local 975 Attention: AFA President 7537 Cameron Road Austin, Texas 78752 c. After administering any Selection Device(s) and before announcing the results to candidates or deciding upon the method of use, in recognition that the job-relatedness and validity of an exam can often be evaluated fully only after the exam has been administered, the City will provide to the United States in Excel format the name, unique identifier, race, national origin, exam score and any applicable sub-scores, and test form identification for all applicants to whom the Selection Device was administered. The City shall submit simultaneously to AFA the same information identified in the foregoing sentence except that the City shall not provide the
names and unique identifiers of any applicant to AFA. At the same time, the City will cause its testing vendor to provide to the United States the answer keys and test question responses for
each candidate for each Selection Device. The City will provide AFA aggregated data that
identifies the adverse impact, if any, based on applicants' race and ethnicity, for each test question of each Selection Device. The City, United States, and AFA will maintain all data
provided pursuant to this paragraph subject to appropriate security and confidentiality measures
consistent with Paragraph h. If the United States determines that the City's proposed use of the
Selection Device(s) does not comply with Title VII and with this Decree, the United States shall notify the City and AFA in writing within 15 business days of receiving the above-listed information that the United States objects to the City's use of the Selection Device(s).
d. Upon completion of the administration of all components of the City's fire cadet
selection process upon which any eligibility list may be based, the City will provide to the

. S Case 1:14-cv-00533-LY Document 84 Filed 06/05/15 Page 4 of 7 -4-
United States in Excel format the name, unique identifier, race, national origin, scores and
applicable sub-scores on all components of the selection process, any applicable combined
and/or final scores, military or other bonus points, and ranks for each applicant who participated
in the selection process, if applicable. The City shall submit simultaneously to AFA the same
information identified in the foregoing sentence except that the City shall not provide the names
and unique identifiers of any applicant to AFA. If after the administration of all components of
the City's selection process on which any eligibility list may be based, the United States determines that the City's selection process does not comply with Title VII and with this Decree,
the United States shall notify the City and AFA in writing within 15 business days of receiving the above-listed information that the United States objects to the City's selection process.
e. Any objection(s) to the City's use of a Selection Device or overall selection process made by the United States pursuant to Subparagraphs c or d, above, shall be resolved by the Parties and AFA under the dispute resolution procedures in Part IV of this Decree. If either Party or AFA submits any such objection(s) to the Court for resolution under Part IV.A, the Parties and AFA agree that the burdens of proof set forth in 42 U.S.C. § 2000e-2(k) shall apply in resolving such objection(s). If the Court determines that the City's proposed Selection Device, manner of use or overall process does not comply with Title VII, the City shall not use that Selection
Device in that maimer or shall not employ that process without whatever modifications the Court
may order. AFA shall have no right of appeal of any order issued by this Court concerning the resolution of any objection. If an objection to the City's use of a Selection Device for the fire cadet position or overall hiring process for the fire cadet position is made by the United States pursuant to this Paragraph, no person shall be certified for appointment as a fire cadet except by written agreement of the Parties and AFA or order of the Court.

. . Case 1:14-cv-00533-LY Document 84 Filed 06/05/15 Page 5 of 7
f. Following the administration of a fire cadet hiring process that was subject to the
review and objection procedures set forth in Subparagraphs a-e, above, the City shall be authorized to administer and use the Selection Device(s) agreed to by the Parties pursuant to Subparagraph b above, or ordered by the Court pursuant to Subparagraph e, above, during the
life of this Decree, subject to the requirements of Subparagraph g, below. For any subsequent administrations, the City will provide the United States and AFA with at least 90 days' notice of its intent to announce a new fire cadet selection process. The City's notice shall state whether the
City intends to administer the same Selection Devices and overall selection processes as previously agreed to by the Parties and AFA or ordered by the Court, or whether it intends to
make any changes to the Selection Devices or their manner of use. g. If the City intends to make any changes to the Selection Devices or their manner of use
in a subsequent administration of a fire cadet hiring process, the review and objection procedures set forth in Subparagraphs b through e, above, shall apply. If the City does not intend to make any changes to the Selection Devices or their manner of use in a subsequent administration of a fire cadet hiring process, including the limited use of the 2013 exam set forth in this Decree, the
City will produce to the United States and AFA the data and information required by Subparagraphs b through d, above, for the subsequent administration.
h. Due to the importance of test security, along with concerns about the proprietary nature of test development materials, all correspondence and communications between and among the
Parties and AFA and their test developers, consultants and/or experts in connection with performance of the obligations set forth in Subparagraphs a through d, above, shall be held confidential and shall not be disclosed to any third party in the absence of a Court order

. . Case 1:14-cv-00533-LY Document 84 Filed 06/05/15 Page 6 of 7
compelling such disclosure, or the written consent of the adverse party, or as otherwise required
by law.
(3) Part IV of the Consent Decree is modified to read as follows:
IV. DISPUTE RESOLUTION A. The Parties shall attempt in good faith to resolve informally any disputes that arise
under this Decree. The Parties and AFA will similarly attempt in good faith to resolve informally
any objections that are raised by the United States pursuant to Part III.C.6. If the Parties and
AFA, as appropriate, are unable to resolve the dispute expeditiously, either party or AFA may submit the disputed issue to the Court for resolution upon 15 days' written notice to the other entity(ies), as appropriate, unless a different process or time period is specified in the applicable
section of this Decree. B.1. Access To Retained Testing Experts. The Parties and AFA agree that good faith
efforts to resolve any dispute may include an opportunity for each entity to interview or depose each others' expert who is retained to assess the City's selection procedures (retained testing expert). Upon either a Party or AFA's request, any Party or AFA must make its retained testing expert available for interview or deposition at a mutually agreeable time and location.
2. Access To Individuals With Knowledge Regarding Disputes. With respect to individuals other than a retained testing expert, within 30 days after the United States so requests in writing, the City shall make available in Austin for interview or deposition (at the United
States' option) any agent, employee or official of the City who the United States reasonably believes has nonprivileged knowledge of information necessary to verify the City's compliance with the terms of this Decree or to resolve a dispute arising under this Decree. If, after completing discovery, the United States maintains that the City has not complied with the Decree

Case 1:14-cv-00533-LY Document 84 Filed 06/05/15 Page 7 of 7
a.
or the dispute still exists, within ten days after the United States communicates that fact to the
City (and AFA, if the dispute or noncompliance concerns matters covered by Part III.C.6), the
City and AFA may interview or depose any witness with knowledge regarding the matter in dispute. Under no circumstances may the City or AFA interview or depose any officials, agents
or employees of the U.S. Department of Justice other than the United States' retained testing expert in this process in the absence of further Court order for good cause shown.
(4) This Order is not intended to, and does not, affect or modify any other provisions of the Consent Decree, all of which shall remain in full force and effect as approved by the District Court on November 7, 2014.
(5) This Order remains in full force and effect until the expiration of the Consent Decree.
Date:

 
 Case 1:14-cv-00533-LY Document 63 Filed 11/07/14 Page 1 of 34

FILED

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

2014 NOV -7 PM 12: Q&

AUSTIN DIVISION

UNITED STATES OF AMERICA,

§

DiSTRiCT COURT
BY- ES1ERN DSTRCT OF TEXAS

PLAiNTIFF,

§

V.

§ CAUSE NO. 1:14-CV-00533-LY

§

THE CITY OF AUSTIN, TEXAS,

§

DEFENDANT.

§

§

FINDINGS OF FACT, CONCLUSIONS OF LAW. AND FINAL ORDER APPROVING CONSENT DECREE

This matter came before the Court on October 29, 2014, for a Fairness Hearing and hearing on the Joint Motion for Final Approval of the Consent Decree (Doc. #46), filed by Plaintiff United States of America ("United States") and Defendant City of Austin ("City") (collectively, the "Parties"). At the October 29 hearing, the Court heard presentations from the United States and the City; legal counsel representing Local 975 of the International Association of Firefighters ("Local 975") and 10 individual members of Local 975; and one other individual, Brendan Flood.' No other persons present at the October 29 hearing expressed an interest in making a presentation to the Court.2

Local 975 and the 10 incumbents who objected to the Decree also submitted a Response to the Parties' Joint Memorandum in Support of Final Approval of the Decree and a declaration by Dr. Winfred Arthur on October 29, 2014 (Doc. #6 1). Because the Union and individual incumbents are not parties to this case, they are subject to the Decree-imposed deadline for submitting objections, which was September 29, 2014. Thus, the brief and declaration are untimely.. Regardless of when these submissions were filed, the Court has considered them and is approving the Decree nonetheless.
2 As more fully described below, individuals potentially interested in the Decree were given notice of the October 29 Fairness Hearing by postal mail, email, and/or other means. All objectors present at the hearing were given the opportunity to participate and explain their

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In addition to these presentations, the Court has received substantial evidence from the Parties and the objectors concerning the fairness, adequacy, and reasonableness of the proposed Consent Decree ("Decree"). These submissions include declarations from Dr. Bernard R. Siskin, Dr. David P. Jones, Dr. Winfred Arthur, and other individuals. In addition, the Court has received and considered a total of 38 objections (Doc. #s 48-57) submitted under the notice provisions of the Decree. Finally, the Court has reviewed the briefing submitted by the Parties and the materials submitted by the objectors, and has considered the other relevant portions of the record in this action.
Considering all of the evidence presented in support of and opposition to the proposed Decree, and the authorities and arguments presented by counsel for the Parties and the objectors, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
A. Background of this Litigation
1. In April 2013, the United States notified the City that it had commenced an investigation into the entry-level hiring practices used by the Austin Fire Department ("AFD") in 2012 and 2013 (Doc. #5 at ¶ 6).
2. Over the next five months, the City produced thousands of pages of information requested by the United States, engaged outside legal counsel and an industrial/organizational psychology expert, and conducted its own extensive review of the 2012 and 2013 AFD hiring
opposition to the Decree. Only legal counsel for Local 975 and the 10 members of Local 975, and Mr. Flood, elected to do so. Mr. Flood is a Caucasian male.

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processes (Doc. #5 at ¶'J[ 17-23). The City provided the United States with all requested documents and data in its possession during the investigation.
3. At the time the United States commenced its investigation, the City was conducting written and oral assessments of applicants as part of its 2013 entry-level hiring process at AFD. As a result of concerns expressed by the United States to the City about the potential for disparate impact in that hiring process, the City elected in the summer of 2013 to suspend the 2013 hiring process pending the outcome of the United States' investigation.
4. In September 2013, the United States notified the City of the findings from its investigation. The United States advised the City that it found the City's use of cognitive/behavioral test scores as a pass/fail device in its 2012 hiring process, and its rank order practice of selecting applicants on the basis of their total scores (reflecting written test scores and interview performance and, where applicable, additional military service points) in its 2012 hiring process, had a statistically significant adverse impact on African-American and Hispanic applicants. The United States also advised the City that it did not consider the information provided by the City sufficient to establish that either the pass/fail use of the cognitive/behavioral test or the rank order practice used in 2012 were defensible as job-related and consistent with business necessity under Title VII.
5. The United States further advised the City that it believed the rank order practice (based on total scores reflecting written test and interview performance and, where applicable, additional military service points) which the City intended to use in the 2013 hiring process would have a statistically significant adverse impact on both African-American and Hispanic applicants in that hiring process. The United States also advised that the information it had

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received from the City and its 2013 test developer did not demonstrate that the rank order practice was job-related and consistent with business necessity under Title VII.
6. Based on these findings, the United States invited the City to engage in settlement negotiations to resolve the alleged Title VII violations in the City's 2012 and 2013 hiring processes at AFD. While the City maintains that it has defenses to these alleged Title VII violations, the City accepted the invitation from the United States to attempt to resolve the claims. The City's decision to enter into settlement negotiations with the United States was based on its assessment of the strengths and weaknesses of its potential defenses to the claims asserted by the United States, as well as its need to hire additional firefighters as quickly as feasible.3
7. Over the following months, the United States and the City engaged in settlement negotiations with the goal of determining whether the Parties could resolve the alleged Title VII violations through a consent decree. Both Parties were represented in these negotiations by able and highly experienced legal counsel with significant experience in complex employment discrimination litigation, including disparate-impact litigation and litigation involving testing and other personnel-selection devices.
8. In addition to its negotiations with the City, the United States also had multiple, extensive communications both in writing and in person with Local 975 concerning the terms of the potential consent decree between the United States and the City. When the United States and the City had reached tentative agreement on key terms of the Decree, counsel for the United
With regard to its need to hire additional firefighters, the City produced credible evidence, uncontested by either the United States or the objectors, of a serious, longstanding need to hire additional qualified firefighters. As of the time the United States commenced its investigation in April 2013, there were 33 vacant firefighter positions in AFD (Doc. #47-11, p. 2). As of October 10, 2014, shortly before the Fairness Hearing, the number of vacant firefighter positions in AFD had grown to 93, and was continuing to grow (Id.). The City has commissioned no new firefighters since July 28, 2013 (Id.).

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States, along with its industrial/organizational psychology expert, Dr. David Jones, traveled to Austin and met with representatives of Local 975, their legal counsel, and their industrial/organizational psychologist, Dr. Winfred Arthur (Doc. #5, pp. 30-33). As a follow up to that meeting, the United States provided Local 975 with the information and data used by the United States to arrive at its findings (Id.). After receiving that information from the United States, Local 975 provided written comments and requests for modifications to several items of the tentative agreement between the United States and the City. Some of Local 975's suggested changes were incorporated into the Decree, while others were not (Id.).
9. In early 2014, the United States convened an all-day meeting in Austin, facilitated by an experienced mediator, at the specific request of Local 975. Local 975 representatives and their legal counsel, legal counsel for the United States from the U.S. Department of Justice, legal counsel for the U.S. Equal Employment Opportunity Commission, and representatives and legal counsel for the City all attended this meeting. During this meeting, the United States again heard Local 975's concerns and attempted to resolve them through negotiation (Id.).
10. The United States and the City concluded their negotiations in May 2014 by agreement to settle all alleged violations of Title VII found by the United States in the 2012 and 2013 hiring processes. The Court finds that each of the Parties had adequate information necessary to make a reasoned, informed judgment about the alleged prospective worth of the claims asserted by the United States prior to entering into settlement negotiations.
11. The terms of the Parties' agreement are set forth in the Decree for which the Parties now seek approval from this Court (Doc. # 5-1). The Parties were able to agree upon these terms only after vigorous, arms-length negotiations between their counsel. The Decree was
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approved by both the United States and the Austin City Council prior to commencement of this action.
12. On June 9, 2014, pursuant to Section 707 of Title VII, 42 U.S.C. § 2000e-6, the United States commenced this action against the City to enforce Title VII. The United States' Complaint alleges that the City has engaged in unlawful employment practices by utilizing selection procedures that have the effect of depriving or tending to deprive African Americans and Hispanics of employment opportunities because of their race and/or national origin, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) (Doc. #1). The Complaint does not include any allegation of intentional discrimination (Id.).
13. In its Complaint, the United States challenges two aspects of the 2012 selection process used by the City to screen and select entry-level firefighters: (1) the City's use of a written examination the NFSI4 as a pass/fail screening device ("2012 pass/fail practice"),5 and (2) the City's certification of applicants for hire in descending rank order based on a combination of their scores on the NFSI and a structured oral interview ("SOT"), plus military points if applicable ("2012 ranking practice") (Doc. #1).
14. The United States also alleged in its Complaint that the City's intended use of results of its 2013 firefighter selection process ("2013 process") would violate Title VII if the City used those results to hire firefighters (Doc. #1). That intended use was to process applicants for further consideration for hire based on a combination of their scores on a different written
National Firefighter Selection Inventory. The United States' challenge to the pass/fail practice includes two components the use of a nominal cutoff score of 70 on the NFSI to determine whether a candidate passed or failed the test, and the use of an effective cutoff score of 75.06 to determine whether a candidate who passed the NFSI could proceed to the 2012 SOl.

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examination the NELF6 with their scores on the 2013 SOT, which differed from the 2012 SOT, plus military points if applicable (Doc. #1).
15. On the same day as the Complaint was filed, the Parties filed a Joint Motion for Provisional Entry of Consent Decree and Scheduling of the Fairness Hearing on the Consent Decree (Doc. #4). In support of that motion, the Parties also filed a memorandum of law (Doc. #5), the proposed Decree itself (Doc. #5-1), and other supporting materials (Doc. #s 5-2 to 5-5). On June 11, 2014, the Court entered an order preliminarily approving the Consent Decree (Doc. #9). On June 12, 2014, the Court entered an order scheduling the Fairness Hearing for October 29, 2014 (Doc. #13).
B. Notice of the Fairness Hearing 16. Beginning in August 2014, well in advance of the October 29, 2014 Fairness
Hearing, the City commenced a notice process as prescribed by the Decree and in accord with
Section 703(n) of Title VII, 42 U.S.C. § 2000e-2(n) (Doc. #47-1 atfi 6-9).
17. Specifically, pursuant to Paragraph TII.D.3 of the Decree, the City, with assistance from the claims administrator retained by the City as provided in the Decree, sent notice of both the Decree and the Initial Fairness Hearing, along with instructions for filing objections:
a. to each Claimant identified as preliminarily eligible for relief under Paragraph III.F. 3 of the Decree;
b. to each applicant in the City's 2013 process who took and completed both the NELF examination and the 2013 SOI; and
c. to each Fire Cadet and Firefighter at the Austin Fire Department.
6 National Entry-Level Firefighter exam.
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(Doc. #47-1 at ¶9[ 4-7). 18. The City itself sent notice to Local 975 (Doc. #47-5 at 9[ 5). The e-mailed and
mailed notices provided a toll-free telephone number at the Department of Justice that interested individuals could call for information about objecting to the Decree (Doc. #47-1 at ¶ 9).
19. In further compliance with the notice provisions set forth in Paragraph III.D of the Decree, the City provided a link on its public web site to the Decree and its appendices (Doc. #47-5 at ¶ 7).
20. The City also caused a notice of the Decree and the Fairness Hearing to be published in the Wednesday, Friday, and Sunday editions of the Austin American-Statesman on August 20, 2014 through August 24, 2014, over a month before the deadline for submitting objections. The newspaper notice included a toll-free number for the Claims Administrator so that individuals who had not received objection forms could request them (Doc. #47-1, p. 4).
21. Finally, the City made paper copies of the Decree available at the City Clerk's office for distribution to interested individuals (Doc. #47-5, p. 4).
22. The substantial costs associated with all such notices have been paid by the City. 23. The Court finds that the notice was reasonable, the best practicable notice under the circumstances of this case, and effective.
C. The 2012 Selection Process 24. In 2012, the City used a process to screen and select applicants for the position of
fire cadet, which is the entry-level position in the AFD. In that selection process, applicants who met the minimum qualifications set by the City were initially given two written examinations: the NFSI, which is intended to test cognitive and non-cognitive skills and abilities; and the

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Integrity Inventory ("12"), which is intended to test counterproductive work behaviors (Doc. #5 atJ[8).
25. The NFSI was administered on a pass/fail basis, with a nominal cut-off score of 70 on the examination (Doc. #1). The City invited only the top 1,500 scorers on the NFSI who also passed the 12 to proceed to the next step in the hiring process, which was the SOl used in 2012 (Id.). No one who scored less than 75.06 on the NFSI proceeded to the next step (Id.). As Dr. Jones explained in his declaration, this meant that 75.06 operated as an effective cutoff score on the NFSI because candidates who scored lower were eliminated from further consideration, even if they nominally passed the NFSI (Doc. #3-6 at ¶ 29). Those who passed both written exams and the SOl were given composite scores made up of 2/3 SOl score and 1/3 NFSI score (Doc. #1). The City then added military points where applicable to arrive at final scores, and placed applicants in descending rank order on a preliminary eligibility list based on these scores (Id.).
26. The top group of candidates on the preliminary eligibility list was then given an additional battery of final pre-employment assessments, including a physical ability test, drug screen, background check, medical evaluation, and psychological evaluation (Doc. #1). Those candidates who successfully passed each of these pre-employment assessments were placed in descending rank order on a final eligibility list based on their test scores computed as described above (Id.).

i.

Impact of 2012 Process

27. The City administered the NFSI in 2012 to approximately 1,114 white candidates, 328 African-American candidates, and 902 Hispanic candidates (Doc. #5-2 at ¶ 2).

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28. Dr. Siskin has averred that generally statisticians, testing experts, and social scientists consider a disparity to be statistically significant if the probability of the disparity occurring randomly is 5% or less (Doc. #5-2, p. 3). That probability standard, according to Dr. Siskin, is equivalent to 1.96 units of standard deviation (Id.). The more units of standard deviation there are the less likely the disparity is to have occurred by chance.
29. The United States has presented credible evidence that African-American and Hispanic candidates obtained NFSI scores at or above 75.06 at statistically significantly lower rates than white candidates. Its statistical expert, Dr. Bernard Siskin, concludes in his declaration that the disparity in effective pass rates between African-American and white candidates equates to 9.72 units of standard deviation (Id.). Dr. Siskin also concludes that the disparity in effective pass rates between Hispanic and white candidates on the 2012 NFSI equates to 8.75 units of standard deviation (Id.)
30. The United States has also presented credible evidence that the City's determination and use of final scores to certify candidates in descending rank order separately resulted in statistically significant disparate impact upon African Americans and Hispanics in 2012. Dr. Siskin concludes in his declaration that African Americans and Hispanics who passed the NFSI received statistically significantly lower (i.e., worse) ranks on eligibility lists than whites (Doc. #5-2). Dr. Siskin's analysis of the City's ranking practice found that the mean scores achieved by African-American candidates were statistically significantly lower than those achieved by white candidates, with a difference equivalent to 5.05 units of standard deviation. Dr. Siskin's analysis of the City's ranking practice also found that the mean scores achieved by Hispanic candidates were statistically significantly lower than those achieved by white candidates, with a difference equivalent to 4.96 units of standard deviation (Doc. #5-2, p. 4).
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31. In comparing the actual ranks of the candidates, Dr. Siskin found that the AfricanAmerican candidates were ranked statistically significantly lower than the white candidates with a difference equivalent to 4.18 units of standard deviation. Also, Dr. Siskin found that the Hispanic candidates were ranked statistically significantly lower than the white candidates with a difference equivalent to 4.88 units of standard deviation. (Doe. #5-2, p. 4).
32. Dr. Siskin also examined the rates at which various groups were reached for processing for hire. He found that the difference in the rates at which white applicants as compared to African-American and Hispanic applicants were reached for further processing were statistically significant, equivalent to 2.81 units of standard deviation (white vs. African American) and 2.04 units of standard deviation (white vs. Hispanic).
33. While the City does not contest Dr. Siskin's statistical analysis, it challenges the practical significance of these disparities (Doe. #30 at ¶ 18).
34. Dr. Siskin calculates that, absent the disparate impact of the City's selection process on a pass/fail and rank-order basis, an estimated additional 12 African Americans and 18 Hispanics would have been hired as entry-level fire cadets in Austin (Doe. #5-2, p. 5).

ii.

Validity of the 2012 Selection Process

35. The United States has presented credible evidence challenging the job-relatedness and business necessity of the 2012 hiring process. From his analysis, Dr. Jones concludes that the City has not shown that either its decision to invite only the top 1,500 NFSI scorers (who also passed the 12) to take the SOT assessment, or its decision then to use descending rank order to select applicants from eligibility lists, is sufficiently job-related or consistent with business necessity to comply with Title VII, based upon professionally accepted validation standards (Doe. #5-3 at ¶(J[ 48, 53). Dr. Jones also states that when the 2012 test developer conducted a

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local criterion-related validity study of the NFSI in Austin, the developer found no meaningful relationship between NFSI scores and the job performance of incumbent Austin firefighters (Doc. #5-3 at ¶ 33).
36. Dr. Jones also found that the NFSI was designed and previously criterion-related validated as a two-and-a-half hour examination, but the City inadvertently erred in its administration of the test by reducing the time limit to two hours (Doc. #5-3 at ¶ 42). Based on his analysis, Dr. Jones credibly concluded that there is insufficient evidence of transportable criterion-related validity for the City's use of the NFSI in 2012 because of the administrative error (Id. at ¶ 43). Dr. Jones also credibly concluded that the City's pass/fail use of the NFSI with an effective cut-off score of 75.06 did not distinguish meaningfully among those candidates who can be expected to perform the job of entry-level firefighter better, because the City, through the test developer, did not utilize a professionally appropriate method to establish that cutoff score (Id. at ¶9[ 44-48).
37. Dr. Jones found that the national validation study report submitted by the 2012
test developer, I/O Solutions, hc., reports that differences between the average scores achieved
by City of Austin African-American, Hispanic, and white candidates were essentially equal in magnitude to those noted by the test vendor in testing nearly 17,000 candidates of the same ethnicities in other fire agencies where no evidence of time limit errors were noted (Doc. #47-10 at ¶ 33). The 110 Solutions, Inc. national validation study shows adverse impact upon both African-American and Hispanic candidates in the group of more than 17,000 candidates similar to that noted by the City of Austin in 2012 (Id.).
38. The City, on the other hand, contends that the 2012 hiring process was job-related and consistent with business necessity (Doc. #30 at ¶ 36). The City contends that its test
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developerhO Solutions, Inc., an industrial/organizational psychology consulting firmand its
organizational/industrial psychologist expert, Dr. Nita French, concluded that the 12 test was beneficial and defensible. The City argues that the 12 was shown to be sufficiently job-related for Austin firefighters, that local and archival criterion-related validation studies supported its use, and that published scientific literature confirms that integrity tests are valid predictors of job performance (Doc. #16-4 at ¶ 12). According to the City, in her report on the 2012 hiring process, Dr. French also concluded that the NFSI is a valid predictor of firefighter performance, both in the fire cadet academy training and on the job (Id. at 20). The City further contends that Dr. French also concluded that the 2012 SOl had many features of the best interview assessments, and that available evidence suggests that the interview was content valid and conducted appropriately (Id. at 22).
39. In this lawsuit, the United States has neither challenged, nor conceded the validity of, the 12.
40. The City contends that there are no less adverse, but equally valid, alternatives available to the 2012 hiring process (Doc. #30 at ¶ 36).
41. The Court finds that resolution of these issues in the 2012 hiring process through contested litigation would likely require many months (or longer) of costly litigation, with substantial risks and expenses to both sides.
D. The 2013 Selection Process 42. The 2013 selection process was underway when the United States notified the
City of its investigation in April of that year. In 2013, the City used a different test developer and administered a different cognitive/behavioral test known as NELF, along with a different SOT (Doc. #5-3 at ¶ 54).
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i.

Impact of the 2013 Process

43. The United States has presented credible evidence that the NELF and 2013 SOl, in combination with the City's planned method of use, would result in statistically significant disparate impact against both African Americans and Hispanics based on the rank-order method that the City planned to use (Doc. #5-2, pp. 5-7).
44. The City challenges the practical significance of the alleged disparity against both African-American and Hispanic applicants (Doc. #30 at ¶ 43).

ii.

Validity of 2013 Process

45. The City contends that even if the planned use of the 2013 test would have resulted in adverse impact, the 2013 hiring process was job-related and consistent with business necessity (Doc. #30 at ¶ 44). The City also contests the availability of less adverse, but equally valid, alternatives to the 2013 hiring process (Id. at ¶ 45).
46. The City has presented evidence, supplied by its 2013 test developer, that the 2013 process was job-related and consistent with business necessity. The United States contests the sufficiency of that evidence. Dr. Jones explains that the validity of the 2013 NELF for the AFD is premised on the transportability of a validity study performed by the test developer for a fire department in an unnamed, midwestern city (Doc. #5-3, pp. 17-18). Dr. Jones describes in his declaration the acceptable professional standards for transportability of validity studies as described in the Uniform Guidelines on Employee Selection Procedures, which is an accepted standard used by federal enforcement agencies (Id.). He credibly concludes that the 2013 cognitive NELF test administered in Austin did not meet professionally acceptable standards for validity transportability because, among other things, the test as administered in Austin was not

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the same test used for the underlying validation study in the unnamed midwestern city (Doc. #53 at ¶91 63-68).
47. Using data provided by the City's 2013 test developer, Dr. Jones conducted his own criterion-related validity analysis of the 2013 NELF test used in Austin, and was able to find modest but incomplete evidence of validity (Doc. #5-3 at ¶91 73-76). Based on that independent analysis, Dr. Jones also credibly concluded that the 2013 selection devices had an equally valid alternative use that would have resulted in less adverse impact (Id. at ¶9[ 77-82; see also Doc. #52 at ¶ 10). Specifically, Dr. Jones found that retaining two of the five cognitive subtests on the NELF predicted job performance substantially as well as retaining all five subtests and with less adverse impact (Doc. #5-3 at ¶91 78, 82; Doc. #5-2 at ¶ 10). Further, Dr. Siskin found that using the 2-part NELF instead of the 5-part NELF reduces adverse impact on African Americans and Hispanics to a statistically significant extent (Doc. #47-8 at 91 8).
E. Summary of Consent Decree 48. Under the terms of the Decree presented by the Parties, the City will adopt and
administer a new, lawful procedure for selecting qualified applicants for entry-level firefighter positions, subject to review by the United States for compliance with Title VII during the term of the Decree (Doc. #5-1 at 9[ III.C.6). The Court will resolve any disagreements between the Parties about a proposed procedure's lawfulness (Id.).
49. To address the immediate hiring needs of the City, the Parties have agreed that the City may use the scores from the cognitive portion of the 2013 NELF test,7 and the 2013 SOl
The decision to use all five subsections of the NELF test, rather than the two subsections identified by Dr. Jones, was a compromise made to address objections raised by the Union (Doc. #5, pp.30-32).
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scores, weighted in the same manner as the original design of that hiring process (i.e., 80% weighting to the SOT, 20% weighting to the cognitive portion of the NELF, plus military points) to establish a list from which it may, but is not required, to fulfill exigent hiring needs by hiring up to 90 entry-level fire cadets (Id. at App. B, ¶ 6).
50. The City will pay the gross sum of $780,000.00 in backpay to eligible Claimants. An individual is a Claimant eligible for backpay if he or she is African American or Hispanic, applied to be an entry-level fire cadet in Austin in 2012, was not hired, and either: (i) took and failed (with a score of less than 70) the 2012 NFSI but passed the 12; (ii) effectively failed the 2012 NFSI (with a score of less than 75.06) but passed the 12, or (iii) passed both the 2012 NFSI (with a score of at least 75.06), and the 12, but ranked too low to be selected for hire (Id. at ¶ III.F.3).
51. Claimants who are eligible for backpay will receive a portion of the total backpay award, which is within the range of recovery based on the salaries that 30 entry-level firefighters would have received if they had been hired in 2012 absent disparate impact, reflecting mitigation (Doc. #5-2 at ¶(J[ 13-14). The total of 30 is derived directly from the estimated hiring shortfall from 2012 (18 Hispanics and 12 African Americans) (Id. at ¶ 13). The $780,000 backpay settlement will be subject to payroll withholdings and distributed equitably among all eligible and interested Claimants, after a second fairness hearing on individual relief (Doc. #5-1 at ¶ III.F. 6.a).
52. The Decree obligates the City to ensure that 30 priority appointments are made to 12 African-American and 18 Hispanic Claimants from the 2012 hiring process (Doc. #5-1 at ¶ III.F.5.d). All Claimants who wish to compete for a priority appointment must successfully
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complete the new, lawful selection procedure adopted by the City under the Decree, and pass all other standard AFD pre-employment requirements (Id. at 9[ III.C.6).
53. Each Claimant who receives a priority appointment will be entitled to retroactive seniority dates, which will be the same as the dates the Claimants would have been hired and commissioned, respectively, but for the challenged practices that adversely affected the protected groups (Id. at App. A at ¶ 9). These retroactive seniority dates are the same hire and commission dates awarded to the actual applicants who were hired in 2012, and thus are in the range of recovery the United States could obtain if it prevailed at trial.
F. Summary of Objections to the Decree 54. The Court received a total of 38 separate objection forms, including several
duplicates (Doc. #s 48-57). Local 975 submitted objection forms on behalf of its president, Bob Nicks, and for the 10 individuals who earlier sought intervention in this lawsuit (these 11 objectors are collectively referred to as "Union Objectors") (Id.). The 11 objections filed by the Union Objectors are identical in all relevant particulars, with the only difference being the contact information listed for the individuals (Id.).
55. These 38 objections received fall within 10 different categories (Doc. #47-6): a. The Union Objectors, in addition to three other objectors, allege that there is insufficient evidence of intentional bias, insufficient evidence of adverse impact, and/or that there is sufficient evidence that the entry-level firefighter written exam is valid; b. The Union Objectors, as well as four other objectors, allege that, because the test(s) were fair in form, all applicants had a level playing field, and/or
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because all applicants experienced the same treatment, the Parties cannot

justify the relief provided by the Decree;

c. Three objectors assert that relief should be afforded to all applicants for

entry-level firefighter positions, not only African Americans and

Hispanics, and three raise concerns that they may no longer be eligible for

relief because of their age;

d. One objector states that the Decree constitutes reverse discrimination;

e. The Union Objectors, as well as two other objectors, argue that the Decree

will result in the hiring of unqualified individuals for entry-level

firefighter positions, and will, therefore, compromise public safety;

The Union Objectors, along with one other objector, allege that African

Americans and Hispanics who receive priority hiring will be stigmatized

by their co-workers and superiors as a result of the Decree;

g. The Union Objectors, plus one other objector, argue that the Decree

provides unearned seniority to priority hires;

h. Seven objection forms are either blank or provide insufficient information

as to the nature of the objection;

i.

Four individuals appear interested in relief, which is not appropriate for

this phase of the litigation, but these individuals do not make any

objection to the Decree, and

Six objection forms express support for the Decree and state no objection.

56. The Court allowed those who objected to the Consent Decree and their counsel

who wished to be heard to explain the bases for their objections.

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57. On the basis of the foregoing, this Court finds that the Consent Decree is lawful, reasonable and equitable, and that the relief provided by it is adequate and sufficient.
CONCLUSIONS OF LAW 58. Any finding of fact stated above that should be denominated a conclusion of law shall be deemed to be a conclusion of law. Likewise, any of the following conclusions of law that should be denominated a finding of fact shall be deemed a finding of fact. 59. The Court has jurisdiction over this civil action, the settling Parties in this action, and the subject matter of this action. Venue is appropriate in this judicial district. 60. If an employment practice produces a statistically significant adverse impact based on the race or national origin among candidates for hire, then Title VII prohibits its use unless the employer proves that the device is "job-related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). Courts typically accept, as sufficient to establish aprimafacie case of disparate impact, disparities that are equivalent to two to three units (or more) of standard deviation. See Hazeiwood Sch. Dist. v. United States, 433 U.S. 299, 308 n. 14 (1977); McClain v. Lufkin Indus., Inc., 519 F.3d 264, 279-80 (5th Cir. 2008). Moreover, even if an employer can show that the device is job-related and consistent with business necessity, Title VII bars use of the procedure if there is an alternative employment practice with less disparate impact that will meet the employer's needs. See 42 U.S.C. § 2000e2(k)( 1)(A)(ii). 61. Section 703(n) of Title VII protects a relief order from subsequent collateral attack by persons who had notice of the order and a reasonable opportunity to present objections to its terms. See 42 U.S.C. § 2000e-2(n)(l)(A)(ii).

Case 1:14-cv-00533-LY Document 63 Filed 11/07/14 Page 20 of 34
62. The Court finds that the time period from the date notice was mailed to the objection deadline was fair, reasonable and sufficient for potential Claimants and other notified individuals to make a reasoned decision regarding the Consent Decree. No one has claimed otherwise. No objection received to date has been excluded from consideration as untimely. The Court further finds that the Fairness Hearing provided a fair, reasonable opportunity for all persons having knowledge of it to present objections to the Decree. No one has claimed otherwise.
63. The Court has considered the declarations and reports from Dr. Jones, Dr. Siskin, Dr. Arthur, and Dr. French, and has given them such weight as the Court deems appropriate and consistent with the facts and reasonable inferences from the facts present in this case.
A. Legal Standards for Evaluating Consent Decrees
64. "Voluntary settlement of Title VII suits was deliberately adopted by Congress as a means of accomplishing its goal of eliminating employment discrimination." United States v.
City of Miami ("City of Miami If'), 664 F.2d 435, 442 (5th Cir. 1981). Indeed, "[c]ooperation and voluntary compliance were selected as the preferred means of achieving this goal." Id.
(quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)); see also Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14 (1981) ("In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims.").
65. As the Fifth Circuit has acknowledged, Congress places an "extremely high premium. . . on voluntary settlements of Title VII suits." United States v. City of Miami ("City
of Miami 1"), 614 F.2d 1322, 1331 (5th Cir. 1980), modified per curiam, 664 F.2d 435 (Former 5th Cir. Dec. 1981). Thus, "Title VII consent decrees should be viewed in light of Congress'
determination that voluntary compliance is a preferred means of enforcing nondiscriminatory 20

Case 1:14-cv-00533-LY Document 63 Filed 11/07/14 Page 21 of 34
employment policies and practices." Williams v. City of New Orleans, 694 F.2d 987, 991(5th
Cir. 1983) (citation omitted). 66. "In Title VII litigation, consent decrees enjoy a presumption of validity." Id.
(citing United States v. City ofAlexandria, 614 F.2d 1358, 1359, 1362 (5th Cir. 1980), overruled on other grounds implicitly by Dean v. City of Shreveport, 438 F.3d 448, 452 n. 1 (5th Cir. 2006); see also City of Miami I, 664 F.2d at 440 (indicating that consent decrees in Title VII cases are presumptively valid) (citations omitted). In particular, in cases where the United States is a
plaintiff, that presumption "is overcome only if the decree contains provisions which are
unreasonable, illegal, unconstitutional, or against public policy." Williams, 694 F.2d at 991
(quoting City ofAlexandria, 614 F.2d at 1362); cf, E.E.O.C. v. Johnson & Higgins, Inc., No. 93 CIV 5481 LBS, 1999 WL 544721, at *3 (S.D.N.Y. Jul. 26, 1999) (well-settled that courts have limited role in reviewing proposed settlement agreements in litigation initiated by EEOC, which has responsibilities analogous to Department of Justice) (internal citation omitted).
67. When assessing whether a proposed consent decree is lawful, reasonable and equitable, the Fifth Circuit considers several factors, commonly known as the Parker factors. See Salinas v. Roadway Express, Inc., 802 F.2d 787, 789 (5th Cir. 1986) (citing Parker v. Anderson, 667 F.2d 1204, 1209 (Former 5th Cir. 1982), cert. denied, 459 U.S. 828 (1982)); see also San Antonio Hispanic Police Officers' Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 453 (W.D. Tex. 1999)).
68. The Parker factors are: (1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense, and likely duration of litigation; (3) the stage of the proceedings and the actual amount of discovery completed; (4) the factual and legal obstacles to prevailing on the merits; (5) the possible range of recovery and the certainty of damages; and (6) the respective opinions of the participants, including class counsel, class representatives and the absent class members.
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Salinas, 802 F.2d at 789 (citing Parker, 667 F.2d at 1209). 69. With respect to the Parker factors, the Court has weighed the benefits of the
settlement against the prospect of the United States prevailing at trial and the potential range of recovery reasonably likely should the United States prevail. The benefits conferred by the proposed settlement in this case are substantial. For purposes of evaluating the fairness, adequacy, and reasonableness of this settlement, it is sufficient to state that recovery of any damages is not certain. This uncertainty of recovery, coupled with the costs of proceeding against the City in what would no doubt be a complicated and extended process, weighs in favor of approving the settlement.
70. The Decree is not the product of fraud or collusion. The Court finds that the settlement discussions between the Parties preceding the filing of the Complaint were conducted in good faith and at arms-length. "In the absence of fraud or collusion, the trial court should be hesitant to substitute its own judgment for that of counsel." Ruiz v. McKaskle, 724 F.2d 1149, 1152 (5th Cir. 1984) (analyzing lower court's approval of modified settlement in prison conditions case). When "the parties engaged in a lengthy, arms' length settlement process," they satisfy the first Parker factor. DeHoyos v. Allstate Corp., 240 F.R.D. 269, 287 (W.D. Tex. 2007); see also San Antonio Hispanic Police Officers' Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 458 (W.D. Tex. 1999) (finding no fraud or collusion where the parties were "vigorously represented" and engaged in long-term, arms-length negotiations).
71. The Court concludes that the United States has some likelihood, but not a certainty, of prevailing on the merits of its case, and that the City has some likelihood, but not a certainty, of sustaining its defenses to some or all of the claims in this case. Based upon the record as a whole, including the submissions of the Parties and objectors at and after the October
22

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29 hearing, the Court further concludes that both the United States and the City have good reason to seek a resolution of the issues in this case through a negotiated settlement. The Court concludes that the Decree-afforded relief strikes an appropriate balance between the strength of the United States' case and the uncertainty and delay inherent in contested and protracted litigation.
B. Objections to the Decree 72. The Court has duly considered the objections submitted in this case, and holds
that they raise no genuine issue as to the fairness, adequacy, and reasonableness of the settlement and do not provide a reasonable basis to withhold final and complete approval of the Decree.
73. Objections stating that there is insufficient evidence of intentional bias, insufficient evidence of adverse impact, and/or sufficient evidence that the hiring processes were valid are overruled (Doe. #47-6, p. l).8 A plaintiff need not establish discriminatory intent in a disparate impact case such as this,9 and the existence of a liability dispute between the Parties is not a valid reason to withhold approval of the Decree. As indicated, the United States has presented significant evidence through its two experts to show a sufficient likelihood of success on the merits under Parker. The existence of a bona fide dispute is precisely why the two parties agreed, in arms-length negotiations, to the compromise settlement.
74. The Court concludes that the City could not avoid liability here based on the Union Objectors' speculation that deviating from the test developer's recommended time limit
resulted in at least someif not allof the adverse impact exhibited on the NFSI. Indeed,
8 Objector Mr. Flood presents no viable legal claim or objection. For this reason, the Court also overrules objections stating that the test was fair in form, all
applicants had a level playing field, and/or all applicants experienced the same treatment.
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Case 1:14-cv-00533-LY Document 63 Filed 11/07/14 Page 24 of 34
courts have rejected the idea that an employer can rebut aprimafacie case of disparate impact
discrimination against a protected group merely by setting forth "some other facially nondiscriminatory factor that correlates with disparate impact," to explain why the impact occurs. See Bouman v. Block, 940 F.2d 1211, 1228 (9th Cir. 1991).b0
75. Further undermining the position that adverse impact is attributable solely to the time limit error is Dr. Jones's finding that the national validation study report submitted by the 2012 test developer, 110 Solutions, Inc., reports that differences between the average scores achieved by African-American, Hispanic, and white City candidates were essentially equal in magnitude to those noted by the test vendor in testing nearly 17,000 candidates of the same ethnicities in other fire agencies where no evidence of time limit errors were noted (Doe. #47-10 at ¶ 33). The 110 Solutions, Inc. national validation study shows adverse impact upon both African-American and Hispanic candidates in the group of more than 17,000 candidates similar to that noted by the City in 2012 (Id.).
76. The Court overrules any objection comparing the racial representation in the Austin 2013 firefighter test passer population to the racial representation in the United States population. According to Dr. Siskin, this analysis is statistically irrelevant to the issue of whether the 2013 test has an adverse impact (Doe. #47-8 at ¶ 11). The Court finds that objections of this nature also ignore the fact that the United States alleges that the rankings themselves are adverse to African American and Hispanics and thus any adverse selection based on the rankings would not be attributable to chance (Id. at ¶ 12).
10 In the materials filed October 29, 2014, Union Objectors also seem to argue that rank/mean
score analysis cannot be used to establish aprimafacie case of adverse impact. However, this
very methodology was accepted in United States v. City of New York, 637 F.Supp.2d 77 at 86-7, 93 (E.D.N.Y. 2009).
24

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77. The Court overrules objections that the 2013 cognitive/behavioral test was designed to narrow the field of applicants to those who possessed the necessary skills to be firefighters. The Uniform Guidelines on Employee Selection Procedures dictate that "nonempirical or anecdotal" assertions that an exam is representative of the job in question amount to an inappropriate "assumption of validity" that is insufficient to justify disparate impact. See 28 C.F.R. § 50.14 (1978). This type of objection also ignores the majority of the factors that an employer must prove in order to demonstrate the criterion-related validity of a selection procedure, and it ignores altogether both the validity problems that the United States has identified with regard to the 2013 process and the third prong of Title VII disparate impact analysis on alternatives. Thus, objections of this nature are overruled.
78. The Court finds that the City could not rebut the United States' primafacie case of disparate impact discrimination merely by setting forth "some other facially nondiscriminatory factor that correlates with disparate impact," such as experience, education level, English-proficiency level or training level, to explain why the impact occurs. See Bouman, 940 F.2d at 1227-28. Nor can an employer rebut a showing of disparate impact by arguing that if the members of the protected group had only spent more time studying or practicing, for example, the challenged employment practice would not have had a disparate impact. Thus, objections of that nature are overruled.
79. District courts have "not merely the power but the duty to render a decree that will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albemarle, 422 U.S. at 418 (citation omitted). Here, the relief provided in the Decree is narrowly tailored to accomplish this by: (1) providing individual relief including backpay and/or priority hire positions to Hispanics and African Americans who are
25

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part of the groups harmed by the challenged practices, and (2) ensuring through prospective injunctive relief that the City will develop and use a selection procedure that complies with Title VII and does not unnecessarily exclude qualified Hispanics and African Americans from the position of entry-level fire cadet.
80. The Decree's prospective injunctive relief is justified without any further showing here. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977). Under the Decree, the City is required to adopt a new, lawful selection process for use in hiring entry-level fire cadets. Courts have routinely entered consent decrees that, like the Decree here, afford such relief. See, e.g., Vulcan Pioneers, Inc. v. New Jersey Dep 't of Civil Serv., 832 F.2d 811, 816 (3d Cir. 1987) ("Vulcan IF'). Appropriate prospective injunctive relief may include a bar against future discrimination, an order to maintain records and generate compliance reports, or any other directive that is "necessary to ensure the full enjoyment of the rights" Title VII protects. See Teamsters, 431 U.S. at 361. Such relief may also include prohibiting the use of an unlawful exam or other invalid selection criteria, restricting the ability to promote from eligible lists shaped by unlawful selection practices, and ordering the adoption of new, lawful selection procedures. See, e.g., Vulcan II, 832 F.2d at 816 (affirming, in matter involving enforcement of consent decree, district court's prohibitions on using discriminatory exams and making promotions from lists generated by unlawful exams).
81. Considering the nature of this litigation and the uncertainties surrounding it, disapproval of the settlement would jeopardize a substantial recovery for Claimants, increase costs for the City and the United States, and unnecessarily delay the hire of additional firefighters needed to address the growing shortage of critical public safety personnel in a growing metropolitan area.

Case 1:14-cv-00533-LY Document 63 Filed 11/07/14 Page 27 of 34
82. The Court overrules objections stating that the relief provided by the Decree is improper, inadequate, or constitutes reverse discrimination (Doc. 47-6, p. 1).
83. In Title VII cases like this, "[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed." Albemarle, 422 U.S. at 418-19 (citation omitted). Given these principles, courts have routinely entered consent decrees that confer the kinds of individual remedial relief included in this Decree backpay, priority appointments, and full retroactive seniority to those receiving priority appointments. See, e.g., United States v. New Jersey, Civ. No. 10-91 (KSH)(MAS), 2012 WL 3265905, at *1 (D.N.J. Jun. 12, 2012), aff'd, 522 F. App. 167 (3d Cir. 2013), cert. denied, 134 S. Ct. 529 (2013);
United States & Corpus Christi Police Officers' Ass'n. v. City of Corpus Christi, Tex., 2:12-cv00217 (S.D. Tex. May 16, 2013); U.S. v. City of Portsmouth, Va., 2:09-cv-00133-MSD-FBS
(E.D. Va. Jul. 23, 2009). 84. The Court overrules any objection that the 2013 process is not the proper basis for
any injunctive relief because no one has been hired from that process to date. The alleged unlawfulness of the 2013 process, if implemented, supports the Decree's injunctive relief provisions, particularly those aimed at eliminating future Title Vu-proscribed discrimination. Congress' preference for voluntary compliance and for settling Title VII claims further supports those provisions. Moreover, given the broad equitable powers that courts have to eliminate future violations of Title VII, even if the 2013 process did not support those provisions, the alleged unlawfulness of the 2012 process supports the Decree's injunctive relief provisions.
85. Objections concerning the distribution of the backpay settlement are overruled. Distributing the backpay amount among all eligible Claimants through the claims procedures under the Decree (as opposed to distributing the backpay only to the unidentified 30 individuals
27

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who would ultimately be hired through the priority hiring process in the Decree) is equitable, and will provide those individuals with relief that is within the range of what they could recover if the United States prevailed at trial. It is impossible to know exactly which 30 individuals would have been hired in 2012 in a Title Vu-compliant process. A claims procedure to select them would be extremely time-consuming and expensive, and would require numerous speculative assumptions. The Eleventh Circuit has explained "in the context of remedial backpay relief that a class-wide remedy is appropriate when fashioning an individualized remedy would create a quagmire of hypothetical judgments as to which individuals, out of a large class, should receive remedial relief." United States v. City of Miami, 195 F.3d 1292, 1299 (11th Cir. 1999) (internal quotations and citations omitted); see also Segar v. Smith, 738 F.2d 1249, 1290 (D.C. Cir. 1984) (same); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261 (5th Cir. 1974) (same). In addition, some individuals, including some of those who might have been hired at the time, may no longer be interested in employment at the Austin Fire Department. Thus, to award the entire monetary amount to only 30 people would necessarily be both under-inclusive and overinclusive, as well as inequitable. Distributing the amount among all interested and eligible claimants is, therefore, a more equitable and efficient solution.
86. The number of priority appointments is also within the range of recovery that the United States could obtain if it prevailed on the merits. That number (30) is the same as the estimated number of additional African-American and Hispanic appointments that would have been made in the absence of the discriminatory employment practices (Doc. #5-2 at ¶ 8; see also Doc. #47-8 at ¶(J[ 9-10). Other courts have accepted this methodology in cases involving both consent decrees and litigated judgments. See generally United States v. New Jersey, Civ. No. 10-91 (KSH)(MAS), 2012 WL 3265905, at *12..13, 31 (D.N.J. June 12, 2012) (approving

Case 1:14-cv-00533-LY Document 63 Filed 11/07/14 Page 29 of 34
consent decree); United States v. City of New York, 637 F. Supp. 2d 77, 94, 96-97, 132 (E.D.N.Y. 2009) (granting summary judgment to plaintiff).
87. The Court overrules objections stating that the Decree will result in unqualified individuals becoming entry-level firefighters or otherwise compromise public safety, and similarly overrules objections stating that benefits conferred on Claimants are unearned or will stigmatize African Americans and Hispanics. No evidence was presented to the Court that supports these objections. Contrary evidence was presented, however. For example, under the terms of the Decree, the City will adopt a new, lawful selection procedure for entry-level firefighters (Doc. #5-1 at ¶ III.C.6). The Decree ensures that only Claimants who demonstrate that they are presently qualified for the position of entry-level fire cadet will be eligible for priority appointments (Doc. #5-1 at ¶ IILF.5.b; see also, App. E at ¶(J[ 4-5).
88. A Claimant will not be hired pursuant to the Decree unless, like every other Austin firefighter, the Claimant first demonstrates the qualifications to be an entry-level Austin fire cadet (Doc. #5-1 at App. B at ¶'J[ 3-9). To do that, the Claimant must pass the newly adopted lawful selection procedure and must successfully complete all lawful steps in the hiring process that are in effect at the time (Id.). Those steps currently include an initial application screen for minimum qualifications, background investigation, physical ability test, drug test, psychological exam, medical exam, and treadmill test (Id. at ¶ 5). Further, in order to be commissioned as an Austin firefighter, a Claimant must also successfully complete the six-month cadet training academy. The Claimant is ineligible for retroactive seniority until completing the training academy and becoming commissioned as an Austin firefighter (Doe. #5-1 at ¶ III.F.5.g.ii).
89. Further, retroactive seniority does not apply to time-in-grade requirements for promotions; thus, the Decree is narrowly tailored not to affect this provision of state civil service

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law at all (Doc. #5-1, App. A at ¶ 9). The Court finds no evidence that those hired pursuant to the Decree will not be qualified to be entry-level firefighters in Austin, nor is there any indication that those individuals will pose any unique risk to their colleagues or to the citizens they serve.
90. The Decree appropriately provides retroactive seniority to Claimants who receive priority appointments (Doe. #5-1 at ¶ III.F.5.k). Awarding retroactive seniority is a necessary element in placing qualified individuals who, but for the challenged practices, would have been hired earlier in the positions they would have occupied in the absence of the alleged
discrimination. Such retroactive seniority relief ordinarily is necessary to achieve Title Vii's
"make whole" objective. See Franks v. Bowman Transp. Co., 424 U.S. 747, 765 (1976); U.S. v. New Jersey, No. CIV. 88-5087 WGB, CIV. 88-4080(MTB), CIV. 87-2331(HAA), 1995 WL 1943013, at *19 (D.N.J. Mar. 14, 1995). In fact, courts have found that there is a presumption in favor of affording such seniority relief when the parties reach a voluntary settlement. See Franks at 780, n.41; see also Moore v. City of San Jose, 615 F.2d 1265, 1272 (9th Cir. 1980); Bockman v. Lucky Stores, Inc., No. CIV S 83-039 RAR, 1986 WL 10821, at *4 (E.D. Cal. Aug. 11, 1986), aff'd, 826 F.2d 1069 (9th Cir. 1987).
91. The Parties carefully tailored the Decree's retroactive seniority provisions to assure these terms would have limited, if any, impact on incumbent firefighters. Under state civil service law, seniority based on the date of commissioning as a firefighter is one factor used in determining placement on a promotional eligibility list. See Texas Local Government Code Sec. 143.033. Only up to 30 individuals (those appointed as priority hires under the Decree) will receive retroactive seniority, with their seniority dates adjusted to the dates when they would have been commissioned had they been actually hired as part of the 2012 process (Doe. #5, pp.
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27-28). The Decree provides that half of the priority hires (15) will receive the same commission date as the graduates from the earlier 2012 cadet academy, and half will receive the same commission date as graduates from the later 2012 cadet academy (Doc. #5-1, App. A at ¶ 9). Thus, the Decree narrowly tailors retroactive seniority to closely replicate the seniority dates the priority hires would have actually received had they been hired with those incumbents (Doc. #5-1, App. A at ¶ 9(b)).
92. Objections that the retroactive seniority provisions of the Decree will affect the seniority rights of incumbent firefighters are overruled. The retroactive seniority available under the Decree is carefully limited to the actual hire and commission dates given to those hired in the two 2012 fire cadet academies. The number of priority hires is limited to the shortfall as calculated by the United States' statistical expert (Doc. #5-2 at ¶ 8). Importantly, as set forth in this Court's prior rulings, AFD uses competitive seniority only in connection with promotions, and any incumbent interest is both remote and speculative (Doc. #s 38 and 44)11 Thus, the Court concludes that the rights of incumbents "are disrupted only to the limited extent necessary to provide relief to identified victims." U.S. v. New Jersey, Nos. CIV. 88-5087 WGB, CIV. 884080(MTB), CIV. 87-233 1 (HAA), 1995 WL 1943013, at *16 (D.N.J. March 14, 1995).
93. There is no basis to believe that the retroactive seniority relief in the Decree will stigmatize any of the priority hires. In any event, that others may wrongfully stigmatize
There also is the potential under state civil service laws to use competitive seniority during a reduction in force, but the AFD has not had a reduction in force in more than 25 years, and the City has indicated that it has a present need to address a significant and growing hiring shortage. Thus, in light of the significant number of new hires contemplated by the City, it appears highly unlikely that any current incumbent would even be reached in a future reduction in force, much less selected for layoff in favor of a priority hire. In addition, other seniority-based job benefits, such as rate of pay and leave accrual rate, are individual benefits that do not affect incumbent employees, so any objection to benefit seniority are overruled.
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individuals is not a legitimate basis for denying final approval. See Local No. 93, Int'l Ass'n of
Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 5 11-12 (1986) (affirming approval of a consent decree over objections that the decree would cause "serious racial polarization"); see also Franks, 424 U.S. at 775 (concluding that relief cannot be denied "merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it") (citation omitted). Even if there was some plausible evidence of stigmatization from the retroactive seniority relief, that result standing alone is insufficient to prevent final approval of the Decree.
94. In summary, the Court finds no basis to conclude that the priority hire and retroactive seniority provisions of the Decree will compromise public safety, or stigmatize or provide an unearned windfall to individuals hired through the priority hire process. To the contrary, the Court concludes that these provisions of the Decree achieve an appropriate balance between providing effective remedial relief under Title VII, and protecting the legitimate interests of the City and its existing firefighters.
C. No Requirement of a Merits Hearing 95. Counsel for both the United States Department of Justice and the City are
experienced and capable attorneys able to analyze in a realistic fashion the merits of their case, the prospects for recovery, the strategic implications of a settlement, and the value of a settlement, especially at this stage of the litigation. They recommend settlement, and their recommendation weighs in favor of approval under Parker.
96. The continued litigation and trial of this action would be lengthy, complex, and extraordinarily expensive. Considering the nature of this litigation and the uncertainties surrounding it, disapproval of the settlement would jeopardize a substantial recovery for
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Claimants, increase costs for the City and the United States, and unnecessarily delay the hire of additional firefighters needed to address the growing shortage of critical public safety personnel.
97. When the parties are faced with the likelihood of a lengthy trial and extensive risks and costs, courts in this Circuit have found that the second Parker factor favors settlement. San Antonio Hispanic Police Officers' Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 458 (W.D. Tex. 1999) (repeating the court's statement at the fairness hearing that, "[t]he full litigation route [involves] risks and costs, not only monetary costs, but also damage to the department and to the city."); see also Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004) (noting, in approving a Title VI and Equal Protection Clause settlement using the Parker factors, that settlement would provide relief for the class sooner than litigation would).
98. The Court rejects the contention of the Union Objectors that there must be an adjudication of the merits of the United States' claims before the Court may approve the Decree. The cases relied upon by the Union Objectors are inapposite. They involve three narrow, inapplicable, exceptions to the traditional Parker analysis. These three exceptions are all based on factual settings not present in this case, as the Court has previously ruled in this case.
99. The first exception, which is represented by United States v. City ofMiami, 664 F.2d 435, 439 (5th Cir. 1981) (en banc), applies when a party withholds consent from a portion
of a decree. But this exception does not apply, as this Court has twice denied Local 975 and its individual members party status in this action.
100. The second exception, represented by E.E.O.C. v. Safeway Stores, Inc., 714 F.2d 567, 575 (5th Cir. 1983), applies when a Decree conflicts with an existing collective bargaining agreement. This exception does not apply, as this Court has already determined that the Decree does not conflict with an existing collective bargaining agreement. Notably, the Fifth Circuit in Safeway Stores emphasized the general rule that merits adjudication is unnecessary:
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We find that a district court can order that a party perform the promises it made in a conciliation agreement without an independent determination that discriminatory practices have, in fact, occurred. It would be manifestly illogical to recognize that Congress had selected conciliation as the primary means of achieving compliance with the Act, and at the same time to interpret the statute so that employers and unions are free to breach such agreements with impunity. If a trial de novo or a finding on the merits were required before any voluntary agreement to resolve discrimination claims could be enforced, conciliation agreements would be rendered worthless as a means of securing compliance with Title VII.
Id. at 575.
101. Finally, the third exception, represented by Overton v. City of Austin, 748 F.2d
941 (5th Cir. 1984), applies when a Decree invalidates state law. The most common example is
a settlement following a constitutional challenge to a state law. Before a Court can invalidate a
state law, there must be a determination that it is in fact unconstitutional. This exception
likewise does not apply. This Court has already determined, in denying intervention to the
Union Objectors, that the Decree in this case does not invalidate any portion of the state Civil
Service Act.

ORDER For all the foregoing reasons, this Court GRANTS the Joint Motion for Final Approval of the Consent Decree, and approves and orders the implementation of the Consent Decree according to its terms.

thi

day of ___________________, 2014.

LEEJ
U(TED STAT DISTRICT JUDGE

 
 Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 1 of 46
--
FILp0
-7
tLkp i
S
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
THE CITY OF AUSTIN, TEXAS,
Defendant.

)

)

)

)

Civil Action No.: 1:14cv533

)
) )

)
)

CONSENT DECREE

Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 2 of 46

TABLE OF CONTENTS

BACKGROUND

.1

II. STIPULATIONS ..................................................................................................................... 2

III. RELIEF UNDER THIS DECREE .......................................................................................... 8

A. DEFINITIONS AND PARTIES ......................................................................................... 8

B. PURPOSES OF THIS CONSENT DECREE ..................................................................... 9

C. INJUNCTIVE RELIEF ....................................................................................................... 9

1. General Injunctive Relief................................................................................................. 9

2. Interim Hiring Process ................................................................................................... 10

3. Recruitment of Firefighters ............................................................................................ 11

4. Decree Compliance Officer ........................................................................................... 12

5. Claims Administrator ..................................................................................................... 12 6. Use of Lawful Selection Procedures .............................................................................. 13

D. FAIRNESS HEARING ON TERMS OF CONSENT DECREE ..................................... 17

E. ENTRY OF THE CONSENT DECREE .......................................................................... 21

F. INDIVIDUAL RELIEF .................................................................................................... 21

1. Settlement Fund ............................................................................................................. 21

2. Monetary Relief Awards from the Settlement Fund ......................................................21

3. Preliminary Eligibility for Individual Relief.................................................................. 22

4. Potentially Eligible Claimants to Submit Interest in ReliefForm ................................. 23

5. Priority Hiring Relief and Retroactive Seniority ........................................................... 24

6. Determination of Claimants' Eligibility for Individual Relief ...................................... 28

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7. Filing of Individual Relief Lists

. 29

8. Fairness Hearing on Individual Relief ........................................................................... 30

9. Approval of Final Backpay Awards List and Final Priority Hire Candidate List.......... 32

10. Notice of Individual Relief Awards and Acceptance and Release ................................ 32

G. RECORD RETENTION AND PRODUCTION .............................................................. 36

IV. DISPUTE RESOLUTION .................................................................................................... 37

V. DURATION OF CONSENT DECREE ................................................................................ 38

VI. COSTS AND FEES ............................................................................................................... 39

VII. MISCELLANEOUS .............................................................................................................. 39

Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 4 of 46

LIST OF APPENDICES

APPENDIX A Definitions

APPENDIX B Interim Hiring Process Under Paragraph III.C.2

APPENDIX C

Notice of Settlement and Fairness Hearing, Instruction for Filing an Objection to the Terms of the Consent Decree, and Objection to the Entry of Consent Decree Form

APPENDIX D Notice of Entry of Consent Decree and Interest in Relief Form

APPENDIX E Procedures for Priority Hiring Relief Under Paragraph III.F.5

APPENDIX F Cover Letter re Fairness Hearing on Individual Relief

APPENDIX G Instructions on Filing an Objection to Individual Relief and Objection Form

APPENDIX H Notice of Award of Individual Relief

APPENDIX I

Acceptance of Backpay and/or Consideration for Priority Hire Job Offer and Release of Claims

Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 5 of 46
I. BACKGROUND This action was brought by the United States against the City of Austin ("City") to
enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"). This Court has jurisdiction of this action under 42 U.S.C. § 2000e-6 and
28 U.S.C. § 1343(a)(3) and 1345. In its Complaint, the United States alleges that the City has engaged in unlawful
employment practices by utilizing selection procedures that have the effect of depriving or tending to deprive African Americans and Hispanics of employment opportunities because of their race and/or national origin, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-
2(a). The United States does not allege in its Complaint that the City engaged in intentional discrimination.
Specifically, the United States alleges that the City's pass/fail use of an entry-level fire cadet written examination and its processing of entry-level fire cadet applicants in descending rank-order, have each resulted in an adverse impact upon African-American and Hispanic applicants for fire cadet positions. The United States further alleges that these practices have not been shown to be sufficiently job related for the position of fire cadet and consistent with business necessity.
This action alleges disparate impact discrimination. The United States does not allege in its Complaint that the City has intentionally discriminated against any person or group of persons under Title VII.
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II. STIPULATIONS The City denies that it has violated Title VII. Nevertheless, the United States and the
City, desiring that this action be settled by an appropriate consent decree ("Decree") and without the burdens of protracted litigation, agree to the jurisdiction of this Court over the Parties and the subject matter of this action. The United States and the City further agree to the entry of this Decree as final and binding between themselves as to the issues raised in the United States' Complaint in this action. Subject to the Court's approval of this Decree, the Parties waive findings of fact and conclusions of law on all issues, except as to the following, which the Parties stipulate and which the Court finds':
Background of the Firefighter Hiring Process A. The City hires entry-level firefighters through a competitive selection process. That selection
process is governed in part by Chapter 143 of the Texas Local Government Code, which establishes certain requirements for entry-level hiring within the fire departments of cities including the City of Austin that have adopted its provisions. During the years at issue in this case, the City's hiring process has also been governed in part by the terms of a collective bargaining agreement between the City and the Austin Firefighters Association, Local 975, a labor organization that represents Austin firefighters. That agreement expired in October 2013, and there is no bargaining agreement in effect as of the date of this Decree.
The facts are based on the declarations of the United States' experts, which are attached to the Parties' joint memorandum in support of entry of this Decree.
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B. During the years at issue in this case, the City's hiring process has been a multi-step, sequential process in which applicants were required to meet minimum standards at each step in order to move forward to the next step in the process. In general, the design of the hiring process included a written application, a written cognitive-behavioral skills assessment, an oral skills assessment, and other pre-employment assessments.2 All applicants who successfully completed the application step were invited to take the written cognitivebehavioral skills assessment, which was administered to all applicants at the same time and in the same location. After the cognitive-behavioral assessments were scored, some or all of the applicants were invited to participate in the oral skills assessments, which were administered several weeks later. In 2012, some of those applicants who achieved a successful score on the oral skills assessment were invited to participate in the battery of other pre-employment assessments. Applicants who successfully passed these other assessments would be placed on a ranked eligibility list for hiring based on their scores on the cognitive and oral assessments. Applicants were then offered job positions with the Austin Fire Department in rank order from the eligibility list.
C. Applicants selected from the eligibility list receive an offer of employment to become a fire cadet, which is the entry-level position in the Austin Fire Department. The fire cadet position is a trainee position in which the fire cadets undergo roughly six months of full time classroom and field work conducted at the Austin Fire Department's training academy. Fire
The City's other pre-employment assessments included a physical ability test, criminal background screening, psychological and medical testing, and drug testing. These assessments are not at issue in this litigation.
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cadets are required to pass several assessments during this training, including obtaining required certifications from the State of Texas as both firefighters and emergency medical technicians. Following completion of their six-month training program and successful completion of their state certifications, fire cadets are commissioned as probationary firefighters. They remain in probationary status for several additional months, during which they participate in further training and testing.
The 2012 Hiring Process
D. In 2012, the selection process used by the City in the screening and selection of applicants for the fire cadet position included the administration of a written cognitive-behavioral examination called the National Firefighter Selection Inventory ("NFSI"). Applicants could not be considered further for the fire cadet position unless they took and passed the NFSI. Use of the NFSI specifically as the written cognitive assessment was a requirement of the collective bargaining agreement then in effect between the City and Local 975. That collective bargaining agreement has since expired.
E. In May 2012, as part of the fire cadet selection process, the City administered the NFSI to approximately 2,600 applicants who met minimum qualifications, including approximately 1,114 white applicants, approximately 328 African-American applicants and approximately 902 Hispanic applicants. The City set the passing score for the NFSI at 70 (nominal passing
score).
F. On the same day, the City also administered a second written test, the Integrity Inventory
(12).
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G. Applicants who achieved a passing score of 70 on the NFSI, achieved a passing score on the 12, and who were also among the top 1,500 NFSI scorers were invited to participate in an oral assessment called the Structured Oral Interview ("SO!")
H. The City's decision to administer the SOI assessment only to those NFSI and 12 passers who were also among the top 1,500 NFSI scorers resulted in the elimination of NFSI and 12 passers who scored less than 75.06 on the NFSI (effective passing score).
I. In 2012, both African-American and Hispanic applicants on average passed the NFSI at a lower rate than white applicants, using either the nominal or the effective passing score. The
disparity in pass rates is statistically significant and sufficient to establish aprimafacie case of disparate impact discrimination under Title VII.
J. Applicants who passed the SOl were placed on an eligibility list in descending rank-order based on their total scores. Total scores were created by combining NFSI scores, weighted one-third, and SOT scores weighted two-thirds, then adding military points where applicable.
K. The City processed applicants for further consideration in descending rank order based on applicants' total scores.
L. Tn 2012, both African-American and Hispanic applicants on average ranked lower on the eligibility list than white applicants. The disparity in rankings is statistically significant and
sufficient to establish aprimafacie case of disparate impact discrimination under Title VII. M. Absent the disparate impact resulting from the City's pass/fail use of the NFSI and from the
City's determination and use of total scores to process applicants in descending rank order,
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the United States estimates that an additional 12 African-American applicants would have been offered employment as fire cadets from the 2012 list. The City does not contest this estimate.
N. Absent the disparate impact resulting from the City's pass/fail use of the NFSI and from the City's determination and use of total scores to process applicants in descending rank order, the United States estimates that an additional 18 Hispanic applicants would have been
offered employment as fire cadets from the 2012 list. The City does not contest this estimate.
0. The United States contends that the City cannot demonstrate that its use of the NFSI as a pass/fail screening device is sufficiently job related for the position of fire cadet and
consistent with business necessity
P. The United States contends that the City cannot demonstrate that its use of total scores to process applicants from eligibility lists in descending rank order in 2012 is job related for the position of fire cadet and consistent with business necessity.4
Q. The United States contends that the amount of seniority lost by African-American and Hispanic applicants from 2012 to the present as a result of the City's pass/fail use of the NFSI and from the City's determination and use of total scores to process applicants in
The United States does not contend in this action that the City's use of the SOT assessment was unlawful.
The United States also contends that alternative Selection Devices exist to select candidates for entry-level firefighter positions that would have served the City's legitimate needs and that have been demonstrated to have less adverse impact. Since these stipulations proceed under the theory that the challenged employment practices are not sufficiently demonstrably job related and consistent with business necessity, it is unnecessary to set forth these alternatives.
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descending rank order exceeds the seniority awarded to Claimants under this Decree. The City does not contest this contention. R. The United States represents that the relief provided by this Decree does not exceed makewhole relief to individuals who would be considered victims of the practices challenged by the United States, and the procedures set forth in this Decree for identifying claimants and allocating relief among them is lawful, reasonable and equitable.
The 2013 Hirin2 Process S. In 2013, the City changed both the written cognitive test instrument and the oral test
instrument used in its fire cadet hiring process, and changed the weighting of the scores on
these assessments used to arrive at a total score. T. The 2013 written cognitive-behavioral examination was the National Entry-Level Firefighter
examination ("NELF"). The oral test instrument was an assessment created by the same vendor who provided the NELF. U. In May 2013, the City administered the NELF to over 2,500 applicants, of whom approximately 1,037 were white, approximately 361 were African-American, and approximately 1,112 were Hispanic. V. All applicants who took the NELF were invited to take the oral assessment. In July 2013, the
City administered the oral assessment to over 2,000 applicants of whom approximately 714
were white, approximately 231 were African American, and approximately 803 were Hispanic.
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W. The City initially proposed to hire applicants based on a combination of NELF scores,
created using responses to the cognitive items only, and SOT scores, with NELF scores accounting for 20 percent of the composite score and oral assessment scores accounting for 80 percent of the composite score. The City proposed to add military points to that composite to arrive at a total score. The City would then process candidates in descending rank order based on total scores.
X. After initially calculating scores for those who took both the NELF and Structured Oral Tnterview in 2013, the United States advised the City that it believed that ranking applicants based on their total scores and processing them in descending rank order will have adverse impact on both Hispanic and African-American applicants, and that the disparities between rankings of applicants in those groups and of white applicants are statistically significant. The City does not dispute these statistical findings.
Y. The United States contends, and for purposes of this Decree the City does not dispute, that acceptable job-related alternatives exist that are equally valid and result in less adverse
impact.
III. RELIEF UNDER THIS DECREE In resolution of this action, with the consent of the Parties, IT IS THEREFORE
ORDERED, ADJUDGED AND DECREED as follows:
A. DEFINITIONS AND PARTIES
1. The "Parties" to this Decree are the United States, by the Department of Justice ("United States"), and the City of Austin, Texas ("City").
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Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 13 of 46
2. Terms used in Part III of this Decree shall have the meanings set forth in Appendix A to
this Decree, unless expressly stated otherwise. B. PURPOSES OF THIS CONSENT DECREE
The purposes of this Decree are to ensure that: 1. The City does not violate Title VII by using policies or practices that have an adverse
impact upon either African-American or Hispanic applicants for the position of fire cadet and are not sufficiently job related for the position of fire cadet and consistent with business necessity, or that otherwise violate the Title VII rights of African American or Hispanic applicants to become fire cadets; and 2. The City utilizes lawful selection procedures that will serve the purposes of ensuring that fire cadet hiring is based on merit and that the City's selection procedure does not unnecessarily exclude qualified African-American and Hispanic applicants; and 3. The City provides, as appropriate, monetary relief and/or priority appointment relief with retroactive seniority to qualified persons who were denied a job as a fire cadet due to the employment practices challenged by the United States in this case. C. INJUNCTIVE RELIEF 1. General Injunctive Relief a. Except as provided in this Decree, the City, its officials, agents, employees, and
successors, and all persons acting on behalf or in active concert or participation with it, are enjoined from using any Selection Device for the position of fire cadet
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Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 14 of 46
that has an adverse impact upon African-American or Hispanic applicants on the basis of race and is not sufficiently job related for the position of fire cadet and consistent with business necessity, or otherwise does not meet the requirements of Title VII.
b. The City is specifically enjoined from using any written cognitive assessment test as part of its selection process for fire cadets in any manner that results in disparate impact upon African-American or Hispanic applicants and is not shown to be sufficiently job related or consistent with business necessity under Title VII
or, ifjob related and consistent with business necessity under Title VII, from refusing to adopt an alternative employment practice that exists within the meaning of 42 U.S.C. § 2000e-2(k)(1)(A)(ii). 2. Interim Hiring Process
a. The United States contends, and the City does not contest, that the City's proposed use of the Selection Devices administered in 2013 would result in unlawful disparate impact against African-American and Hispanic applicants. As a result, the City suspended the 2013 hiring process prior to the filing of this action.
b. The Parties recognize that proper development of a new, lawful hiring process
will take time, and that the City has immediate operational needs that may require
the hiring of fire cadets prior to the implementation of a new hiring process in accord with Paragraph III.C.6 of this Decree. If so, in order to address the City's
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immediate operational need to staff its fire department while mitigating the potential adverse impact resulting from use of the 2013 Selection Devices, the Parties agree that the City may process applicants and hire fire cadets from among those individuals who completed both the NELF cognitive assessment and oral assessment in 2013 using the process set out in Appendix B to this Decree, which allows the list generated from that process to be used on a limited basis.
3. Recruitment of Firefighters a. In order to encourage qualified Hispanics and African Americans to apply for fire cadet positions, the City shall, within 60 days of the Date of Entry of this Decree, develop and submit to the United States a written recruitment plan for fire cadets.
The recruitment plan shall include recruitment objectives, staffing, budget, media to
be used, and a description of how the City intends to make the public aware of
employment opportunities as an Austin fire cadet and firefighter. The City shall appoint one or more of its Fire Department employees to coordinate and participate in recruitment activities as part of the employees' regular duties.
b. The City shall advertise the dates and times of its application period and the administration of its selection procedures for fire cadet by: (a) issuing testing announcements at least 60 days prior to the closing date for submitting an application; (b) advertising in the Austin American-Statesman at least thirty (30) days prior to the closing date; (c) posting fire cadet testing announcements on the City's website with a link to the applicable application for at least 45 days prior to the closing date; (d) posting fire cadet testing announcements in each City Department where job
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announcements are posted at least 45 days prior to the closing date; (e) sending a copy of each such testing announcement at least 45 days prior to the closing date to the Texas Workforce Commission for statewide distribution and to the placement officer of each two-year and four-year post-secondary school in the Austin area.
c. The City shall make its applications for fire cadet positions available on its website, and shall permit fire cadet applicants to submit applications through its online application process.
4. Decree Compliance Officer
The City shall designate a person who shall be primarily responsible for enforcing the
provisions of this Decree. This person's responsibilities shall include, but not be limited to, ensuring that the City fully implements and complies with all paragraphs of this Decree, and receiving complaints of discrimination on the basis of race and/or national origin in the screening, selection and appointment of entry-level firefighters. 5. Claims Administrator
a. Within 30 days following the execution of this Decree by the Parties, the City shall
enter into a contract with a Claims Administrator, selected by the City and subject to
the approval of the United States, to assist the Parties with the notice and claims procedure for individual relief. The City shall bear all costs and expenses of the Claims Administrator, and the City's contract, also subject to the United States' approval, will require that the Claims Administrator comply with the provisions of this Decree as applicable to the Claims Administrator. The cost of the Claims
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Administrator shall be in addition to, and not deducted from, amounts designated as Backpay under this Decree.
b. The Claims Administrator's contract will require the Claims Administrator to work under the control and supervision of the United States, the City, and the Court in the conduct of its activities, including reporting regularly to and providing all reasonably requested information to the United States, the City of Austin, and the Court.5
c. Within 14 days following the effective date of the City's contract with the Claims Administrator, the City shall provide the Claims Administrator with a mailing list in suitable electronic format of the names and last known mailing addresses and email addresses of all persons and other entitled to notice under Part III.D of this Decree.
6. Use of Lawful Selection Procedures
The City will use lawful selection procedures to select qualified applicants for hiring into
the position of fire cadet as set forth below.
a. If a Selection Device(s) used by the City has statistically significant disparate impact on African Americans or Hispanics, it must be shown to be job related for the fire
cadet position in Austin and consistent with business necessity in accord with Title
In the event the United States or the City has reason to believe that the Claims Administrator is
not materially complying with the terms of its contract with the City, the United States and the City will meet and confer for the purpose of mutually agreeing upon a course of action to effect the Claims Administrator's material compliance with its contractwith the City. In the event that the United States and the City are unable to agree upon a course of action to effect the Claims Administrator's material compliance with its contract with the City, the Parties may present the
matter to the Court.
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VII. In deciding to use a Selection Device, the City shall make reasonable efforts to explore the availability of Selection Devices which have been shown to reduce or eliminate disparate impact upon African-Americans and Hispanics in the selection of
fire cadets without diminution ofjob-relatedness. If it identifies such alternatives, it must use them, subject to any objections raised by the City to the cost of such alternatives, which shall be resolved by agreement of the Parties or by the Court if the
Parties cannot agree.
b. The City will inform the United States not later than 60 days before any planned administration of a new Selection Device(s). At that time, the United States may request all information available to the City about the development and/or validation of the proposed Selection Device(s), including but not limited to: a description of the Selection Device(s); a description of the manner in which the City intends to use the
Selection Device(s); the known or likely disparate impact, if any, of the intended use of the Selection Device(s); all validation studies, analyses, test plans, and any other evidence ofjob relatedness of the Selection Device(s) available to the City, including
data underlying such studies, analyses, test plans, and other evidence; and any basis for a conclusion that the City's proposed use of the Selection Device(s) is job related for the fire cadet position and consistent with business necessity. The City's submission shall also identify any other Selection Devices, as well as any other
manners of using the chosen Selection Device(s), considered by the City. If the
United States does not notify the City in writing that the United States has an
objection within 15 business days of receiving the City's complete submission, the
City may administer the Selection Device(s).
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c. After administering any Selection Device(s) and before announcing the results to candidates or deciding upon the method of use, in recognition that the job-relatedness
and validity of an exam can often be evaluated fully only after the exam has been
administered, the City will provide to the United States in Excel format the name, unique identifier, race, national origin, exam score and any applicable sub-scores, and test form identification for all applicants to whom the Selection Device was administered. At the same time, the City will cause its testing vendor to provide to the United States the answer keys and test question responses for each candidate for
each Selection Device. If the United States determines that the City's proposed use of the Selection Device(s) does not comply with Title VII and with this Decree, the United States shall notify the City in writing within 15 business days of receiving the above-listed information that the United States objects to the City's use of the
Selection Device(s).
d. Upon completion of the administration of all components of the City's fire cadet
selection process upon which any eligibility list may be based, the City will provide to the United States in Excel format the name, unique identifier, race, national origin,
scores and applicable sub-scores on all components of the selection process, any
applicable combined and/or final scores, military or other bonus points, and ranks for
each applicant who participated in the selection process, if applicable. If after the administration of all components of the City's selection process on which any
eligibility list may be based, the United States determines that the City's selection process does not comply with Title VII and with this Decree, the United States shall notify the City in writing within 15 business days of receiving the above-listed
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information that the United States objects to the City's selection process.
e. Any objection(s) to the City's use of a Selection Device or overall selection process made by the United States pursuant to Subparagraphs c or d, above, shall be resolved under the dispute resolution procedures in Part IV of this Decree. If either Party submits any such objection(s) to the Court for resolution under Part IV.A, the Parties agree that the burdens of proof set forth in 42 U.S.C. § 2000e-2(k) shall apply in resolving such objection(s). If the Court determines that the City's proposed Selection Device, manner of use or overall process does not comply with Title VII, the City shall not use that Selection Device in that manner or shall not employ that process without whatever modifications the Court may order. If an objection to the City's use of a Selection Device for the fire cadet position or overall hiring process
for the fire cadet position is made by the United States pursuant to this Paragraph, no person shall be certified for appointment as a fire cadet except by written agreement
of the Parties or order of the Court.
f. Following the administration of a fire cadet hiring process that was subject to the review and objection procedures set forth in Subparagraphs a-e, above, the City shall be authorized to administer and use the Selection Device(s) agreed to by the Parties pursuant to Subparagraph b above, or ordered by the Court pursuant to Subparagraph e, above, during the life of this Decree, subject to the requirements of Subparagraph g, below. For any subsequent administrations, the City will provide the United States with at least 90 days' notice of its intent to announce a new fire cadet selection process. The City's notice shall state whether the City intends to administer the same
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Selection Devices and overall selection processes as previously agreed to by the Parties or ordered by the Court, or whether it intends to make any changes to the Selection Devices or their manner of use.
g. If the City intends to make any changes to the Selection Devices or their manner of use in a subsequent administration of a fire cadet hiring process, the review and objection procedures set forth in Subparagraphs b through e, above, shall apply. If the City does not intend to make any changes to the Selection Devices or their manner of use in a subsequent administration of a fire cadet hiring process, including the limited use of the 2013 exam set forth in this Decree, the City will produce to the United States the data and information required by Subparagraphs b through d, above,
for the subsequent administration.
h. Due to the importance of test security, along with concerns about the proprietary nature of test development materials, all correspondence and communications between and among the Parties and their test developers, consultants and/or experts in connection with performance of the obligations set forth in Subparagraphs b through d, above, shall be held confidential and shall not be disclosed to any third party in the absence of a Court order compelling such disclosure, or the written consent of the
adverse party, or as otherwise required by law.
D. FAIRNESS HEARING ON TERMS OF CONSENT DECREE
1. Upon execution of this Decree, the Parties shall promptly file a joint motion for the provisional approval and entry of the Decree by the Court and request a Fairness Hearing
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on the Terms of the Consent Decree to allow the Court to determine whether the terms of
the Decree are fair, reasonable and consistent with Title VII. The Parties will request that the Court provide at least one hundred (100) days' notice of the date and time set for this
Fairness Hearing on the Terms of the Consent Decree.
2. The purpose of the Fairness Hearing on the Terms of the Consent Decree and the related notification provisions of this Decree is to provide to all persons who may be affected by the terms of the Decree notice and an opportunity to present objections prior to final entry of the Decree, in accordance with Section 703(n) of Title VII, 42 U.S.C. § 2000e-2(n).
3. No later than 60 days prior to the Fairness Hearing on the Terms of the Consent Decree, the Claims Administrator shall provide a copy of a Notice of Settlement and Fairness Hearing, Instructions for Filing an Objection to the Terms of the Consent Decree, and a blank Objection to the Entry of the Consent Decree, in the formats set forth in Appendix
C:
a. Via electronic mail, with tracking capability, to the last known e-mail address of each Claimant identified as preliminarily eligible for relief under Paragraph III.F.3, below. However, if an e-mail is not opened within seven days of the day it is sent, the City will send a Notice of Settlement and Fairness Hearing, Instructions for Filing an Objection to the Terms of the Consent Decree, and a blank Objection to the Entry of the Consent Decree, with a cover letter in the formats set forth in Appendix C via first-class U.S. mail to the last known address of that individual;
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b. To each applicant in the City's 2013 hiring process who took and completed both the NELF examination and the 2013 oral assessment;
To each Fire Cadet and Firefighter, as defined in Appendix A, via hand delivery at the place of the person's employment, by certified mail with return receipt requested, or as an attachment to or enclosure with each such person's regularly distributed paycheck; and
d. Via certified U.S. mail, return receipt requested, to each union or association recognized as being authorized to represent firefighters in Austin.
4. At or before the time notices are provided pursuant to Paragraphs 3.a 3.c, above, the City shall provide to the United States a list stating the name and last known mailing address and email address of each person or entity to whom such notice is being sent.
5. In addition, the City shall publish a notice, in a form substantially the same as contained in the cover letter in Appendix C to this Decree, in the Wednesday, Friday and Sunday
editions of the Austin American-Statesman. The published notice shall appear with a
headline in bold typeface, surrounded by a dark border, shall be no smaller than 6 inches by 10 inches in size, and shall be placed in the local news section or other prominent location agreed to by the Parties. All such newspaper notices shall be published for five (5) days, concluding no later than 60 days prior to the date set for the Fairness Hearing on
the Terms of the Consent Decree. The notice should also appear in the same format on the "Current Applicants" website of the Austin Fire Department, using the same web address as was used for 2012 and 2013 fire cadet applicants to check their application
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status.
6. Persons who wish to object to the terms of the Decree shall file objections, in accordance
with the requirements set forth in Appendix C, and as follows:
a. Objections shall state the objector's name, address and telephone number; set forth a specific description of the objector's basis for objecting; include copies of any documentation supporting the objections; state the name and address of the objector's counsel, if any; and state whether the objector wishes the opportunity to be heard in Court at the Fairness Hearing on the Terms of the Consent Decree.
b. Objections shall be mailed to the Claims Administrator at the address provided for this purpose by the Claims Administrator to the Parties.
c. Objections must be mailed and postmarked to the Claims Administrator no later than
thirty (30) days prior to the date set for the Fairness Hearing on the Terms of the
Consent Decree. Any person who fails to do so shall be deemed to have waived any right to object to the terms of this Decree, except for good cause as determined by the
United States and approved by the Court if the City of Austin objects to the United States' determination. The Claims Administrator shall promptly email copies of all
objections it receives to the Parties.
7. No later than 10 days prior to the Fairness Hearing on the Terms of the Consent Decree, the United States shall file with the Court copies of all objections received from the
Claims Administrator. In addition, no later than 10 days prior to the Fairness Hearing on
the Terms of the Consent Decree, the Parties shall file their responses, if any, to all
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objections received from the Claims Administrator. E. ENTRY OF THE CONSENT DECREE
If the Court determines that the terms of this Decree are fair, reasonable, and consistent with
Title VII, the Court shall enter the Decree at or following the Fairness Hearing on the Terms
of the Consent Decree. F. INDIVIDUAL RELIEF
1. Settlement Fund Within 30 days after the Date of Entry of this Decree by the Court, the City shall set aside the sum of $780,000.00 in its payroll account (with these funds hereinafter referred to as
the 'Settlement Fund").
2. Monetary Relief Awards from the Settlement Fund
a. The Settlement Fund shall be used by the City to make Backpay awards to eligible African-American and Hispanic Claimants.
b. The City shall be responsible for and remit to the appropriate taxing authorities the
employer portion of all federal and state payroll taxes applicable on any monetary relief award paid to a Claimant, including employer contributions to Medicare and the Social Security fund. Such taxes shall not be deducted from any Claimant's monetary relief award, and such amounts shall not be payable from the Settlement Fund. c. To the extent required by law, the City shall withhold from each Claimant's monetary
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relief award the employee portions of all federal and state payroll taxes, including federal income taxes, Medicare and Social Security taxes, and any other applicable taxes. Such amounts shall be deducted from the Settlement Fund, and the City shall remit such amounts to the appropriate taxing authorities in accord with applicable
law.
3. Preliminary Eligibility for Individual Relief a. Claimants potentially eligible for relief under this Decree include all African-American and Hispanic applicants for the fire cadet position in 2012 who took the NFSI and either:
i. Were considered by the City to have failed the NFS1 because they received a
score of less than 70 but passed the 12; ii. Were not permitted to proceed to the SOI because they received a score of less
than 75.06 but passed the 12; or iii. Passed the NFSI with a score of 75.06 or higher and passed the 12, but ranked
below the last applicant appointed from the 2012 eligibility list. b. Potentially eligible Claimants as defined in this Paragraph who are hired through the
Interim Hiring Process in Appendix B remain eligible to seek monetary relief and retroactive seniority. In order to be eligible for monetary relief under this Decree, a Claimant need not express an interest in, or be eligible for, a Priority Hire position or accept an offer of employment from the City. c. Within 30 days after the Date of Entry of this Decree, the City shall provide to the Claims
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Administrator mailing addresses and email addresses of all potentially eligible Claimants. Within 14 days following receipt of this information the Claims Administrator shall send each potentially eligible Claimant a copy of the Notice of Entry of Consent Decree and Interest-in-Relief Form attached to this Decree as Appendix D. Such notice shall be sent by e-mail and by certified U.S. mail, return receipt requested, to the addresses provided
by the City.
d. The Claims Administrator shall keep records of all notices sent pursuant to Paragraph 4.b. that are returned as undeliverable. Within 21 days of the mailing of the notices required by Paragraph 3.b, the Claims Administrator shall provide to the United States and the City a list of all delivered and undelivered notices, and a copy of all notices, envelopes and mail receipts for all persons to whom a notice was sent.
e. The Claims Administrator will conduct a reasonable search for an alternative address for any potentially eligible Claimant whose notice was returned as undeliverable, then promptly re-mail the notice to the alternative address for that individual by certified U.S.
mail, return receipt requested. If requested, the City shall provide to the Claims
Administrator any information reasonably available to the City that may allow the Claims Administrator to locate an alternative address for any person whose notice was returned as undeliverable.
4. Potentially Eligible Claimants to Submit Interest in Relief Form
a. Any Claimant who wishes to be considered for an award of individual relief under this Decree must return the completed Interest in Relief Form (Appendix D) to the Claims
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Administrator no later than 75 days from the Date of Entry of this Decree. Any Claimant who fails to do so shall be deemed to have waived any right to be considered for an award of individual relief under this Decree, except for good cause as determined by the United States and approved by the Court if the City objects to the United States' determination. b. The date the Interest in Relief Form was mailed or otherwise delivered to the Claims Administrator shall be deemed the date of return of the Claimant's form. In the event an Interest-in-Relief Form is returned by U.S. mail, but no date of mailing is indicated by a postmark of the United States Postal Service, or if the postmark is illegible, the date of return of the Interest in Relief Form shall be deemed to be five days prior to the date the form was received by the Claims Administrator. c. As soon as practicable upon receipt of an Interest in Relief Form, the Claims Administrator will forward copies of each returned Interest in Relief Form to the United States and to the City via electronic mail, to addresses to be specified by the Parties. 5. Priority Hiring Relief and Retroactive Seniority The Decree contemplates a process in which the United States creates a list of those preliminarily eligible for priority hire. The Court will then approve a final Priority Hire Candidate List following the fairness hearing on individual relief. The individuals on that approved list will be eligible to participate in the process described in Appendix E, and based on that process, the City will create the Priority Hire List.
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a. All Claimants who (i) submit a timely Interest in Relief form under Paragraph 4, above, and (ii) indicate affirmatively an interest in a Priority Hire position on their Interest in Relief form, shall be included in the process for determining Priority Hires described in this Paragraph.
b. Following the fairness hearing on individual relief described in Paragraph III.F.8 below, and the administration of the new lawful selection procedure developed under the Decree, the City shall create Priority Hire Lists of qualified candidates following the procedures in Appendix E. The names and scores of Claimants on the Priority Hire Lists shall remain confidential between the Parties and shall not be disclosed except by order of the Court, or as otherwise required by law.
c. The City shall provide each Priority Hire List created under Appendix E to the United States within five business days after it is created. The United States may object to any Claimant on a Priority Hire List by providing written notice of such objection to the City
within 10 business days of its receipt of the Priority Hire List. The United States and the
City shall meet and confer in good faith to resolve any objections made by the United
States. If the Parties are unable to resolve any objection(s), either Party may submit the issue to the Court for determination. The Court will find that any objection by the United States to a Claimant on a Priority Hire List is well-founded only if the United States establishes that the presence or position of the Claimant on the Priority Hire List did not
comply with the selection process established in this Decree.
d. Upon completion of the objection process described in Subparagraph c, above, the City shall designate 30 fire cadet job positions as Priority Hire positions. These Priority Hire
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positions shall be allocated as follows: twelve (12) shall be filled by Claimants from the approved African-American Priority Hire List; and eighteen (18) shall be filled by Claimants from the approved Hispanic Priority Hire List. e. The City shall offer employment as a fire cadet in the first cadet academy starting after completion of the selection process in Subparagraph c, above, to the Claimants in the highest six (6) places on the African American Priority Hire List, and the Claimants in the highest nine (9) places on the Hispanic Priority Hire List. f. The City shall offer employment as a fire cadet in the second cadet academy starting after completion of the selection process in Subparagraph c, above, to the Claimants in the remaining highest six (6) places on the African American Priority Hire List, and the Claimants in the remaining highest nine (9) places on the Hispanic Priority Hire List. g. The City shall make offers of employment to Claimants on the Priority Hire Lists in writing by e-mail with tracking capability to each Claimant's last known e-mail address
and by certified U.S. mail (return receipt requested). The offer of employment shall
prominently indicate: i. That the offer is a Priority Hire offer made pursuant to this Decree;
ii. That upon the successful completion of the fire cadet academy and
commissioning as an Austin firefighter, the Claimant will be entitled to Retroactive Seniority as provided by this Decree;
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iii. The beginning salary and the benefits the Claimant will receive if the offer is
accepted, as well as the salary and benefits the Claimant will be eligible to receive
after successful completion of the fire cadet training academy; iv. The date on which the Claimant will begin the fire cadet academy if the offer is
accepted; v. The respective telephone numbers and names at which the Claimant may contact
the United States and the City with any questions regarding the Priority Hire offer; and vi. That the Claimant has at least 15 days from the date on which the written offer of employment was sent to notify the City in writing whether the Claimant accepts the offer. Failure to do so shall constitute rejection of the offer and shall disqualify the Claimant from further eligibility for a Priority Hire. h. Each Claimant who accepts an employment offer under Paragraph 5 shall be deemed a Priority Hire for purposes of meeting the City's obligation under Subparagraph d, above. Acceptance of an employment offer under Paragraph 5, above, shall constitute an automatic withdrawal by the Claimant from any other Austin Fire Department hiring process in which the Claimant may be an active candidate at that time.
i. The City shall notify the United States within seven days of any rejection by a Claimant of a Priority Hire offer of employment, and shall provide the United States with a copy of
any written rejection from the Claimant.
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j. In the event a Claimant rejects a Priority Hire offer of employment, or begins employment as a fire cadet but subsequently resigns, dies, or is involuntarily terminated from employment prior to the date the Claimant is commissioned as an Austin firefighter, the City shall make a Priority Hire offer of employment to the highest remaining Claimant from the same Priority Hire List for a position in the next fire cadet academy. If that occurs, the Claimant accepting the employment offer shall be counted in place of the first Claimant for purposes of the meeting the City's priority hiring obligation in Subparagraph d, above.
k. On the date a Priority Hire is commissioned as a probationary firefighter following successful completion of the fire cadet academy, the City shall credit the Priority Hire with Retroactive Seniority as provided in Appendix A in the City's personnel and payroll records.
6. Determination of Claimants' Eligibility for Individual Relief
a. The United States, with the assistance of the Claims Administrator, shall determine each Claimant's Backpay share of the Settlement Fund such that the shares are distributed pro rata among all eligible and interested Claimants. The United States and the City, with the assistance of the Claims Administrator, shall determine the Claimants eligible to participate in the Priority Hire selection process under Appendix E.
b. No later than 105 days after the Date of Entry of this Decree, the United States shall provide the City with: (i) a preliminary Backpay Awards List that identifies all Claimants it finds potentially eligible for Backpay relief based on the Interest in Relief forms
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received by the Claims Administrator, and (ii) a preliminary Priority Hire Candidate List that identifies all Claimants it finds eligible to participate in the Priority Hire selection process under Appendix E based on the Interest in Relief forms received by the Claims
Administrator. If the United States determines that a Claimant who sought Backpay and/or Priority Hire relief is not eligible for such relief, the submissions under this subparagraph shall include the reason(s) for that determination. c. No later than 135 days after the Date of Entry of this Decree, the City shall notify the United States in writing if it objects to any of the United States' determinations regarding
preliminary eligibility for Backpay and/or Priority Hire relief. To the extent that the parties are unable to resolve the City's objections informally, such resolution shall be subject to the dispute resolution procedures in Part IV of this Decree. 7. Filing of Individual Relief Lists
No later than 180 days after the Date of Entry of the Decree, the United States shall file
under seal with the Court and serve upon the City: (i) the preliminary Backpay Awards List
stating, for each Claimant who timely returned an Interest in Relief form, the share of the
Settlement Fund that the United States has determined should be awarded to the Claimant; and (ii) the preliminary Priority Hire Candidate List with individuals listed in alphabetical order by last name. The City shall have a right to respond to unresolved objections to the United States' determinations.
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8. Fairness Hearing on Individual Relief
a. Upon filing the lists described in Paragraph 7, above, the United States shall simultaneously move the Court to hold a Fairness Hearing on Individual Relief to allow the Court to determine whether the preliminary Backpay Relief Awards List and preliminary Priority Hire Candidate List should be approved or amended. The Court will provide the Parties with at least 90 days' notice of the date and time set for the Fairness Hearing on Individual Relief.
b. No later than 60 days before the date set for the Fairness Hearing on Individual Relief, the Claims Administrator shall send, by electronic mail, with tracking capability, to each Claimant at their last known e-mail address: (1) a cover letter, in the format attached as Appendix F, notifying the Claimant of the determinations regarding the Claimant's eligibility for individual relief under the Decree, the reason(s) for any determination that the Claimant is ineligible for any particular form of requested relief, and the Claimant's proposed share of monetary relief as stated on the preliminary Backpay Awards List, if
any; and (ii) a Notice of Fairness Hearing on Individual Relief, Instructions for Filing an Objection to Individual Relief and an Objection Form, in the formats attached as Appendix G to this Decree. If an e-mail is not opened within seven days of the day it is
sent, the Claims Administrator will send the above-referenced materials via certified U.S. mail, return receipt requested.
c. A Claimant who wishes to object to any determination regarding individual relief as set out in the cover letter (Appendix F) for that Claimant must file written objections as follows:
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Objections must state the Claimant's name, mailing address, telephone number, and e-mail address, if any; set forth a specific description of the Claimant's basis for disputing the relief determinations in the Backpay Relief Awards Lists; include copies of all documentation supporting the objections; state the name, mailing and e-mail addresses, and telephone number of the Claimant's counsel, if any; and state whether the Claimant wishes the opportunity to be heard in court at the Fairness Hearing on Individual Relief.
ii. Objections shall be submitted by mailing a copy of the Objection to Determination of Individual Relief form in Appendix G by U.S. mail addressed to the Claims Administrator at the address provided by the Claims Administrator for this purpose.
iii. Objections must be postmarked to the above address no later than 30 days prior to the date set for the Fairness Hearing on Individual Relief.
iv. The Claims Administrator will promptly e-mail copies of all objections received simultaneously to both the United States and the City, using e-mail addresses to be specified by the Parties.
d. No later than 21 days prior to the date set for the Fairness Hearing on Individual Relief, the United States shall file with the Court copies of all objections received by the United States. For those objections received less than 21 days prior to the date set for the
Fairness Hearing on Individual Relief, the United States shall file copies of objections
received on a rolling basis, weekly.
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e. No later than ten days prior to the Fairness Hearing on Individual Relief, the Parties shall file their responses, if any, to all objections.
9. Approval of Final Backpay Awards List and Final Priority Hire Candidate List
a. At or following the Fairness Hearing on Individual Relief, the Court shall determine whether any objections to the preliminary Backpay Awards List or the preliminary Priority Hire Candidate List are well-founded. The Court may approve the lists as
submitted or, if the Court finds that any objection with respect to a Claimant is well
founded, shall amend the lists consistent with such finding.
b. The final Backpay Awards List and final Priority Hire Candidate List as approved by the Court will be final and binding on all Parties and interested persons, including without limitation any Claimant who received the notice provided in Appendix F.
c. The Court will find that an objection to either the preliminary Backpay Awards List or the preliminary Priority Hire Candidate List, including an objection to the amount of monetary relief to be awarded to a Claimant, is well-founded only if the Court finds that the determination reflected in such list was not reasonable, equitable, or consistent with the provisions of this Decree or Title VII.
10. Notice of Individual Relief Awards and Acceptance and Release a. No later than 30 days after the Court approves a final Backpay Awards List and a final Priority Hire Candidate List, either at or following the Fairness Hearing on Individual Relief, the Claims Administrator shall provide notice to each Claimant determined by the Court to be entitled to such relief. The notice shall be by e-mail to the last known e-mail
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address of the Claimant with confirmation of receipt and opening requested. The notice shall include the Notice of Award(s) of Individual Relief in the form set forth in Appendix H. If the Claimant is eligible to compete for a Priority Hire position, the notice will include a statement of the Claimant's eligibility for such relief, a description of the remainder of the Priority Hire selection process, and the Retroactive Seniority the Claimant will receive if the Claimant is ultimately made and accepts a Priority hire appointment as a fire cadet. If an e-mail is not opened within seven (7) days of the day it is sent, the Claims Administrator will send the notice via certified U.S. mail, return receipt requested. The Claims Administrator shall also provide to the Claimant:
An Acceptance of Relief and Release of Claims form as described in the following Paragraph of this Decree; and
ii. Any withholding forms necessary for the City to comply with its withholding obligations under law and Paragraph III.F.2 of this Decree.
b. As a condition of receiving a monetary award and/or consideration for priority hire, each Claimant otherwise entitled to such relief as indicated in the final Backpay Awards List and final Priority Hire Candidate List shall be required to execute an Acceptance of Relief and Release of Claims form as set forth in Appendix I of this Decree, along with all withholding forms if the Claimant is eligible for monetary relief, and return them to the Claims Administrator no later than 60 days after the Court approves the final Backpay Awards List and final Priority Hire Candidate List. The date the Acceptance of Relief and Release of Claims form was mailed or otherwise delivered to the Claims Administrator shall be deemed the date of return of the Claimant's form. In the event
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that an Acceptance of Relief and Release of Claims form is returned by US. mail but no date of mailing is indicated by a postmark of the United States Postal Service, or if the postmark is illegible, the date of return of the Acceptance of Relief and Release of Claims
form shall be deemed to be five days prior to the date the form was received by the Claims Administrator. A Claimant's failure to return an executed Acceptance of Relief
and Release of Claims form within the time allowed shall constitute a rejection of the offer of relief and shall release the Parties and the Claims Administrator from any further obligation under this Decree to make an award of relief to that Claimant.
c. No later than 75 days after the Court approves the final Backpay Awards List and final Priority Hire Candidate List, the Claims Administrator shall simultaneously forward to
the United States and the City copies of all executed Acceptance of Relief and Release of
Claims forms and withholding forms it received from Claimants named in those Lists.
d. If any Claimant listed on the final Backpay Awards List rejects a monetary relief award, the United States shall reallocate the amount of monetary relief allocated to that Claimant to the City for the recruitment of qualified Hispanic and African-American applicants for the position of fire cadet and/or efforts to expand the pool of qualified Hispanic and African-American applicants for the position of fire cadet.
e. No later than 30 days after receiving from the Claims Administrator a Claimant's executed Acceptance of Relief and Release of Claims forms and withholding forms under Subparagraph c, above, the City shall mail via certified U.S. mail (return receipt requested) a monetary relief award check to such Claimant. The amount of the monetary relief award check shall be the amount shown for the Claimant on the Final Backpay
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Awards List, less all appropriate taxes and other amounts withheld in accordance with Paragraph III.F.2.
f. No later than 30 days after the mailing of a monetary relief award check to a Claimant pursuant to Subparagraph e, above, the City shall provide to the United States a copy of such monetary check, along with a statement indicating the amounts withheld from such check and the purpose of each withholding.
g. No later than 30 days after the mailing of all monetary checks required under this Paragraph, the City shall provide to the United States a list of all checks that have been returned to the City as undeliverable, as well as a statement of the amount of funds remaining in the Settlement Fund. For all undelivered checks, if reasonable attempts to
locate the Claimant prove unsuccessful for 30 days, any amount remaining in the
Settlement Fund after such attempts will be used by the City for the recruitment of qualified Hispanic and African-American applicants for the position of fire cadet and/or efforts to expand the pool of qualified Hispanic and African-American applicants for the position of fire cadet, in a manner consistent with the purposes of this Decree.
h. No later than 60 days after the mailing of all monetary checks required under this Paragraph, the City shall provide to the United States a list of all checks that appear to have been delivered (no returned check), but which have not been cashed. The City shall mail a letter to such Claimants with un-cashed checks to inform such Claimants that the award will be canceled if the check is not cashed within 60 days from the date of that letter. The letter shall state that no further warnings regarding such distribution will be given. If upon the expiration of the 60 days there remain un-cashed checks, the City will
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provide the United States with a list of all such outstanding checks as well as a statement of the amount of funds remaining in the Settlement Fund. Any amount remaining in the Settlement Fund after such time will revert back to the City for use in the recruitment of qualified Hispanic and African-American applicants for the position of fire cadet and/or efforts to expand the pool of qualified Hispanic and African-American applicants for the position of fire cadet, in a manner consistent with the purposes of this Decree. 1. The City shall provide an accounting of how the remaining funds (from either undelivered or un-cashed checks) were spent on a quarterly basis, with the first report due 90 days after the initial reversion of funds. G. RECORD RETENTION AND PRODUCTION 1. While this Decree remains in effect, the City shall maintain all of the following records (including those created or maintained in electronic form): a. All applications for fire cadet positions; b. All non-privileged documents relating to the screening, evaluation or selection of
applicants for the position of fire cadet; c. All non-privileged documents known to the City relating to written or verbal
complaints made by any person or organization regarding discrimination on the basis of African-American race and/or Hispanic national origin in the appointment of fire cadets; d. All non-privileged documents relating to the evaluation, selection, designation, and/or
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employment of Priority Hires under this Decree; and e. All other non-privileged documents relating to the City's compliance with the
requirements of this Decree, including but not limited to documents relating to the payment or award of individual relief to any Claimant under this Decree.
2. Except as otherwise provided in this Decree, the City will make available to the United States, no later than 30 days after the United States so requests in writing, any non-
privileged records maintained in accordance with the preceding Paragraph of this Decree
and any additional non-privileged documents reasonably relating to any dispute arising
under the Decree. If such requests become unduly burdensome on the City, relief may be
sought from the Court. 3. When possible, without additional expense to the City, all records furnished to the United
States shall be provided in a computer-readable format to be agreed upon by the Parties prior to production. IV. DISPUTE RESOLUTION A. The Parties shall attempt in good faith to resolve informally any disputes that arise under
this Decree. If the Parties are unable to resolve the dispute expeditiously, either party
may submit the disputed issue to the Court for resolution upon 15 days' written notice to the other party, unless a different process or time period is specified in the applicable section of this Decree.
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B. Within 30 days after the United States so requests in writing, the City shall make available in Austin for interview or deposition (at the United States' option) any agent, employee or official of the City who the United States reasonably believes has nonprivileged knowledge of information necessary to verify the City's compliance with the terms of this Decree or to resolve a dispute arising under this Decree. If, after completing discovery, the United States maintains that the City has not complied with the Decree or the dispute still exists, within ten days after the United States communicates that fact to the City, the City may interview or depose any witness with knowledge regarding the matter in dispute. Under no circumstances may the City interview or depose any officials, agents or employees of the U.S. Department of Justice in this process in the absence of further Court order for good cause shown.
V. DURATION OF CONSENT DECREE
A. Unless otherwise ordered by this Court, and absent the pendency of any motion related to this Decree, this Decree shall expire without further order of the Court on the last to occur of the following events:
1. Upon fulfillment of the Parties' obligations regarding the individual relief to be
awarded under this Decree; 2. 30 days after the establishment of a final eligibility list based on the second
administration of the entry-level firefighter examination following the Date of Entry of this Decree; or
3. Four years from the entry of the Decree.
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B. If neither (1) nor (2) has occurred after the passage of four years from the Date of Entry of the Decree, either Party may move the Court for a status hearing to determine a procedure and timeline for fulfilling the Parties' obligations under this Decree. If both (1) and (2) have occurred and four years from the Date of Entry of the Decree have
passed, either Party may move to extend the Decree upon good cause shown. Through that process, the Decree may be extended for up to, and no more than, eight years from
the Date of Entry of this Decree. Extensions may be granted in increments as long as the final dissolution date is not later than eight (8) years from the Date of Entry of this
Decree. VI. COSTS AND FEES
A. Except as otherwise provided herein, each Party shall bear its own costs and expenses incurred as a result of obligations imposed by this Decree, including the cost of all notification and publication procedures described above, which will be borne by the City.
B. Each party shall bear its own costs, expenses, and attorney's fees incurred in this litigation.
VII. MISCELLANEOUS A. The Court shall retain jurisdiction over this Decree for the purpose of resolving any disputes or entering any orders that may be appropriate to implement the Decree. B. The Parties shall, at a minimum, meet quarterly (in person or by telephone, at the option of the Parties) to discuss any issues relevant to implementation of the Decree.
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C. To the extent of any conflict between this Decree and the requirements of any state or local law or regulation, the terms of this Decree shall control.
D. This Decree constitutes the entire agreement of the Parties, and supersedes all prior
agreements, representations, negotiations, and undertakings not set forth or incorporated herein.
E. Unless the United States has given express prior authorization for communication by other means, all written information and documents required to be delivered under this Decree to the United States by the City shall be sent via overnight delivery to:
Austin Fire Department Settlement Team Employment Litigation Section U.S. Department of Justice Civil Rights Division PHB, Room 4500 601 D Street NW Washington, DC 20579 F. Unless the City has given express prior authorization for communication by other means, all written information and documents required to be delivered under this Decree to the City by the United States shall be sent via overnight delivery to:
City of Austin Law Department
Attention: City Attorney Post Office Box 1088 Austin, Texas 78767-1088
Entry of this Consent Decree by the Court is approved and requested by the Parties as of the dates of their signatures below.
[Signatures on following pages]
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Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 45 of 46

Date: June 9, 2014

THE UNITED STATES OF AMERICA

JOCELYN SAMUELS

Acting Assistant Attorney General

By:

&Civil Rights Division
United States Department of Justice

I,

DELORA L. KENNEBREW (GA Bar No. 414320)

Chief

United States Department of Justice

Civil Rights Division

Employment Litigation Section

-&L
MEREDITH BURRELL (MD Bar, no number issued) Deputy Chief

SHAYNA BLOOM (DC BàrNo. 498105) TREVOR BLAKE (DC Bar No. 974319) Trial Attorneys United States Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, NW, PHB 4500
Washington, DC 20530 Telephone: (202) 616-9100 Fax: (202) 514-1005
E-mail: shayna.bloomusdoj.gov E-mail: trevor.blakeusdoj .gov
Counsel for the United States of America

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Case 1:14-cv-00533-LY Document 64 Filed 11/07/14 Page 46 of 46

KAREN KENNARD, CITY ATTORNEY B. LEE CRAWFORD, JR., DfYISION CHIEF

R. LAWRENCE ASHE, JR. PAUL R. BARSNESS

èn M. Kennard State Bar No. 11280700 Email: karen.kennard @austintexas.gov B. Lee Crawford, Jr. State Bar No. 05018520 Email: lee.crawford@austintexas.gov City of Austin Law Department Post Office Box 1088 Austin, Texas 78767-1088 Telephone: (512) 974-2268 Fax: (512) 974-2894
ATTORNEYS FOR DEFENDANT CITY OF AUSTIN

By:

Dated: Octobe

, 2014

R. Lawrence Ashe, Jr.

State Bar (Georgia) No. 024500

Email: rla@phrd.com

State Bar (Georgia) No. 597107

Email: prb@phrd.com

Parker, Hudson, Rainer & Dobbs LLP

1500 Marquis Two Tower

285 Peachtree Center Avenue

Atlanta, GA 30303

Telephone: (404) 523-5300

Fax: (678) 533-7730

ATTORNEYS FOR DEFENDANT CiTY OF AUSTIN

APPROVED AND SO ORDERED, this

day of

Parties are accordingly directed to comply with this Consent Decree.

, 2014. The

LEE UN ED STAT S DISTRICT JUDGE

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 Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 1 of 14
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:14−cv−00533−LY

CLOSED

United States of America v. City of Austin Assigned to: Judge Lee Yeakel Demand: $780,000 Related Case: 1:18−cv−00948−LY
Case in other court: USCA Fifth Circuit, 14−51132 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 06/09/2014 Date Terminated: 11/07/2014 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Candyce Danielle Phoenix U.S. Department of Justice,Civil Rights Division 950 Pennsylvania Avenue, NW, PHB 4031 Washington, DC 20530 202−616−3871 Email: candyce.phoenix@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shayna Bloom U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue NW Washington, DC 20530 202−616−9100 Fax: 202−514−1005 Email: shayna.bloom@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya Lagene Sacks U.S. Department of Justice 950 Pennsylvania Avenue, NW, PHB Room 4024 Washington, DC 20530 202−305−7781 Email: sonya.sacks@usdoj.gov TERMINATED: 08/18/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Toni Michelle Jackson U.S. Department of Justice Civil Rights Divsion 950 Pennsylvania Ave., NW PHB 4518 Washington, DC 20530 202−305−3194 Fax: 202−514−0655 Email: toni.jackson@usdoj.gov TERMINATED: 03/10/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trevor Blake U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue NW

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 2 of 14
Washington, DC 20530 202−616−9100 Fax: 202−514−1005 Email: trevor.blake@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Meredith Lynn Burrell U.S. Department of Justice, Civil Rights Division Employment Litigation Section 950 Pennsylvania Ave NW PHB Room 4902 Washington, DC 20530 (202) 305−9053 Fax: (202) 514−1105 Email: meredith.burrell@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant City of Austin

represented by Bernard Lee Crawford , Jr. Division Chief City of Austin Law Department 301 West 2nd Street 4th Floor Austin, TX 78767 United Sta 512−974−2421 Fax: 512−974−2312 Email: lee.crawford@austintexas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen M. Kennard City of Austin Law Department PO Box 1088 Austin, TX 78767−1088 (512) 974−2268 Email: karen.kennard@ci.austin.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul R. Barsness Parker Hudson Rainer & Dobbs, LLP 285 Peachtree Center Avenue, NE, Tower II Atlanta, GA 30303 (404) 420−4318 Fax: (404) 522−8409 Email: pbarsness@phrd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Lawrence Ashe , Jr. Parker Hudson Rainer & Dobbs, LLP 285 Peachtree Center Avenue, NE 1500 Marquis Tower II Atlanta, GA 30303 (404) 420−4320 Fax: (404) 522−8409 Email: lashe@phrd.com LEAD ATTORNEY

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 3 of 14

ATTORNEY TO BE NOTICED

Movant
International Association of Fire Fighters, Local 975 TERMINATED: 09/15/2014

represented by B. Craig Deats Deats Durst Owen & Levy, PLLC 1204 San Antonio Street Suite 203 Austin, TX 78701 (512) 474−6200 Fax: 512/474−7896 Email: cdeats@ddollaw.com TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas Cleveland Terrazas PLLC 4611 Bee Cave Rd. #306 B Austin, TX 78746 512−680−3257 Email: kterrazas@clevelandterrazas.com TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes Weisbart Springer Hayes LLP 212 Lavaca St − Ste 200 Austin, TX 78701 (512) 652−5780 Fax: 512/682−2074 Email: sjanes@wshllp.com TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Andres Arreola TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Andrew Blair TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 4 of 14

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Caroline Bull TERMINATED: 09/15/2014

represented by Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
John Edmiston TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Daniel Hatcherson TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Steven Herrera TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 5 of 14

ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
William Kana TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Matthew Martin TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Matthew Rettig TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 6 of 14

ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
Meagan Stewart TERMINATED: 09/15/2014

represented by B. Craig Deats (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Terrazas (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara E. Janes (See above for address) TERMINATED: 09/15/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/09/2014 06/09/2014 06/09/2014
06/09/2014 06/09/2014 06/09/2014

# Docket Text
1 COMPLAINT (Filing fee $ 400.), filed by United States of America. (Attachments: # 1 Civil Cover Sheet)(Burrell, Meredith) (Entered: 06/09/2014)
2 REQUEST FOR ISSUANCE OF SUMMONS by United States of America. (Burrell, Meredith) (Main Document 2 replaced on 10/15/2014) (klw). (Entered: 06/09/2014)
3 Joint MOTION for Leave to Exceed Page Limitation Regarding Memorandum in Support of Joint Motion for Provisional Entry of Consent Decree by United States of America. (Attachments: # 1 Proposed Order, # 2 Exhibit Joint Motion for Provisional Entry of Consent Decree, # 3 Exhibit Memorandum in Support of Motion for Provisional Entry of Consent Decree, # 4 Exhibit 1 to the Memorandum in Support of Provisional Entry of the Consent Decree, # 5 Exhibit 2 to the Memorandum in Support of Provisional Entry of the Consent Decree, # 6 Exhibit 3 to the Memorandum in Support of Provisional Entry of the Consent Decree, # 7 Exhibit 4 to the Memorandum in Support of Provisional Entry of the Consent Decree, # 8 Exhibit 5 to the Memorandum in Support of Provisional Entry of the Consent Decree, # 9 Exhibit Proposed Order Granting Motion for Provisional Entry of the Consent Decree)(Burrell, Meredith) (Entered: 06/09/2014)
Case Assigned to Judge Lee Yeakel. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (td) (Entered: 06/10/2014)
4 JOINT MOTION for Provisional Entry of the Consent Decree and Scheduling of the Fairness Hearing on The Consent Decree by United States of America, City of Austin. (Attachments: # 1 Proposed Order)(td). Added MOTION for Hearing on 6/10/2014 (td). (Entered: 06/10/2014)
5 Memorandum in Support, filed by City of Austin, United States of America, re 4 MOTION for Provisional Entry of the Consent Decree and Scheduling of the Fairness Hearing on The Consent Decree filed by Defendant City of Austin, Plaintiff United States of America (Attachments: #(1) Exhibit 1 to the Memorandum in Support of Provisional Entry of the Consent Decree, #(2) Exhibit 2 to the Memorandum in Support of Provisional Entry of the Consent Decree, #(3) Exhibit 3 to the Memorandum in Support of Provisional Entry of the Consent Decree, #(4) Exhibit 4 to

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 7 of 14

06/10/2014
06/10/2014 06/10/2014 06/11/2014 06/11/2014 06/12/2014 06/12/2014 06/13/2014
06/13/2014 06/13/2014
06/13/2014
06/13/2014
06/13/2014

the Memorandum in Support of Provisional Entry of the Consent Decree, #(5) Exhibit 5 to the Memorandum in Support of Provisional Entry of the Consent Decree)(td) (Entered: 06/10/2014)
Notice of Correction: re 3 Joint MOTION for Leave to Exceed Page Limitation Regarding Memorandum in Support of Joint Motion for Provisional Entry of Consent Decree. When filing a Motion for Leave to Exceed Page Limitations in the AUSTIN Division, the document which exceeds the page limit should NOT be attached to the motion, but rather filed as a separate pleading. We will take the necessary steps to pull the Joint Motion from the Motion for leave to exceed page limit and get it added to the docket record. No further action is required. Please note this information for future filing purposes (td) (Entered: 06/10/2014)
6 Summons Issued as to City of Austin. (td) (Entered: 06/10/2014)
7 Letter/Correspondence to R. Lawrence Ashe, Jr. & Paul R. Barsnass re: non−admission status. (td) (Entered: 06/10/2014)
8 ORDER GRANTING 3 Motion for Leave to Exceed Page Limits. Signed by Judge Lee Yeakel. (kkc) (Entered: 06/11/2014)
9 ORDER GRANTING 4 Motion for Provisional Entry of the Consent Decree and Scheduling of the Fairness Hearing on The Consent Decree (Fairness Hearing set for 7/8/2014 at 9:30 AM before Judge Lee Yeakel). Signed by Judge Lee Yeakel. (kkc) (Entered: 06/11/2014)
10 MOTION to Appear Pro Hac Vice by Bernard Lee Crawford, Jr for R. Lawrence Ashe, Jr. ( Filing fee $ 100 receipt number 0542−6572518) by on behalf of City of Austin. (Attachments: # 1 Proposed Order on Motion for Admission Pro Hac Vice of R. Lawrence Ashe, Jr.)(Crawford, Bernard) (Entered: 06/12/2014)
11 MOTION to Appear Pro Hac Vice by Bernard Lee Crawford, Jr for Paul R. Barsness ( Filing fee $ 100 receipt number 0542−6573167) by on behalf of City of Austin. (Attachments: # 1 Proposed Order on Motion for Admission Pro Hac Vice of Paul R. Barsness)(Crawford, Bernard) (Entered: 06/12/2014)
12 NOTICE of Non−Opposition by United States of America re 10 MOTION to Appear Pro Hac Vice by Bernard Lee Crawford, Jr for R. Lawrence Ashe, Jr. ( Filing fee $ 100 receipt number 0542−6572518), 11 MOTION to Appear Pro Hac Vice by Bernard Lee Crawford, Jr for Paul R. Barsness ( Filing fee $ 100 receipt number 0542−6573167) (Bloom, Shayna) (Entered: 06/13/2014)
13 ORDER (Fairness Hearing on the Consent Decree reset for 10/29/2014 at 9:30 AM before Judge Lee Yeakel). Signed by Judge Lee Yeakel. (kkc) (Entered: 06/13/2014)
14 ORDER GRANTING 10 Motion for R. Lawrence Ashe, Jr. to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (kkc) (Entered: 06/13/2014)
15 ORDER GRANTING 11 Motion for Paul R. Barsness to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Lee Yeakel. (kkc) (Entered: 06/13/2014)
16 MOTION to Join Intervene by International Association of Fire Fighters, Local 975, Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Proposed Order)(Terrazas, Kevin) (Entered: 06/13/2014)
17 APPENDIX to 16 MOTION to Join Intervene by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 8 of 14

06/13/2014 06/17/2014 06/18/2014 06/18/2014 06/19/2014 06/20/2014 06/24/2014
06/25/2014
06/27/2014 06/27/2014
06/27/2014
06/27/2014 07/03/2014 07/11/2014

Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Terrazas, Kevin) (Entered: 06/13/2014)
18 RULE 7 DISCLOSURE STATEMENT filed by International Association of Fire Fighters, Local 975. (Terrazas, Kevin) (Entered: 06/13/2014)
19 Unopposed MOTION for Extension of Time to File Response/Reply as to 16 MOTION to Join Intervene by City of Austin. (Attachments: # 1 Proposed Order Granting Unopposed Motion for Extension of Time to Respond to Motion to Intervene)(Crawford, Bernard) (Entered: 06/17/2014)
20 SUMMONS Returned Executed by United States of America. City of Austin served on 6/17/2014, answer due 7/8/2014. (Bloom, Shayna) (Entered: 06/18/2014)
21 ORDER GRANTING Defendant's Unopposed 19 Motion for Extension of Time to File Response to 16 Motion to Intervene. Deadline is now 06/27/14. Signed by Judge Lee Yeakel. (klw) (Entered: 06/18/2014)
22 Unopposed MOTION for Extension of Time to File Response/Reply as to 16 MOTION to Join Intervene by United States of America. (Attachments: # 1 Proposed Order)(Bloom, Shayna) (Entered: 06/19/2014)
23 ORDER GRANTING Plaintiff's Unopposed 22 Motion for Extension of Time to File Response to 16 Motion to Intervene. Signed by Judge Lee Yeakel. (klw) (Entered: 06/20/2014)
24 Memorandum in Opposition to Motion, filed by United States of America, re 16 MOTION to Join Intervene filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson (Attachments: # 1 Proposed Order)(Blake, Trevor) (Entered: 06/24/2014)
25 Unopposed MOTION for Extension of Time to File Response/Reply as to 24 Memorandum in Opposition to Motion,, by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. (Attachments: # 1 Proposed Order)(Terrazas, Kevin) (Entered: 06/25/2014)
26 ORDER GRANTING Intervenors' Unopposed 25 Motion for Extension of Time to File Reply to the Response to the 16 Motion to Intervene. Signed by Judge Lee Yeakel. (klw) (Entered: 06/27/2014)
27 Response in Opposition to Motion, filed by City of Austin, re 16 MOTION to Join Intervene filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Barsness, Paul) (Entered: 06/27/2014)
28 DEFICIENCY NOTICE to Paul R. Barsness: re 27 Response in Opposition to Motion. Pursuant to the Administrative Policies and Procedures, Proposed Orders are Required when a Response to a Motion is filed. DO NOT RE−FILE the entire document. Please, file ONLY the Proposed Order. Use the "ATTACHMENT" event from the menu and LINK the Proposed Order to your Response. In the Docket Text, type "(Proposed Order)". (klw) (Entered: 06/27/2014)
29 ATTACHMENT Proposed Order to 27 Response in Opposition to Motion,, by City of Austin. (Barsness, Paul) (Entered: 06/27/2014)
30 ANSWER to 1 Complaint by City of Austin.(Barsness, Paul) (Entered: 07/03/2014)
31 REPLY to Response to Motion, filed by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 9 of 14

07/18/2014 07/18/2014 07/21/2014
07/23/2014 07/23/2014 07/23/2014 09/15/2014 09/17/2014 09/19/2014
09/19/2014

Stewart, re 16 MOTION to Join Intervene filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson (Terrazas, Kevin) (Entered: 07/11/2014)
32 MOTION for Leave to File Sur−reply Opposing Motion to Intervene by City of Austin. (Attachments: # 1 Proposed Order, # 2 Exhibit Sur−reply Opposing Motion to Intervene)(Barsness, Paul) (Entered: 07/18/2014)
33 MOTION for Leave to File Surreply Regarding Motion to Intervene by United States of America. (Attachments: # 1 Proposed Filing, # 2 Proposed Order)(Blake, Trevor) (Entered: 07/18/2014)
34 Response in Opposition to Motion, filed by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart, re 33 MOTION for Leave to File Surreply Regarding Motion to Intervene filed by Plaintiff United States of America, 32 MOTION for Leave to File Sur−reply Opposing Motion to Intervene filed by Defendant City of Austin (Attachments: # 1 Proposed Order)(Terrazas, Kevin) (Entered: 07/21/2014)
35 ORDER GRANTING 32 Motion for Leave to File SurReply; GRANTING 33 Motion for Leave to File SurReply. The parties are warned that the court will not consider any further surreplies regarding the motion to intervene. Signed by Judge Lee Yeakel. (kkc) (Entered: 07/23/2014)
36 SURREPLY in Opposition to Motion, filed by United States of America, re: 16 MOTION to Join Intervene filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson. (kkc) (Entered: 07/23/2014)
37 SUR−REPLY in Opposition to Motion, filed by City of Austin, re: 16 MOTION to Join Intervene filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson. (kkc) (Entered: 07/23/2014)
38 ORDER DENYING Intervenors' 16 Motion to Intervene. Signed by Judge Lee Yeakel. (klw) (Entered: 09/15/2014)
39 Opposed MOTION for Reconsideration re 38 Order on Motion to Join by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order Motion, # 6 Proposed Order Expedited Consideration)(Terrazas, Kevin) (Entered: 09/17/2014)
40 RESPONSE to Motion, filed by City of Austin, re 39 Opposed MOTION for Reconsideration re 38 Order on Motion to Join filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson (Ashe, R.) (Entered: 09/19/2014)
41 Memorandum in Opposition to Motion, filed by United States of America, re 39 Opposed MOTION for Reconsideration re 38 Order on Motion to Join filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson (Attachments: # 1 Proposed Order)(Blake, Trevor) (Entered: 09/19/2014)

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 10 of 14

09/19/2014 09/22/2014
10/08/2014 10/08/2014
10/08/2014
10/17/2014 10/17/2014
10/17/2014 10/17/2014 10/17/2014 10/17/2014 10/17/2014 10/17/2014 10/17/2014

42 ATTACHMENT Proposed Order to 40 Response to Motion,, by City of Austin. (Ashe, R.) (Entered: 09/19/2014)
43 REPLY to Response to Motion, filed by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart, re 39 Opposed MOTION for Reconsideration re 38 Order on Motion to Join filed by Intervenor Matthew Rettig, Intervenor Steven Herrera, Intervenor Caroline Bull, Intervenor Andrew Blair, Intervenor Meagan Stewart, Intervenor Andres Arreola, Intervenor William Kana, Intervenor John Edmiston, Intervenor Matthew Martin, Intervenor International Association of Fire Fighters, Local 975, Intervenor Daniel Hatcherson (Terrazas, Kevin) (Entered: 09/22/2014)
44 ORDER DENYING 39 Motion for Reconsideration re 38 Order on Motion to Join. Signed by Judge Lee Yeakel. (klw) (Entered: 10/08/2014)
45 Appeal of Order entered by District Judge 44 , 38 by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. ( Filing fee $ 505 receipt number 0542−6886152) (Terrazas, Kevin) (Entered: 10/08/2014)
NOTICE OF INTERLOCUTORY APPEAL as to 44 Order on Motion for Reconsideration, 38 Order on Motion to Join by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. Filing fee $ 505, receipt number 0542−6886152. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (klw) (Entered: 10/08/2014)
46 Joint MOTION for Final Approval of the Consent Decree by United States of America. (Attachments: # 1 Proposed Order)(Bloom, Shayna) (Entered: 10/17/2014)
47 Memorandum in Support, filed by United States of America, re 46 Joint MOTION for Final Approval of the Consent Decree filed by Plaintiff United States of America (Attachments: # 1 Appendix A − Keough Declaration, # 2 Appendix B − E−Mailed Notice, # 3 Appendix C − U.S. Mail Notice, # 4 Appendix D − Newspaper Notice, # 5 Appendix E − Crawford Declaration, # 6 Appendix F − Objections Received By Category, # 7 Appendix G − Attending Objectors, # 8 Appendix H − Siskin Supplemental Declaration, # 9 Appendix I − Siskin CV, # 10 Appendix J − Jones Supplemental Declaration, # 11 Appendix K − Paulsen Declaration)(Bloom, Shayna) (Entered: 10/17/2014)
48 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
49 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
50 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
51 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
52 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
53 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
54 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 11 of 14

10/17/2014 10/17/2014 10/17/2014 10/22/2014 10/22/2014 10/29/2014
10/29/2014 10/29/2014 11/05/2014
11/07/2014 11/07/2014 11/12/2014
11/14/2014
11/14/2014
11/18/2014 11/25/2014

55 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
56 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
57 APPENDIX to 47 Memorandum in Support of Motion,, by United States of America. (Bloom, Shayna) (Entered: 10/17/2014)
58 ORDER of USCA re Notice of Appeal − Interlocutory: IT IS ORDERED that appellant's motion for stay pending appeal is DENIED. IT IS FURTHER ORDERED that appellant's motion to expedite the appeal is DENIED. (klw) (Entered: 10/22/2014)
NOTICE of Certification of the Electronic Record on Appeal accepted by the USCA Fifth Circuit as to Notice of Appeal − Interlocutory. There are no exhibits related to this appeal. (klw) (Entered: 10/23/2014)
59 Minute Entry for proceedings held before Judge Lee Yeakel: Fairness Hearing held on 10/29/2014. Objector (Movant's) Demonstrative Exhibits filed. Joint Proposed Consent Decree due 10/29/14 at 5 p.m.; Joint proposed Finding of Facts due 11/05/14; Written Order to follow. (Minute entry documents are not available electronically.). (Court Reporter Arlinda Rodriguez.)(klw) (Entered: 10/29/2014)
60 Movant's Exhibit List for 59 Fairness Hearing.(klw) (Entered: 10/29/2014)
61 Objector's RESPONSE to 47 Joint Memorandum in Support of Final Approval of Consent Decree and Responses to Objections. (klw) (Entered: 10/29/2014)
62 (Joint) Proposed Findings of Fact, Conclusions of Law, and Final Order approving Consent Decree re: 46 Joint Motion for Final Approval of the Consent Decree by City of Austin. (Crawford, Bernard) Modified on 11/5/2014 to create link to underlying motion (klw). (Entered: 11/05/2014)
63 FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL ORDER APPROVING CONSENT DECREE. Signed by Judge Lee Yeakel. (klw) (Entered: 11/07/2014)
64 CONSENT DECREE. Signed by Judge Lee Yeakel. (Attachments: # 1 Appendix A−H)(klw) (Entered: 11/07/2014)
65 MOTION to Stay Case and Request for Expedited Determination by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. (Attachments: # 1 Proposed Order)(Terrazas, Kevin) (Entered: 11/12/2014)
66 NOTICE of Attorney Appearance by Toni Michelle Jackson on behalf of United States of America. Attorney Toni Michelle Jackson added to party United States of America(pty:pla) (Jackson, Toni) (Main Document 66 replaced on 11/14/2014) (klw). (Entered: 11/14/2014)
67 Response in Opposition to Motion, filed by United States of America, re 65 MOTION to Stay Case and Request for Expedited Determination filed by Movant Matthew Rettig, Movant Steven Herrera, Movant Caroline Bull, Movant Andrew Blair, Movant Meagan Stewart, Movant Andres Arreola, Movant William Kana, Movant John Edmiston, Movant Matthew Martin, Movant International Association of Fire Fighters, Local 975, Movant Daniel Hatcherson (Attachments: # 1 Proposed Order)(Jackson, Toni) (Entered: 11/14/2014)
68 ORDER DENYING Movants' 65 Motion to Stay Consent Decree and Request Expedited Dertermination. Signed by Judge Lee Yeakel. (klw) (Entered: 11/18/2014)
69 Transcript filed of Proceedings held on October 29, 2014, Proceedings Transcribed: Fairness Hearing. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 12 of 14

12/01/2014
12/01/2014
01/16/2015 02/09/2015 02/19/2015 03/03/2015 03/03/2015
03/04/2015 03/10/2015 05/05/2015 05/07/2015 05/13/2015 05/13/2015 05/14/2015

days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 12/16/2014, Redacted Transcript Deadline set for 12/26/2014, Release of Transcript Restriction set for 2/23/2015, Appeal Record due by 12/10/2014, (Rodriguez, Arlinda) (Entered: 11/25/2014)
70 Appeal of Final Judgment 63 , 68 , 64 by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. ( Filing fee $ 505 receipt number 0542−7019200) (Terrazas, Kevin) (Entered: 12/01/2014)
NOTICE OF APPEAL following 70 Notice of Appeal (E−Filed), by Andres Arreola, Andrew Blair, Caroline Bull, John Edmiston, Daniel Hatcherson, Steven Herrera, International Association of Fire Fighters, Local 975, William Kana, Matthew Martin, Matthew Rettig, Meagan Stewart. Filing fee $ 505, receipt number 0542−7019200. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (jk) (Entered: 12/01/2014)
NOTICE of Certification of the Supplemental Electronic Record on Appeal as to Notice of Appeal − Interlocutory and 70 Notice of Appeal (E−Filed) accepted by the USCA Fifth Circuit. Record also contains 1 Envelope of Exhibits. (klw) (Entered: 01/20/2015)
71 Letter from USCA received for Notice of Appeal re: supplement of the record. (klw) (Entered: 02/09/2015)
NOTICE of Certification of the Second Supplemental Electronic Record on Appeal as to Notice of Appeal − Interlocutory and 70 Notice of Appeal accepted by the USCA Fifth Circuit.(klw) (Entered: 02/19/2015)
72 MOTION to Withdraw as Attorney by United States of America. (Jackson, Toni) (Entered: 03/03/2015)
73 DEFICIENCY NOTICE to Toni Michelle Jackson: re 72 MOTION to Withdraw as Attorney. Proposed Orders are Required when a non−dispositive Motion (or Amended Motion) is filed. DO NOT RE−FILE the entire document. Please, file ONLY the Proposed Order. Use the "ATTACHMENT" event from the menu and LINK the Proposed Order to your Motion. In the Docket Text, type "(Proposed Order)". (klw) (Entered: 03/03/2015)
74 ATTACHMENT Proposed Order to 72 MOTION to Withdraw as Attorney by United States of America. (Jackson, Toni) (Entered: 03/04/2015)
75 ORDER GRANTING 72 Motion for Toni Michelle Jackson to Withdraw as Attorney. Signed by Judge Lee Yeakel. (klw) (Entered: 03/10/2015)
76 Unopposed MOTION for Extension of Time to File Consent Motion for Fairness Hearing on Individual Relief by United States of America. (Attachments: # 1 Proposed Order)(Bloom, Shayna) (Entered: 05/05/2015)
77 ORDER GRANTING Unopposed 76 Motion for Extension of Time to File Consent Motion for Fairness Hearing on Individual Relief. Plaintiff's motion is due on or before 05/13/15. Signed by Judge Lee Yeakel. (klw) (Entered: 05/07/2015)
78 Consent MOTION for a Fairness Hearing on Individual Relief by United States of America. (Attachments: # 1 Proposed Order)(Bloom, Shayna) (Entered: 05/13/2015)
79 Consent Motion for leave to File Sealed Document (Attachments: # 1 Proposed Order, # 2 Sealed Document Preliminary Backpay Award List, # 3 Sealed Document Preliminary Priority Hire Candidate List) (Bloom, Shayna) (Entered: 05/13/2015)
80 ORDER GRANTING Plaintiff's 78 Motion for Fairness Hearing on Individual Relief. Hearing to be held on 08/21/15 at 9:30 a.m. Signed by Judge Lee Yeakel. (klw) (Entered: 05/14/2015)

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 13 of 14

05/14/2015 05/14/2015
05/22/2015
06/05/2015 06/05/2015 07/31/2015
07/31/2015 08/03/2015
08/11/2015
08/11/2015 08/11/2015 08/12/2015 08/17/2015 08/18/2015 08/21/2015 08/21/2015

Set Fairness Hearing for 8/21/2015 09:30 AM before Judge Lee Yeakel. (klw) (Entered: 05/14/2015)
81 ORDER GRANTING Plaintiff's 79 Motion for Leave to File the preliminary Backpay Relieft Awards List and Priority Hire Candidates List under seal. Documents are deemed filed and part of the record. Signed by Judge Lee Yeakel. (klw) (Entered: 05/14/2015)
82 Copy of USCA JUDGMENT/MANDATE Dismissing without Prejudice to the right of either party to reinstate the appeal by letter to the Clerk of this Court within 180 days from this date the Notice of Appeal − Interlocutory and 70 Notice of Appeal (E−Filed). Dismissal was granted with the intent of divesting the Court of Appeals of jurisdiction so that the District Court can exercise its jurisdiction in effectuating the settlement. Also, should the appeal be reinstated, the unions reply brief will be due 14 days from the date of reinstatement. (klw) (Entered: 05/22/2015)
83 Joint MOTION for Supplemental Relief by United States of America. (Attachments: # 1 Exhibit 1 (Fifth Circuit Order), # 2 Proposed Order)(Bloom, Shayna) (Entered: 06/05/2015)
84 ORDER GRANTING Joint 83 Motion for Supplemental Relief. Signed by Judge Lee Yeakel. (klw) (Entered: 06/05/2015)
85 NOTICE of Filing Objections by United States of America (Attachments: # 1 Exhibit Objections 1−12)(Bloom, Shayna) Modified on 8/3/2015 to note that SEALED objections contained within 86 Motion for Leave to File Under Seal are considered filed but are voluminous and will not be duplicated in this entry. (klw). (Entered: 07/31/2015)
86 Consent Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document Objections 1−12, # 2 Proposed Order) (Bloom, Shayna) (Entered: 07/31/2015)
87 ORDER GRANTING USA's 86 Motion for Leave to File Objections under Seal. IT IS FURTHER ORDERED THAT the United States may file, not under seal, redactedversions of potential claimants' objections. Signed by Judge Lee Yeakel. (klw) (Entered: 08/03/2015)
88 Consent Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document [Amended Preliminary Backpay Award List], # 2 Sealed Document [Amended Preliminary Priority Hire Candidate List], # 3 Proposed Order) (Bloom, Shayna) (Entered: 08/11/2015)
89 RESPONSE to Objections to Individual Relief Determinations by United States of America. (Attachments: # 1 Exhibit [Keough Declaration], # 2 Proposed Order)(Bloom, Shayna) (Entered: 08/11/2015)
90 RESPONSE to Objections Filed and Request for Determination of Disputed Issue by City of Austin. (Barsness, Paul) (Entered: 08/11/2015)
91 ORDER GRANTING 88 Motion for Leave to File the Amended Preliminary Backpay Relief Awards List and Amended Preliminary Priority Hire Candidate List under seal. Signed by Judge Lee Yeakel. (klw) (Entered: 08/13/2015)
92 MOTION to Withdraw as Attorney by United States of America. (Attachments: # 1 Proposed Order)(Sacks, Sonya) (Entered: 08/17/2015)
93 ORDER GRANTING 92 Motion for Sonya Sacks to Withdraw as Attorney. Signed by Judge Lee Yeakel. (klw) (Entered: 08/19/2015)
94 ORDER re: Objections to Individual Relief and Approving Award of Settlement and Backpay. Signed by Judge Lee Yeakel. (klw) (Entered: 08/24/2015)
95 Minute Entry for proceedings held before Judge Lee Yeakel: Fairness Hearing held on 8/21/2015. Court approves the award of backpay. Order entered regarding settlement. (Minute entry documents are not available electronically.). (Court Reporter Arlinda Rodriguez.)(klw) (Entered: 08/27/2015)

Case: 1:14-cv-533 As of: 12/24/2018 09:20 AM CST 14 of 14

09/02/2015
09/18/2015 09/22/2015 09/23/2015 10/02/2015 10/26/2015 01/06/2016 01/21/2016 11/01/2018

96 Transcript filed of Proceedings held on August 21, 2015, Proceedings Transcribed: Fairness Hearing. Court Reporter/Transcriber: Arlinda Rodriguez, Telephone number: 512−391−8791. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 9/23/2015, Redacted Transcript Deadline set for 10/5/2015, Release of Transcript Restriction set for 12/1/2015, (Rodriguez, Arlinda) (Entered: 09/02/2015)
97 MOTION for Determination of Disputed Issue and Notice of Inability to Comply with Consent Decree by City of Austin. (Attachments: # 1 Proposed Order)(Crawford, Bernard) (Entered: 09/18/2015)
98 Consent MOTION for Extension of Time to File Response/Reply as to 97 MOTION for Determination of Disputed Issue and Notice of Inability to Comply with Consent Decree by United States of America. (Attachments: # 1 Proposed Order)(Bloom, Shayna) (Entered: 09/22/2015)
99 ORDER GRANTING Plaintiff's 98 Consent Motion for an Extension of Time toRespond to the Motion for Determination of Disputed Issue. Signed by Judge Lee Yeakel. (klw) (Entered: 09/23/2015)
100 Memorandum in Opposition to Motion, filed by United States of America, re 97 MOTION for Determination of Disputed Issue and Notice of Inability to Comply with Consent Decree filed by Defendant City of Austin (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Phoenix, Candyce) (Entered: 10/02/2015)
101 ORDER DENYING 97 Motion for Determination of Disputed Issue and Notice of Inability to Comply with Consent Decree filed 09/18/2015. Signed by Judge Lee Yeakel. (ml) (Entered: 10/26/2015)
102 Exhibit Letter instructing Movant to pick up their exhibits. (klw) (Entered: 01/06/2016)
Movant's EXHIBITS from the Fairness Hearing have been DESTROYED.(klw) (Entered: 01/21/2016)
103 ADVISORY TO THE COURT by City of Austin. (Crawford, Bernard) (Entered: 11/01/2018)