In the summer of 1972 the Denver Civil Service Commission administered a written, entry-level firefighter examination for then anticipated vacancies on the Denver fire department to be caused by the impending retirements of several firefighters at the beginning of 1973. Among the hundreds of applicants who took the written examination were dozens of Hispanic and Black applicants who had completed a rigorous tutoring program that spring and early summer which was financed by a federal grant. The intended purpose of the grant was to better prepare the program participants for the various phases of the upcoming examination.
The federal grant was predicated on an ever-growing, nationwide concern about the gross under-representation of Hispanics and Blacks employed as policemen and firefighters on the police and fire departments of several major cities across the country including Denver.
The Hispanic and Black applicants who took the commission’s 1972 written examination, including most of those who completed the tutoring program, did very “poorly” on the written examination which resulted in very few of these applicants actually passing the written examination which was the first phase of the testing process. Failure of the written examination obviously eliminated an applicant from further consideration for appointment to the Denver fire department.
Several months earlier the commission had also administered a similar, entrylevel written examination for the position of police officer on the Denver police department which, needless to say, demonstrated similar results insofar as the passage rate of Hispanics and Blacks was concerned. Justice Michael Bender, presently a member of the Colorado supreme court, who, at the time, was an attorney in private practice, filed an action in the United States district court in 1972, styled as Hogue v. Bach, on behalf of females, Hispanics and Blacks, who participated in the testing process but were unsuccessful, alleging that the commission’s entry-level, written examination for the position of police officer and other required “qualifications” were discriminatory and in violation of applicable federal employment laws. The Mexican American Legal Defense and Educational Fund (MALDEF) provided justice bender with some limited assistance in the prosecution of the Hogue lawsuit.
Retired assistant chief Frank Quintana, who had participated as an instructor in the above-referenced, federally-financed tutoring program, became very alarmed at the dismal passage rates of the Hispanic and Black applicants who took the 1972 written firefighter examination, especially those who had completed the tutoring program, which prompted him to contact attorneys at MALDEF in Denver regarding his personal concern about the validity of the examinations being administered by the commission. MALDEF is a civil rights organization which, at the time, was engaged in numerous legal actions in state and federal courts in several southwestern states striving to improve the lot of and vindicate the constitutional and statutory rights of Mexican Americans and other minorities in the areas of voting rights, public education, police abuse, prisoners’ rights, public employment, private employment and other areas.
Chief Quintana was particularly concerned about the dismal results of the 1972 written firefighter examination due to the fact that he was intimately familiar with the skills, abilities, and intelligence of those young Hispanic and Black men who had completed the tutoring program yet failed the written examination as he was convinced, based on his first-hand knowledge of their abilities and intelligence, that they had the “right stuff’ in comparison to skills and abilities of fellow firefighters with whom he had worked for many years in the past. After some preliminary analysis of the examination results with a local statistician, the MALDEF attorneys agreed with chief Quintana that there was, indeed, a “problem” with the commission’s written examination and agreed to engage in litigation challenging, not only the written examination, but the other “qualifications” required of applicants by the commission in order to even take the written examination. The general contention was that the “problems” that Hispanics and Blacks were experiencing were not the result of any lack of skills, abilities or intelligence of the young Hispanics and Blacks who took the examination but with the examination itself.
Specifically, MALDEF’s contention was that the examination administered and the required “qualifications” making an applicant eligible to test in the first place (i.e. height requirement, high school diploma, good credit rating, etc.) had little to do with measuring an applicant’s ability to perform the job of firefighting but served as artificial barriers to exclude otherwise qualified Hispanics and Blacks from appointment as firefighters.
Four young men, Claude Bedan, Silfred Villarreal, Michael Dabney and Carl Vance, who tested but were unsuccessful, agreed to act as the named-plaintiffs in a class action lawsuit challenging the commission’s written examination and other required “qualifications” as being in violation of applicable federal law. The challenge was commenced in January of 1973 with the filing of the federal class action lawsuit styled as Bedan, et, al., V. Bach, et al., Cuvuk Actuib c-4662 against the commission and its members. The lawsuit involved issues very similar to those in Hogue case and justice bender provided some limited legal assistance to the MALDEF lawyers during the early stages of the case to get the lawsuit “off the ground” and moving.
In furtherance of the challenge, MALDEF employed the services of nationally recognized testing experts and statisticians from the University of California at Berkley, Long Beach State University, Colorado State University and University of Denver to assist in the preparation of the case for trial in federal district court. Also assisting the MALDEF attorneys at one critical stage of the case was an experienced litigator from Washington, D.C. Associated with the lawyers’ committee for civil rights under law, a nonprofit civil rights organization. In may of 1973, the Bedan plaintiffs filed a motion seeking a preliminary injunction and temporary restraining order (TRO) against the commission to prevent the anticipated appointments of new firefighters in June of that year until such time as a hearing on the merits of the plaintiffs’ complaint for a permanent injunction could be heard by the district court. On the morning that the motion for a TRO was to be heard, with the stern “encouragement ” of the judge, the parties settled the dispute on a temporary basis by agreeing that the June appointments would be on a one-for-one basis (one minority for each white applicant appointed) and any other appointments to be made thereafter would be made on the same basis until the ultimate trial on the merits of the plaintiffs’ claims could be heard by the court.
The matter was set for trial on the merits in June of 1974 at which time the plaintiffs, armed with their testing experts, were fully prepared for the anticipated successful attack on the commission’s written examination and required “qualifications”. However, the judge, once again, “encouraged” the parties to explore a permanent settlement of the dispute.
The plaintiffs and the commission, which provided for the continuation of the onefor- one hiring arrangement until such time as minorities comprised 20% of the Denver fire department’s firefighter workforce, agreed an “eleventh-hour” settlement on. The commission also agreed to eliminate the high school diploma requirement and the height requirement and further to intensify its efforts to recruit qualified minority applicants. The agreement of the parties was put into the form of a consent decree thus making the terms and conditions of the settlement a court order subject to the continuing jurisdiction of the court. Annual reports regarding the commission’s progress under the terms of the consent decree were required to be filed with the court and served upon plaintiff’s counsel for the purpose of allowing plaintiffs’ counsel to monitor the commission’s compliance with the court’s order until such time as the 20% goal was achieved and the consent decree would then expire on its own terms unless the plaintiffs’ counsel disagreed that the goal had been achieved.
Approximately ten years later, the commission advised plaintiffs’ counsel that the 20% goal had been achieved. Plaintiffs’ counsel disputed the commission’s assertion. The commission then moved the district court for an order terminating the consent decree asserting that the 20% goal had been reached. The Bedan plaintiff’s counsel opposed the termination of the order on the basis that the commission was including Asians as “minorities” in its numbers. There was no question that Asians were considered to be a protected class under the applicable guidelines propounded by the Equal Opportunity Commission, but the Bedan class action was filed on behalf of Hispanics and Blacks – not Asians. At stake were two more firefighter positions, which could have been filled by Hispanics and Blacks.
The district court heard the arguments of counsel for the parties and subsequently ruled that the commission had satisfied its obligations under the court’s order on the theory that the language of the consent decree used the term “minority” and did not specifically define the term as applying only to Hispanics and Blacks notwithstanding the fact that the original Bedan complaint specifically defined plaintiff’s class as Hispanic and Black applicants. The district court rejected the contention of plaintiff’s counsel that Asians should not have been included in the “minority” numbers. Thus, the district court terminated the continuation of the consent decree. Plaintiffs’ counsel then appealed the district court’s ruling to the United States court of appeals for the tenth circuit but, unfortunately, the district court’s ruling was affirmed on appeal.
Chief Quintana and plaintiffs’ counsel had clearly recognized back in 1974 when the Bedan case was originally settled that at some point in the not-too-distant future, when the ” new kids on the block” sought promotions to the supervisory ranks, that a second lawsuit would probably be necessary to challenge the commission’s anticipated, continued use of then-existing time-in-grade requirements to qualify to test for the position of lieutenant and the award of excessive points for seniority which would, no doubt, negatively impact Hispanic and Black firefighters seeking promotion to the rank of lieutenant. What was not anticipated, however, at least by the plaintiff’s counsel was the “backlash” that emanated from the Bedan consent decree, i.e. discriminatory job assignments, denial of participation in leagues, disparate discipline, etc. As a result of the verbal attacks and abuse which started even before the Bedan case was resolved and which continued thereafter, the moving forces behind that case anticipated that those individuals who were willing to challenge the commission’s promotion practices and well as other discriminatory employment practices occurring in the firehouses by putting their names on the “dotted-line” as named-plaintiffs might very well be subjected to various forms of abuse and retaliation in the day-to-day performance of their duties as firefighters. Therefore, chief Quintana and others committed to the cause of improving the lot of Hispanics and Blacks on the department decided to form a non-profit organization to serve as the primary named-plaintiff in the lawsuit to hopefully insulate those individuals who were willing to act as individually named-plaintiffs from future abuse and retaliation once the lawsuit was filed. Thus, F.I.R.E. was born and the prognostication that a second would be necessary came to pass with the filing of Firefighters Incorporated For Racial Equality, et. V. Bach, et al., civil action no. 79-k-119, in early 1979.
The case included the primary challenge to the commission’s continued use of the excessive time-in-grade requirement to test for the position of lieutenant, the excessive award of seniority points for department service, and the lack of minority participation on promotional oral boards, all of which negatively impacted the promotional opportunities of otherwise qualified Hispanic and Black firefighters. In addition, the plaintiffs’ challenge included an attack on certain dayto- day discriminatory practices regarding job assignments, participation in leagues, discipline, etc.
The purpose for which F.I.R.E. was originally intended worked well as most firefighters who agreed to be individually named-plaintiffs “behind” plaintiff F.I.R.E. in the lawsuit stuck with the case throughout the arduous and difficult legal process with the exception of one firefighter who couldn’t handle the “heat” in the firehouse after the filing of the case and withdrew as an individually named-plaintiff. This reference is not made to be critical of or otherwise to embarrass this individual but simply to demonstrate that it was not easy for the individually named-plaintiffs.
The case proceeded to the lengthy trial on the merits before the honorable John L. Kane, U.S. district judge, who subsequently ruled in favor of F.I.R.E. and the individually named-plaintiffs and ordered the commission to significantly reduce the time-in-grade requirements to test for the position of lieutenant; to significantly reduce the award of seniority points; to implement a procedure, with input from the plaintiffs, designed to ensure minority participation on the promotional oral boards; and to implement a grievance board, with input form the plaintiffs, designed to allow minority firefighters to have their grievances heard and determined if such firefighter believed that he or she was being discriminated against on the basis of ethnicity or race.
Unfortunately, the commission to the United States court of appeals for the tenth circuit appealed judge Kane’s ruling. While the case was on appeal, the U.S. Supreme court issued a decision in an unrelated case, which, in essence, changed the standard of proof to show intent to discriminate thus, making the plaintiffs’ burden of proving discriminatory employment practices more difficult. The F.I.R.E. case was then remanded to the district court for further proceedings in light of the U.S. Supreme court’s recent decision with instructions to apply the new standard of proof.
After the case was remanded to the district court, the plaintiffs requested that they be allowed the opportunity to conduct additional discovery, which request was granted by judge Kane. Subsequent to the completion of the additional discovery, the action was subsequently settled for some, but not all, of the relief that was originally ordered by judge Kane after the original trial on the merits. Under the facts of the case, the new standard of proof was going to make it well nigh impossible to prove the required discriminatory intent without very convincing evidence.
Prior to the settlement, several individual members of F.I.R.E. provided invaluable volunteer assistance to plaintiffs’ counsel, spanning a period of several days, pouring over and scrutinizing decades of minutes of commission meetings going back to the inception of that body looking for evidence to establish the required showing of discriminatory intent on the part of the commission and its members. As a result of this review, numerous instances of blatant discrimination by today’s standards were uncovered. However, several federal judges in other cases when required to make similar determinations, would give little weight to such indicia of discrimination when such evidence occurred during periods when segregation was the “order of the day”. In so many words, the federal courts, in these other decisions, were saying, “the discrimination is definitely there, but that’s just the way it was back then” with regard to the evidentiary value of such evidence. In the face of these rulings, the F.I.R.E. plaintiffs decided to settle the lawsuit.
As indicated above, there were several significant forms of relief agreed upon by the parties in the settlement of the F.I.R.E. case including a reduction of the timein- grade required in order to test for the position of lieutenant, a reduction in the number of additional seniority points to be added to examination scores and minority participation on promotional oral boards which enhanced the promotional opportunities of Hispanics and Blacks seeking promotion to the rank of lieutenant. Although the F.I.R.E. case was not a “total” victory as it was at the time of judge Kane’s original decision, it was a victory nonetheless and constituted another step down the road to ethnic and racial equality for members of the Denver fire department.
The entirety of the F.I.R.E. case as well as the unsuccessful appeal of the district court’s ruling on the 20% issue in the Bedan case was financed by F.I.R.E. and its members. Despite, the one “defeat” on the last issue which remained in the Bedan case, F.I.R.E. has served its members and the Denver community well as it has “caused” the taking of very significant steps by the commission and its members in the direction of making the Denver fire department a much better organization today than before.