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Capone v. City of Columbia

United States District Court, D. South Carolina, Columbia Division

December 2, 2014

Terry H. Capone, Plaintiff,
City of Columbia, Defendant

For Terry H Capone, Plaintiff: Ashley Cole Story, LEAD ATTORNEY, Cromer and Mabry, Columbia, SC; James Lewis Cromer, Julius Wistar Babb, IV, LEAD ATTORNEYS, J Lewis Cromer and Associates, Columbia, SC.

For City of Columbia, Defendant: Susan M Fittipaldi, W Allen Nickles, III, LEAD ATTORNEYS, Nickles Law Firm, Columbia, SC.



The plaintiff, Terry H. Capone, filed this employment case alleging racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (" Title VII"), 42 U.S.C. § § 2000e, et seq.; violation of 42 U.S.C. § 1983; violation of the Fair Labor Standards Act of 1938 (" FLSA"), 29 U.S.C. § § 201, et seq.; and state law violations of the South Carolina Payment of Wages Act, SC Code Ann § 41-10-10, et seq.; against his employer, the City of Columbia. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC for a Report and Recommendation on the City of Columbia's motion for summary judgment. (ECF No. 37; Additional Attachments, ECF No. 38.) Capone filed a response in opposition (ECF No. 42; Additional Attachments, ECF No. 43), and the City filed a reply (ECF No. 47). Having reviewed the parties' submissions and the applicable law, the court finds that the defendant's motion should be granted.


The following facts are either undisputed or are viewed in the light most favorable to Capone, to the extent they find support in the record. Capone is a sixteen-year veteran of the Columbia Fire Department. Capone challenges the City's promotional testing system as racially discriminatory. He further claims that he was retaliated against for complaining about it, and also that he was paid improperly.

Although he was promoted to Battalion Chief in 2011, Capone believes his promotion was delayed because the City's testing system discriminates against African Americans.

The City's Promotion Process.

To advance within the fire department, firefighters must undergo a formal assessment process which includes an internal selection committee and a panel of evaluators from other fire departments. Beginning in 2007, William Tomes with the University of South Carolina Institute for Public Service and Policy Research took over the responsibilities for validating and administering the promotion process for Battalion Chiefs. Tomes and his team conducted a validation study which was used in the promotion process in 2009, 2011, and 2012. The study involved a job analysis, review of job descriptions, interviews with employees, and consultation with a racially diverse selection committee consisting of senior fire department staff. As a result, candidates are assessed for certain critical knowledge, skills, and abilities (KSAs).

One component of the promotional process involves a supplemental application, requiring candidates to answer four of six questions. Responses are graded for grammar (worth 20% of the grade) by the USC Institute team and for content (worth 80%) by the Department's selection committee. To advance to the next step of the process, a candidate must achieve a score of 70 on the supplemental application. Grading is anonymous and the graders do not consult among themselves. Graders utilize a rubric that is based on rank specifications and KSAs.

If successful, the candidate then participates in an " in basket" exercise based on KSAs which is designed to test the applicant's ability to organize, prioritize, and delegate employment responsibilities. Again, a rubric is utilized and grading is anonymous.

The third stage of the process requires a candidate to interview with a panel of subject matter experts selected from other fire departments. The USC Institute team selects the questions and provides a rubric to the panel members. All applicants are asked the same questions. Finally, if the candidate achieves a passing score, he or she must undergo a fire ground simulation in which a computer program generates a scenario and the candidate must simulate managing a fire scene. Role players in a separate room respond by radio to the candidate's instructions. All applicants face the same simulation scenario.

Candidates who successfully complete all four stages of the promotional process are interviewed by the fire chief, who asks the same general questions of each. Applicants are then ranked by total score, and selections for vacant Battalion Chief ...

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