Report: 'Reverse Discrimination' in New Orleans' Promotion Process

The sweeping changes to the city’s personnel system that New Orleans Mayor Mitch Landrieu pushed through three years ago may have ushered in an era of racial and political bias at the Fire Department, a new report alleges.

Fire Superintendent Timothy McConnell set aside higher test scores from dozens of candidates for promotion to captain in favor of lower-ranked applicants in September 2016, according to a ruling issued Thursday by the city's Civil Service Department.

Personnel Director Lisa Hudson said there were signs that McConnell engaged in “reverse discrimination” by picking lower-ranked black firefighters before higher-ranked white ones.

Hudson said 15 candidates should be retroactively promoted to fix the problem. She also recommended scrapping the “Great Place to Work” initiative, a set of changes to the civil service system requested by Landrieu.

The “seemingly arbitrary manner in which the superintendent selected candidates for promotion violates the Louisiana Constitution, which mandates a merit-based, competitive selection process, based on competitive examinations,” Hudson said.

Hudson’s sharply worded conclusion is a blow for the city as it defends the promotion of 41 firefighters to captain last year against the appeals of 47 firefighters who were passed over. However, its practical effect may be limited in the short term because the city can appeal to the Civil Service Commission.

The Civil Service Department staff has been hostile to the new personnel rules from the start, but in 2014 the commission overwhelmingly backed Landrieu’s “Great Place to Work” plan, which gave department directors like McConnell more flexibility to hire and promote.

In a statement, a city spokeswoman said McConnell was confident in his decisions.

“The Fire Department stands by its determination that it followed all civil service rules throughout this promotional process,” said Erin Burns. “The city will consult with its attorney prior to deciding whether to appeal the decision of the civil service personnel director.”

Meanwhile, an attorney for the New Orleans Fire Fighters Association hailed the Civil Service Department’s decision and called on the city to implement it.

“We’re very happy. The union wants a fair and transparent and merit-based system,” Christy Carroll said. “You can imagine how you might feel if you’ve been with this department seven or eight years, and you score high on the test and you’re passed over.”

Carroll said it’s not clear what will happen next because the “Great Place to Work” rules are so new. If the city appeals Hudson’s decision to the Civil Service Commission, or if the matter heads to the state 4th Circuit Court of Appeal after that, the firefighters could see their promotions entangled in years of litigation.

Hudson's ruling could set up a test case for the legality of the city's new personnel rules.

“We’ve just never been in this position before,” Carroll said.

In her 37-page decision, Hudson detailed a promotions process for captain that was long in the making. She said a test maker hired by the Civil Service Department crafted an examination that was meant to score candidates on 16 areas of knowledge.

A full 120 of the 128 candidates who took the test passed it. Under the old civil service system rules, McConnell would have been forced to pick the new captains from “bands” of candidates who scored roughly the same, exhausting the candidates in one band before moving on to the next.

But under the new rules, McConnell believed that he was at liberty to pick any of the 120 candidates who passed the test.

In addition, Hudson said, the Fire Department created its own parallel guidelines for promoting employees, which were never vetted by the Civil Service Department staff. Those guidelines, which included factors like training and disciplinary history, came out after the Civil Service Department had announced a list of firefighters eligible to apply for captain.

“There was a feeling that the rules changed mid-stream, and nobody really knew why some people were picked and some people were passed over. So there was a feeling of hopelessness from some guys,” Carroll said.

Under the Fire Department’s new guidelines, exam scores were just one of 15 criteria for promotion. McConnell also conducted interviews with dozens of candidates, although he said he did not keep notes from the meetings.

In the end, the superintendent promoted many candidates who scored low on the list, including one who placed 114th.

Some firefighters suggested that politics might have been at play. The union’s attorneys said that candidates were asked whether they supported going door-to-door to install smoke detectors, a longtime flashpoint between the union and Fire Department brass.

The city said that McConnell essentially chose from among a wide array of qualified candidates. “Once you consider the high total point value of the exam, there is not a huge point differential among the candidates who passed,” the city said.

Hudson said the Fire Department failed to create a scoring system for its own internal promotion rules. She added that even if the arbitrary promotions did not violate the Great Place to Work initiative, they did upset the state constitution’s insistence on merit-based personnel decisions.

She also applied an analysis of racial bias to determine whether race may have played a factor in the promotions.

"Almost half of the African-American candidates were promoted — compared to a little more than a quarter of the white candidates. ... It seems likely that race may have been a factor in who received a promotion,” she said.

Hudson said she suspected that “reverse discrimination” may have been at play with regard to gender as well. The two women who applied to become captains were both promoted, she said.

The city did not address the claim of racial bias in its final brief to the Civil Service Department, and Burns did not respond to a question on the issue. The attorney for the firefighters union, which represents black and white employees alike, took no position.

“None of the appellants, nor the union, took a position with regards to race or sex. We appealed based on violations of civil service rules and a violation of the constitution,” Carroll said.

In the end, Hudson recommended the promotion of 15 candidates who scored in the top 41 places but were passed over in either a first or second round of promotions. Two of them, however, were ultimately selected in the second round and would receive only a meager sum of extra back pay if the commission or the court upholds Hudson's recommendations.

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