A second test was announced Jan. 28, with the test set for March 4. Fourteen of the 16 lieutenants and six of the 21 relief drivers signed up by the Feb. 26 deadline, and Benton sent out a memo confirming the test date, according to department records.

Over the next three days, three of the 14 candidates for captain withdrew, and Benton canceled the test. Eight of the 11 remaining candidates were over 40. When asked for an explanation by Barry Carter, president of the local firefighters' union, Benton replied that the withdrawals, coupled with concerns raised by responses to a recent workplace survey, led to the cancellation, according to department records.

The complaint, signed by Carter and 11 others, said "the discrimination is indirectly evidenced by the timing of both cancellations because the decision was made only after younger members of the department withdrew their names from the promotional lists."

Herschel Dungey, the city's human resources director, said age had nothing to do with the decision.

"The union is trying to get something through the human rights commission that it failed to get during collective bargaining negotiations," Dungey said. "They think the sole criteria for promotion should be seniority. We disagree."

The 11 lieutenants who remained in the second testing pool were the 10 with the most seniority and the one with the least, according to department records. The candidates who withdrew ranked 12th, 15th and 17th.

Dungey also noted that none of the firefighters filed a grievance with the department. Carter said the issue isn't covered under the union's contract and the human rights commission was the mechanism that seemed to best suit the case.

At the request of City Manager Jim Zumwalt, city employees took part in the Best Places to Work in Kentucky 2008 survey, which was distributed in December, Dungey said. According to results compiled by the city, only one of 30 fire department employees who completed the survey agreed with the statements "Promotions in my workgroup are based on a person's ability" and "My work environment is fair for everyone."

"Clearly there is discontent in our ranks regarding our hiring and promotion process," said Steve Kyle, interim chief. "In order for us to gain credibility with our personnel, we clearly need to address our process."

Carter scoffed at the survey being cited as a reason for the cancellation. "They wait until the day before the test to cancel the test because of the survey? That may be their position, but it's a weak one."

Kyle and Dungey said they expect to send a written response to Andrew Coiner, chairman of the human rights commission, next week. Coiner said he and Lanny Davis, another commission member, will review the response and then try to set up mediation. If that fails, the issue will be considered in a public hearing before the full human rights commission.

"We would like to have the whole process resolved in 30 days," Coiner said, admitting that timetable may be difficult. "I don't think this one needs to sit on anybody's desk for too long."

The two sides could agree to abide by the human rights commission's findings or could appeal to circuit court.

Written by The Paducah Sun