                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-3676
                                  ___________

Firefighters' Institute for Racial       *
Equality, by and through its Chairman;   *
Robert Anderson; Charles Bates;          *
Donald Chambers; Michael Coleman;        *
Eric Driver; Kenneth Green; Leroy        *
Harris; Lonnie R. Hughes; Stanley        *
Johnson; Joseph Jones; John Lester;      *
Ronald Logan; James Morgan; Michael      *
Pickett; Zefpro Redding; Gary Ruffin;    *
Lawrence Sayles; Addington Stewart;      *
Nathanial Sutherland; Lloyd Tate;        *
Gilbert Vaughn; Derrick Webster;         *
David Williams,                          *
                                         *   Appeals from the United States
      Plaintiffs/Appellants,             *   District Court for the Eastern
                                         *   District of Missouri.
      v.                                 *
                                         *
City of St. Louis,                       *
                                         *
      Defendant/Appellee,                *
                                         *
St. Louis Firefighters Association Local *
73; Edwin F. Libby, Jr.; Dennis          *
Jenkerson; Jay Jennings; William         *
Schurwan; Dwight C. Cross; Mark          *
Bradshaw; Lawrence Reinecke; Robert *
Milani; Lawrence Auer; Steven            *
Neinhaus; Leo Kuchner; Larry             *
Donovan; Grant A. Berger; Scott          *
Speigel; William O. Hill; Bruce E.       *
Williams; Mark R. Duffy; Theodore      *
Richardson,                            *
                                       *
      Intervenor-Defendants/Appellees, *
                                       *
Gerald Jr. Jorden,                     *
                                       *
      Intervenor-Defendant/Appellee. *
                                       *
                                 ___________

                                  No. 99-4245
                                  ___________

Firefighters' Institute for Racial       *
Equality, by and through its Chairman;   *
Robert Anderson; Charles Bates;          *
Donald Chambers; Michael Coleman;        *
Eric Driver; Kenneth Green; Leroy        *
Harris; Lonnie R. Hughes; Stanley        *
Johnson; Joseph Jones; John Lester;      *
Ronald Logan; James Morgan; Michael      *
Pickett; Zefpro Redding; Gary Ruffin;    *
Lawrence Sayles; Addington Stewart;      *
Nathanial Sutherland; Lloyd Tate;        *
Gilbert Vaughn; Derrick Webster;         *
David Williams,                          *
                                         *
      Plaintiffs/Appellants,             *
                                         *
      v.                                 *
                                         *
City of St. Louis,                       *
                                         *
      Defendant/Appellee,                *
                                         *
St. Louis Firefighters Association Local *

                                         -2-
73; Edwin F. Libby, Jr.; Dennis        *
Jenkerson; Jay Jennings; William       *
Schurwan; Dwight C. Cross; Mark        *
Bradshaw; Lawrence Reinecke; Robert    *
Milani; Lawrence Auer; Steven          *
Neinhaus; Leo Kuchner; Larry           *
Donovan; Grant A. Berger; Scott        *
Speigel; William O. Hill; Bruce E.     *
Williams; Mark R. Duffy; Theodore      *
Richardson,                            *
                                       *
      Intervenor-Defendants/Appellees. *
                                ___________

                              Submitted: June 14, 2000

                                   Filed: August 11, 2000
                                    ___________

Before WOLLMAN, Chief Judge, BEAM, Circuit Judge, and PANNER,1 District
Judge.
                            ___________

BEAM, Circuit Judge.

       Firefighters' Institute for Racial Equality2 and twenty-two individual plaintiffs
(collectively FIRE) brought suit against the City of St. Louis (the City) and the St.
Louis Firefighters Association Local 73 (Local 73)3 for violations of 42 U.S.C. §§


      1
       The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
      2
          FIRE is an organization with a primarily African-American membership.
      3
     Local 73 represents all firefighters in negotiations with the City, but has a
membership that is primarily Caucasian.

                                          -3-
1981, 1988, and 2000e-2 (Title VII), and the Missouri Human Rights Act. The district
court4 granted summary judgment to the City and Local 73. FIRE appeals and we
affirm.

I.    BACKGROUND

       Barrett & Associates (Barrett), at the City's behest, developed, administered, and
scored a promotional exam for the rank of battalion fire chief, and provided a ranking
of candidates based on the results of the exam. The four-part exam tested job
knowledge and supervisory/managerial skills, had a fire scene simulation and an oral
briefing exercise. In 1997, seventy-eight fire captains took the exam, of whom fifty-
three were Caucasian and twenty-five were African-American. Twelve captains were
placed on the eligibility list, of whom ten were Caucasian and two were African-
American. FIRE brought suit, asserting that the disparate impact the test had on the
African-American candidates—with 18.8% of the Caucasian candidates being eligible
for promotion versus only 8% of the African-American candidates—violates Title VII,
sections 1981 and 1988, and the Missouri Human Rights Act.

       Over the course of discovery in this case, the district court granted a motion to
strike FIRE's expert witness, quashed subpoenas to two non-party witnesses, and
refused to compel the testimony of two non-party witnesses and the production of the
personnel files of the battalion chiefs promoted from the 1997 exam. After discovery
closed, the City and Local 73 moved for summary judgment on all claims. The district
court granted the motion, and also awarded costs to both the City and Local 73.




      4
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Misssouri.

                                          -4-
II.   DISCUSSION

      A.     Discovery

       Our review of a trial court's discovery decisions is very narrow. See Derby v.
Godfather's Pizza, Inc., 45 F.3d 1212, 1215 (8th Cir. 1995). "Reversal is inappropriate
absent a 'gross abuse of discretion resulting in fundamental unfairness in the trial of the
case.'" McGowan v. General Dynamics Corp., 794 F.2d 361, 363 (8th Cir. 1986)
(quoting Voegeli v. Lewis, 568 F.2d 89, 96 (8th Cir. 1977)).

      1.     Motion to Strike FIRE's Expert

       FIRE contends the district court erred when it granted a motion to strike FIRE's
expert for failing to meet the deadline for filing expert reports. There is no question,
however, that the expert's report was untimely. The district court set a deadline of
December 28, 1998, for disclosure of FIRE's expert and the expert report. FIRE named
an expert on that date, but did not provide a report. FIRE assured the court that the
report would be completed the first week of January, but failed to fulfill that promise
as well. When the district court held a hearing on the motion to strike on February 19,
1999, the report still had not been filed.

       Federal Rule of Civil Procedure 16 permits the district court to set deadlines for
the disclosure of evidence and to impose sanctions on a party for failing to meet a
deadline. See Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998).
Unless the failure to meet a deadline was either harmless or substantially justified, the
court may sanction a party by excluding its evidence. See id. at 1008-09.

         FIRE asserts it was substantially justified in not filing the report because the
City's initial disclosures were insufficient. However, FIRE did not raise this issue until
four months after the disclosures were due and two months after the expert report

                                           -5-
deadline. Additionally, FIRE provided no explanation for its delay in raising this issue.
Thus, even if we accepted this after-the-fact justification, it came far too late for us to
say the district court abused its discretion by striking FIRE's expert.

      2.     Quashing the Subpoenas Duces Tecum

       FIRE next asserts the district court erred in quashing subpoenas to two non-
parties. On April 19, 1999, the last day of discovery, FIRE served a subpoena duces
tecum upon Burroughs and Rockhill5 for its entire file on the St. Louis battalion chiefs
exam. The district court quashed the subpoena because it found the method of service
did not comport with Rule 45(b)(1). We agree. Rule 45(b)(1) requires FIRE to serve
the City with prior notice of commanded production of documents. It failed to serve
the City with such notice. Therefore, we find the district court's decision to quash the
subpoena was proper.

       On April 19, 1999, FIRE also served a subpoena upon Barrett for its exam
project file. The subpoena was sent by facsimile (fax) and also by regular mail on the
last day of discovery. The district court granted Barrett's motion to quash because
FIRE's service failed to comport with Rule 45.

       Rule 45(b)(1) requires that service be made by "delivering a copy" of the
subpoena to the person. FIRE contends that its service by fax and regular mail meets
the requirements of Rule 45(b)(1). We disagree. When a non-party is served, the
method of service needs to be one that will ensure the subpoena is placed in the actual
possession or control of the person to be served. See Doe v. Hersemann, 155 F.R.D.
630, 630 (N.D. Ind. 1994) (allowing service by certified mail). Although this
interpretation of Rule 45(b)(1) may allow service by other than personal delivery, it is


      5
     Burroughs and Rockhill offered a commercial exam preparation course to the
members of Local 73.

                                           -6-
not broad enough to include either fax or regular mail because the court cannot be
assured that delivery has occurred. Therefore, the district court properly quashed the
subpoena.

      3.     Motion to Compel

        FIRE contends the district court improperly denied its motion to compel: (1)
non-party witness Douglas Cribbs to attend a deposition; (2) non-party witness Steven
Kotraba to answer questions certified at his deposition; and (3) the City to produce the
entire personnel files of the eleven individuals who were promoted to battalion chief
as a result of the 1997 exam. The district court denied the motion to compel as
untimely. The case management order set a deadline of eleven days after the close of
discovery for all motions to compel. Discovery closed on April 19, 1999. FIRE filed
its motion on May 3, 1999—three days after the deadline. FIRE provided no reason
to justify missing the deadline. Therefore, the district court did not abuse its discretion
in denying the motion.

      B.     Summary Judgment

       We review a decision to grant summary judgment de novo looking at the
evidence in the light most favorable to the non-moving party. See Jolly v. Knudsen,
205 F.3d 1094, 1096 (8th Cir. 2000). The district court may grant a summary judgment
motion when there is no genuine issue of material fact and the moving party is entitled
to a judgment as a matter of law. See Fed. R. Civ. P. 56(c).

      "Title VII forbids the use of employment tests that are discriminatory in effect
unless the employer meets 'the burden of showing that any given requirement [has] . .
. a manifest relationship to the employment in question.'" Albemarle Paper Co. v.
Moody, 422 U.S. 405, 425 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424,
432 (1971)). If a plaintiff establishes a prima facie case of disparate impact from a

                                           -7-
testing procedure, then the employer has the burden to justify the procedure by
demonstrating that it is related to safe and efficient job performance and is consistent
with business necessity. See 42 U.S.C. § 2000e-2(k); see also Allen v. Entergy Corp.,
181 F.3d 902, 904 (8th Cir. 1999). Even if the employer can meet this burden, the
plaintiff can still prevail if he can show that there is an alternative selection method that
has substantial validity and a less disparate impact. See id.

       The district court found FIRE had established a prima facie case of disparate
impact resulting from the battalion chiefs exam. Thus, for purposes of this appeal, we
will assume the district court's finding was correct. Our assumption shifts the burden
to the City to show that the exam was job-related. FIRE contends the City's exam is not
job-related on three specific grounds: (1) three of the four sections were multiple
choice; (2) the test included twenty-five "first responder" questions; and (3) two of the
books on the reading list were difficult or impossible to obtain and were out-of-date.
Each of these contentions will be addressed in turn.

        First, FIRE asserts that the use of multiple choice questions violates precedent
set by this court in Firefighters Institute for Racial Equality v. City of St. Louis, 616
F.2d 350 (8th Cir. 1980). In that case, we found the multiple choice portion of the fire
captains exam was not job-related because FIRE presented extensive expert testimony
that showed skill at a fire captain's job could not be adequately measured by that type
of test. See id. at 357-59. And, the City did not adequately rebut that evidence. See
id.    FIRE's argument, in this case, rests solely on the this court's 1980 decision
regarding the fire captains exam. In this case, however, the City provided us with
ample evidence that demonstrates multiple choice questions can adequately measure
the skills of a battalion chief. FIRE did not present expert testimony or any other
evidence to refute the City's evidence. Therefore, we find the multiple choice format
is job-related for the 1997 battalion chiefs exam.




                                            -8-
       Second, FIRE asserts the "first responder"6 questions are not "job related." To
support this assertion, FIRE presented the affidavits of selected firefighters stating that
battalion chiefs do not have "first responder" duties. Barrett, however, reviewed
department operating procedures during the test development stage. The Standard
Operating Procedures became a part of the reading list that candidates were given and
from which all the test questions were drawn. Through its system of linking test
questions and all the answer choices to material on the reading list, Barrett
demonstrated how each of the test items was tied to a fire department Standard
Operating Procedure or specific department responses to different types of incidents.
Thus, the "first responder" questions are job-related.

        Third, FIRE contends the use of the books Managing People and Managing
Support Systems as resources for the exam violated professional standards because the
books were hard to find and the information contained in them was out-of-date.
However, Dr. Twymon, of Barrett, and Holly Krampfert, from the City's personnel
office, both contacted the publisher of the books before placing the books on the
reading list to ensure enough copies were available. Both were assured there was an
adequate amount of books. Additionally, it is undisputed that supervisory skills are
very important in the battalion chief position. These two books are published by the
International Society of Fire Service Instructors, and contain information specific to
supervision in the firefighting profession. FIRE does not point to any question on the
test or information in the book that was outdated at the time of the exam. Therefore,
we find the City demonstrated that these two books are job-related.

      FIRE's final argument against the validity of the test is that a commercial test
preparation course was offered to the members of Local 73. However, this course was
offered by a private test company who had no inside knowledge of the test contents.


      6
      A"first responder" is the first person to arrive on the scene who provides
emergency care and treatment to ill and injured people.

                                           -9-
The City did not sponsor the course nor did it know of its existence until after the test
had been administered. Thus, the course does not undermine the validity of the
battalion chiefs exam.

       Accordingly, we find the 1997 battalion chiefs exam was related to safe and
efficient job performance and consistent with business necessity. In addition, FIRE
failed to present any evidence of a less discriminatory procedure. Therefore, the
district court properly granted summary judgment to the City and Local 73 on the Title
VII disparate impact claim.

       Additionally, after carefully reviewing the record and applicable case law, we
agree with the district court that FIRE simply presented no evidence of intentional
discrimination necessary to support a claim under 42 U.S.C. §§ 1981 and 1988, and the
Missouri Human Rights Act, Missouri Revised Statutes § 213.055(3)(2). Thus, the
district court properly granted summary judgment on those claims. See 8th Cir. R.
47B.

      C.     Costs

       FIRE's final contention is that the district court erred in awarding costs to the
City in the amount of $64,143.81 and to Local 73 in the amount of $3,570.97. We
review the district court's decision to award costs for an abuse of discretion. See
Greaser v. Missouri Dep't of Corrections, 145 F.3d 979, 985 (8th Cir. 1998). Under
Rule 54(d), costs, other than attorney's fees, are allowed as a matter of course to a
"prevailing party." Fed. R. Civ. P. 54(d)(1). FIRE contends neither the City nor Local
73 is a "prevailing party" in this case because FIRE established a prima facie case and
because the City was seeking to overturn precedent. A "prevailing party," however,
is one "in whose favor a judgment is rendered, regardless of the amount of damages
awarded." Black's Law Dictionary 1145 (7th ed. 1999). In this case, judgment was


                                          -10-
rendered in favor of the City and Local 73, and thus, they are prevailing parties allowed
costs under Rule 54(d).

       Additionally, FIRE asserts that a majority of the City's expert witness costs are
prohibited under 28 U.S.C. § 1920. However, Federal Rule of Civil Procedure
26(b)(4)(c)(i) provides that "the court shall require that the party seeking discovery pay
the expert a reasonable fee for time spent in responding to discovery under this
subdivision." After carefully reviewing the parties' cost submissions, we find all the
costs charged were allowed either by statute or by the Federal Rules of Civil
Procedure. Therefore, the district court did not abuse its discretion in awarding fees
to the City or Local 73.

III.   CONCLUSION

       Accordingly, we affirm the judgment of the district court.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -11-
