Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73-C-2080 -- Prentice H. Marshall, Judge .
Before Swygert and Pell, Circuit Judges, and Baker, District Judge.*fn*
At issue in this appeal is whether the district judge abused his discretion when he permitted the City of Chicago to strike a 1973 sergeant's promotional roster without promoting 111 of 400 white Chicago police officers who would remain eligible for promotion if the roster were to remain in effect. Appellants-intervenors argue that the remedy approved by the district court failed to comport with state law and violated principles of equity. We reject both contentions and affirm the district court's decision approving the City's promotional plan and denying the intervenors' motion to enjoin the striking of the 1973 promotional roster.
This protracted litigation began in August 1973 when the United States filed a complaint alleging inter alia that the promotional practices of the Chicago Police Department reflected a pattern and practice of discrimination based on race and sex, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.*fn1 In March 1974, Louis Arado and other white police officers who held places among the top 400 on a 1973 sergeant's promotional roster were granted leave to intervene as defendants in this action.*fn2 That promotional roster was based on the results of a written sergeant's examination, departmental efficiency ratings, and seniority. In November 1974, the district judge entered a preliminary injunction prohibiting any further use of the 1973 sergeant's promotional roster until further order of the court because the written examination on which the roster was based had a racially disproportionate impact against minority candidates and was not job-related. United States v. City of Chicago, 385 F. Supp. 543 (N.D.Ill.1974). To fill vacancies in the rank of sergeant, the City proposed and the district judge approved a plan to promote numerous "temporary" sergeants not to be selected from the 1973 sergeant's roster. In January 1976, after a trial on the merits, the district judge entered a memorandum decision reaffirming his November 1974 finding of unlawful discrimination in promotions. In an implementing order of February 2, the district judge agreed to allow the temporary sergeants to be made permanent. He further ordered that 40% of the officers promoted to sergeant be black or Spanish-surnamed. At its option, the City was allowed to use the 1973 roster in determining promotions according to a 60-40 white-minority ratio.*fn3
Upon the motion of the Arado intervenors, the permanent appointment of any sergeants was stayed, pending appeal to this court. In 1977, we affirmed the district court's ruling that the 1973 sergeant's examination discriminated against minority candidates for promotions and was not shown to be job- related. United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977). But we agreed with the Arado defendants that with the quotas imposed, the district court erred in allowing the City to make promotions purely at the discretion of the Police Department rather than on the basis of the 1973 roster. We stated:
The temporary appointments to sergeant were made completely at the discretion of the Police Department. The (Illinois Municipal) Code appears to have been designed exactly to prevent this exigency. . . . Promotions to sergeant after the forty percent quota has been filled 35 must be made from a roster derived pursuant to state law.
In footnote 35, we noted:
Fulfillment of the forty percent promotion quota, as in the case of the hiring quota, is subject to the availability of "qualified" black and Hispanic applicants. Again, this language presumably directs the Police Department to select black and Hispanic patrol officers to fill the quota from the applicable eligibility list-in this case, the 1973 roster.
On February 18, 1977, the Arado intervenors moved the district court for an order requiring all existing vacancies to be filled on a permanent basis from the 1973 sergeant's roster. The City responded by filing a plan to fill all 285 vacancies then existing in the rank of sergeant from the 1973 roster and then to strike that roster. In March 1977, the Arado intervenors objected to the City's proposal and moved that the 1973 roster be retained until the top 400 persons on that roster were promoted.
In March 1978, with no decision by the district court on their March 1977 motion, the Arado intervenors moved to enjoin the City from appointing a new round of "temporary" sergeants. In May 1978, the City filed another promotional plan which proposed filling the then-existing 117 vacancies from the 1973 roster and then striking the list. Candidates would be promoted, in their respective racial or ethnic categories, in the order in which their names were ranked on the roster. To satisfy the mandated racial quota, some candidates would be promoted who were not within the top 400 names on the roster. The Arado intervenors again objected to striking the 1973 roster.
At a June 23, 1978 hearing, the district court approved the City's plan and denied the motion by the Arado intervenors to enjoin the City from striking the roster. Findings of fact and conclusions of law were made at that time. Then on June 30, 1978, the intervenors moved for reconsideration on the basis of Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), which had been decided a few days after the district court decision. In April 1979, the district court denied the motion for reconsideration and entered an order approving the City's May 1978 promotional plan and denying the motion of the Arado intervenors for an injunction against striking the 1973 roster. He also entered an order stating that any new promotion made from the 1973 roster had to be approved by the court.
At the oral argument in this appeal, counsel for both parties agreed that a new written sergeant's examination has been given and a 1979 sergeant's promotional roster has been compiled. In November 1979, on a motion by the Arado intervenors, the district judge enjoined the City of Chicago, which had not yet formally ...