Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 C 2080--Prentice H. Marshall, Judge.
Cummings, Wood, and Coffey, Circuit Judges.
This is another chapter in the lawsuit challenging the hiring and promotion practices of the Chicago Police Department. Plaintiff-appellee Thomas Earth was allowed to intervene in the suit on the ground that he was passed over for promotion to sergeant in violation of a court order directing that promotions be made according to rank on the 1979 sergeant's eligibility roster. Earth claimed he would have been promoted but for a recalculation of another officer's ranking one week before the promotions were made public. The district judge agreed with Earth's argument and granted his Petition for Promotion with back pay and benefits to December 5, 1986. We reverse.
On August 14, 1973, the United States filed an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other civil rights statutes, alleging discrimination in the hiring and promotional practices of the Chicago Police Department. Based on a finding of racial and sexual discrimination in hiring and promotion, Judge Prentice Marshall ordered various forms of relief, including that forty percent of future promotions to sergeant be reserved for eligible black or Spanish surnamed officers (1976 decree).*fn1 Eligible officers were those whose names appeared on the 1973 sergeant's eligibility roster, based on the 1973 Chicago Civil Service Commission's sergeant's examination, as well as departmental efficiency ratings and seniority. This court affirmed the finding of discrimination and imposition of mandatory hiring and promotional quotas. United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977). The district court subsequently permitted the City to strike the 1973 sergeant's eligibility roster and we held that that order was not inconsistent with Illinois law. United States v. City of Chicago, 631 F.2d 469, 472-73 (7th Cir. 1980). A new roster was posted in 1979 and an en banc panel of this court held that changed circumstances required modification of Judge Marshall's 1976 decree to reduce the minority promotional quota from forty percent to twenty-five percent. United States v. City of Chicago, 663 F.2d 1354 (7th Cir. 1981). In 1982, Judge Marshall ordered that five percent of promotions to sergeant be reserved for women regardless of race. App. Rec. #1077.
On December 17, 1986, the City informed the district court that it was making promotions to sergeant from the roster list in accordance with the 70%/25%/5% white male/ minority male/female quotas prescribed by the court. Given eighty anticipated promotions, the quotas required the promotion of twenty minority males, four females (white or non-white) and fifty-six white males. As of December 1, 1986 Earth had the fifty-sixth highest rank among white males awaiting promotion. At that time, the City, after discovering an error in the computation in Officer Joseph Gandurski's performance rating,*fn2 advanced Gandurski (a white male) one position ahead of Earth on the promotional eligibility list. As a result of the re-computation and advancement of Gandurski, Earth dropped to fifty-seventh on the eligibility list. Gandurski received the promotion.
On February 1, 1988, Earth filed a Petition to Intervene in the ongoing 1973 discrimination lawsuit, along with a Petition for Promotion and Other Relief, both on the ground that "he was passed over for promotion to sergeant because the City of Chicago failed to comply with the Court's orders superimposing a quota on the rank order list prepared from the results of the 1979 sergeant's test." He further claimed that "if Mr. Gandurski was promoted over petitioner because an 'error' had been corrected, this correction should not have been undertaken without notice to petitioner and leave of Court to dispel any question of chicanery."
The City did not object to Earth's intervention but did respond to his Petition for Promotion with an explanation for the advancement of Gandurski's ranking:
"In late 1976*fn3 pursuant to an internal investigation within the City's Police Department and the Department of Personnel, it was determined that the performance rating of patrol officer Joseph F. Gandurski for the period July through December, 1976 had been apparently altered without explanation. The score had been changed from 85.0 to 80.0 (Copy of rating card attached as Exhibit A). The investigation was triggered by a letter from officer Gandurski to former Police Superintendent Fred Rice dated October 21, 1986. (Copy of letter attached as Exhibit B). Officer Gandurski's letter was part of his attempt, ongoing since 1977, to correct what he believed to be a serious error which was having a detrimental affect [sic] on his career in the police department, specifically, on his rank on the 1979 sergeant's eligibility roster.
The City's investigations revealed information leading it to conclude that it was more likely than not that office [sic] Gandurski's performance rating was altered without justification. The sergeant who rated officer Gandurski acknowledged that he recalled giving a grade of 85.0 to the officer's performance for the period in question. (Copy of memorandum attached as Exhibit C). Officer Gandurski's performance ratings both before and after the period in question were in the 80's and lower 90's. Furthermore, the supervisor who would have approved the 1976 performance ratings had long since retired at the time of the investigation.
Based on the foregoing in November, 1986, the City made the decision to correct the 1976 performance rating which changed officer Gandurski's overall efficiency rating from 83.47 to 83.85. The correction resulted in a change in officer Gandurski's rank from 577 to 536 on the sergeant's eligibility list. (Order attached as Exhibit D).
The City's correction of officer Gandurski's 1976 performance rating was not the result of 'chicanery' as cavalierly suggested by the petitioner [footnote omitted]. Rather, it was a decision made after an investigation which revealed that it was the equitable thing to do. It was also a decision which did not in any way violate this court's orders that promotions be made in rank order from existing eligibility rosters with appropriate remedial quotas."
Notwithstanding the City's explanation, Judge Marshall granted Earth's Petition for Promotion and awarded full back pay and ...