had an adverse impact on minority candidates when used as a rank order device.
It is clear that a prima facie case of racial discrimination may be established by showing that a particular examination has an adverse racial impact on minority candidates. See, e.g., Bushey v. N.Y. State Civil Service Commission, 733 F.2d 220, 224-25 (2d Cir. 1984). A plaintiff seeking to make out a prima facie case typically applies to test results the "four-fifths" rule of the Equal Employment Opportunity Commission's Uniform Guidelines on Employment Selection, 29 C.F.R. § 1604.4(D).
Id. at 225-26.
Defendants in this case admit that neither the simulator portion of the Engineer examination nor either portion of the Captain examination had an overall adverse impact upon minority candidates. (Defendants' 12[m] Statement at paras. 10, 13; Joyce Aff. at 126-27.) They present uncontradicted evidence, however, that starting with the third promotion to Engineer from the 1986 Engineer eligibility list the minority success rate of promotion was less than 80% of the white success rate of promotion, and thus under the "four-fifths" rule the Engineer examination had an adverse impact on minority candidates when used as a rank order device. (Joyce Aff. at para. 10.)
Defendants go on to note that if a selection device has more of an adverse impact when used for a ranking device than it does otherwise (e.g. on a pass/fail basis), then it must be validated specifically for use in rank order selection. (Defendants' Mem. in Support at 19-20; Requests to Admit and Plaintiffs' Responses to Requests for Admission, Exhibit O at para. 2.) Defendants then present expert evidence that the Engineer examination was not and could not have been validated for making rank order promotions. (Barrett Aff. at para. 17.)
Plaintiffs assert, however, that there is a genuine issue of material fact as to whether the Engineer examination was validated for use as a rank order device. Plaintiffs cite the deposition of Robert T. Joyce, the City's Deputy Commissioner of Personnel, who stated, based upon a pilot study, that "we felt that [the simulator portion of the Engineer examination] could be satisfactorily used as a ranking device." (Joyce Dep. at 48.)
Mr. Joyce's testimony must be viewed in its entirety, however. Later, when asked specifically whether the Engineer's examination in fact even had been validated for the purpose of rank order assignments, Mr. Joyce responded "no." (Joyce Dep. at 246.) Indeed, corroborating defendants' expert, Mr. Joyce unequivocally stated that the Engineer examination was not and, given the circumstances faced by the City, could not have been validated for making rank order assignments. (Joyce Dep. at 246; Barrett Aff. at para. 17; see also Shepherd Dep. at 290-91.)
Thus, there is no genuine issue of material fact that at least the Engineer examination had an adverse impact on minority candidates when used as a rank order device and was not (and could not have been) validated for rank order use. The adverse impact of the Engineer examination further convinces this court that the defendants have sufficiently demonstrated a compelling interest justifying affirmative action promotions.
In summary, then, based upon the litigation history of the CFD's past hiring and promotion practices, the affirmative action provisions of the collective bargaining agreement between the City and the Union, the significant disparities between minority representation in the Engineer and Captain ranks and representation in the ranks immediately below them, and the discriminatory adverse impact of the Engineer examination on minorities, this court concludes that there is no genuine issue of material fact that the City had a strong basis in evidence for its conclusion that its affirmative actions promotions were necessary.
2. Narrowly Tailored To Accomplish a Remedial Purpose
However, not only must there be no genuine issue of material fact that plaintiffs had a compelling interest requiring remedial measures, but also the remedy chosen must be narrowly tailored to accomplish its purpose. Croson, 109 S. Ct. at 721.
In determining whether the City's affirmative action goals are appropriate this court must look to several factors, including:
the necessity for the relief and the efficacy of alternative remedies, the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.
Paradise, 107 S. Ct. at 1067. Careful scrutiny of these factors confirms that the City's policy of affirmative action promotions was narrowly tailored to serve its remedial ends.
First, given the City's compelling interest in remedying past discrimination the necessity for relief in this case is great. Moreover, the City determined that "no other approach [other than NRO promotions] would permit meaningful affirmative action progress." (See Defendants' Exhibits E and F.) Indeed, as defendants correctly note, since promotions to the ranks of Engineer and Captain could only be made from the ranks below them, a race-neutral method for expanding minority representation in the upper ranks, such as aggressive recruitment, was not possible.
Second, the City's affirmative action goals are sufficiently flexible and limited in duration. The plaintiffs repeatedly characterize the City's affirmative action plan as a 25% "set-aside" for minorities. (See, e.g., Plaintiffs' 12 Statement at paras. 15-16.) However, as defendants aptly point out, this characterization is not supported by the evidence. (Compare Hoskins Tr. at 31-33, cited by plaintiffs, to Defendants' Exhibits E and F.) In fact, it is clear that the affirmative action program at issue consists of a policy, promulgated in mid-1987, under which promotions to the ranks of Captain and Engineer would be made with the "goal" of having 20% offered to black candidates and 5% to Hispanic candidates. (Defendant's Exhibits E and F; Hoskins Dep. at 7.)
By definition, a goal for minority representation is more flexible than an unyielding quota. Moreover, under this particular goal no unqualified black or Hispanic candidate need be offered a promotion. On the contrary, there is no dispute that the black and Hispanic candidates promoted ahead of plaintiffs -- all of whom successfully completed their respective examinations -- were fully qualified for promotion. (Joyce Aff. paras. 12-13.) In fact, plaintiffs themselves allege that the promotional examinations for the ranks of Engineer and Captain are valid measures of the qualifications for candidates to those ranks. (First Amended Complaint, paras. 12, 27.)
It also is uncontested that the City's affirmative action goals are of limited duration -- applied for only three years or until a specified number of promotions have been made from the promotional lists at issue. Moreover, "to insure flexibility and to guarantee that the ratios are used only so long as they are necessary and appropriate, the affirmative action promotional goals will be reevaluated on an annual basis." (Defendant's Exhibit E at 4-5, Exhibit F at 4-5.)
Third, given the disparity between minority representation in the Engineer and Captain ranks and representation in the ranks immediately below them, the City's numerical goals are sufficiently related to the relevant labor market. This is especially true given that the City's stated policy is to review the goals annually to determine whether they are still necessary and appropriate; and in any event the City will eliminate the goals after three years or after a certain number of promotions have been made under them.
Finally, the City's goals neither create a bar to white advancement nor excessively burden white candidates for promotion. Under the City's policy white candidates will continue to be promoted to the ranks of Engineer and Captain at high levels. Moreover, as the Court has stated, " denial of a future employment opportunity is not as intrusive as loss of an existing job,' . . . and plainly postponement imposes a lesser burden still." Paradise, 107 S. Ct. at 1073, quoting Wygant, 476 U.S. at 282-83, 106 S. Ct. at 1851 (plurality).
Thus, the court holds that there is no genuine issue of material fact that the City's affirmative action goals at issue here were narrowly tailored to their remedial purpose. Because this court finds that there can be no significant doubt both that the City's affirmative action goals were justified by a compelling governmental interest and also that the goals were narrowly tailored to serve that interest, summary judgment must be granted in favor of the defendants.
B. Plaintiffs' Section 1981 Claim
Apart from equal protection analysis, plaintiffs' Section 1981 claim is untenable for another reason. In Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), the Supreme Court recently addressed the issue of whether a promotion claim is actionable under Section 1981. The Court held:
The question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer's refusal to enter the new contract is actionable under § 1981. . . . Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981.
109 S. Ct. at 2377 (emphasis added). Patterson requires this court to grant summary judgment in defendants' favor on plaintiffs' Section 1981 claims for two reasons.
First, plaintiffs' first amended complaint, filed and further amended before Patterson was decided, contains neither allegations nor facts indicating that promotion to the ranks of Engineer or Captain would result in a "new and distinct" relationship between the plaintiffs and the CFD.
Plaintiffs have failed to amend their complaint to allege such facts. This is fatal to their Section 1981 claims. See Greggs v. Hillman Distributing Co., 719 F. Supp. 552, 555 (S.D.Tex. 1989).
Second, on summary judgment, plaintiffs -- who of course bear the burden of proof on their Section 1981 claim -- must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact in this case which requires trial. Plaintiffs have designated no facts whatsoever indicating that their promotions would have created a new and distinct relation with the CFD. Therefore, summary judgment must be entered against plaintiffs on the Section 1981 claims. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S. Ct. at 2553.
C. Qualified Immunity
Finally, regardless of this court's ruling on equal protection liability, Louis T. Galante and Jesse Hoskins are entitled to qualified immunity from suit in this case.
Under the doctrine of qualified immunity public officials "performing discretionary functions are protected against suits for damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have know." Doe v. Bobbitt, 881 F.2d 510, 511 (7th Cir. 1989). Commissioners Galante and Hoskins allegedly were involved with the decision to institute the affirmative action goals at issue as of the middle of 1987. (See Defendants' Exhibits E and F.) At that time (as now) the most recent Supreme Court decisions upheld affirmative action plans which were narrowly tailored to serve proper remedial purposes. See, e.g., Paradise, 107 S. Ct. at 1074 (1987).
As discussed above, when the City instituted its affirmative action goals: (1) the City was bound by the McGarr Order to Promote Black and Hispanic persons in sufficient numbers so as to increase substantially the minority composition in each of the promotional ranks of the Chicago Fire Department"; (2) the City had a collective bargaining agreement with the Union setting a goal of 45% minority representation throughout the CFD; and (3) there was a significant statistical disparity between the proportion of minority members in the Engineer and the Captain ranks of the CFD compared to the proportion in the ranks immediately below them.
Moreover, also as discussed above, the City affirmative action plan created the "goal" that 20% of promotions to Engineer and Captain be given to black candidates and 5% to Hispanic candidates. The goal was to be of limited duration. Moreover, no unqualified black or Hispanic candidates would be offered NRO promotions.
Given these facts a reasonable fire commissioner or personnel commissioner could have concluded that he could take race into consideration for a limited reorganization of the Engineer and Captain rank of the CFD. See Auriemma v. Rice, 895 F.2d 338, 343-44 (7th Cir. 1990); Cygnar, 865 F.2d at 844.
Because the pleadings, deposition testimony, answers to interrogatories, and affidavits show that there is no genuine issue as to any material fact in this case and that the defendants are entitled to a judgment as a matter of law, defendants' motion for summary judgment is GRANTED. This case is dismissed in its entirety.