The opinion of the court was delivered by: HOLDERMAN
JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE
In this case white members of the Chicago Fire Department ("CFD") bring claims under 42 U.S.C. Sections 1981 and 1983 alleging that the CFD's promotional decisions subjected them to reverse discrimination in violation of the Equal Protection Clause. Plaintiffs Chicago Fire Fighters Union Local No. 2 and some of its white members, and defendants City of Chicago and some of its officers, both have moved for summary judgment.
Our Seventh Circuit Court of Appeals recently agreed with a fellow judge in this district that "no area of constitutional law has been more unsettled than that gathered under the rubric of 'affirmative action.'" Cygnar v. City of Chicago, 865 F.2d 827, 843 (7th Cir. 1989) quoting Cygnar v. City of Chicago, 652 F. Supp. 287, 297 (N.D.Ill. 1986) (Shadur, J.). This court has found the Supreme Court's affirmative action jurisprudence equally abstruse. Although rarely easy to apply, nonetheless, careful consideration of the Court's affirmative action principles compels this court to grant defendants' motion for summary judgment.
The uniformed, non-exempt fire suppression ranks of the CFD include, in ascending order of promotion, the following: Firefighter, Engineer, Lieutenant, Captain, and Battalion Chief. (Defendants' 12[l] Statement at paras. 4-5;
Strensland Aff. para. 5.)
Plaintiff Chicago Fire Fighters Union Local No. 2 ("Union") is the collective bargaining representative for certain uniformed personnel of the CFD. The individual plaintiffs are white members of the CFD who held the rank of Firefighter or Lieutenant. In their first amended complaint
plaintiffs allege that defendants, the City of Chicago ("City") and some of its officers,
discriminated against them on the basis of race by making certain non-rank-order ("NRO") promotions.
Plaintiffs make two claims. In Count I of the complaint the Firefighter plaintiffs allege that the defendants' policy of NRO promotions prevented them from being promoted to the next highest rank -- Fire Engineer. In Count II the Lieutenant plaintiffs aver that the defendants' conduct precluded them from being promoted to their next highest rank -- Fire Captain.
On January 19, 1985 the City, under the auspices of the CFD and the Department of Personnel, administered a two-part Fire Engineer's examination. 1,035 Firefighters interested in promotion to Engineer took the first part of the Engineer's examination -- a written test. The Firefighters passing the written test were then given a practical "hands-on" test, or "simulator" test. Based on the results of this simulator test defendants posted the Engineer Promotional List, a list which ranked each Firefighter in accordance with the score achieved on the simulator test.
In a similar fashion, in September of 1986 the City also administered a two-part promotional examination for Fire Captain. 543 Fire Lieutenants completed the written portion of the examination, and about 506 subsequently completed an oral portion. Again, based upon the results of these tests defendants posted a Captain Promotional List, a list which ranked the Lieutenants based upon their scores on the examination.
Plaintiffs object neither to the examinations they took nor to the promotional rosters derived therefrom. On the contrary, plaintiffs contend that both the Engineer and the Captain examinations were carefully scrutinized to assure their validity as a promotional device. What plaintiffs protest is defendants' decision to make NRO promotions based upon race.
The NRO promotions at issue occurred for promotion both to Fire Engineer and Fire Captain. In June of 1987 Jesse Hoskins, the City's Commissioner of Personnel, informed Louis Galante, CFD Commissioner, that the third set of promotions from the Engineer Promotional List "should be made on an affirmative action basis, with the goal that 20% of the persons promoted to Engineer would be Black and additional 5% of those promoted would be Hispanic." (Defendants' Exhibit E.) On August 6, 1987 defendants issued an order certifying 56 Firefighters for the rank of Engineer. Eight Firefighters waived or otherwise declined promotion to Engineer, leaving 48 Firefighters identified for promotion. Pursuant to Commissioner Hoskins' directive the last eight Firefighters identified in the promotion order, all of whom were black, were promoted out of rank order -- that is, were lower in rank on the Engineer Promotional List than the Firefighter plaintiffs.
Likewise, in July of 1987 Commissioner Hoskins informed CFD Commissioner Galante that promotions from the Captain Promotional List should be made with the goal of promoting 20% black and 5% Hispanic candidates. (Defendants' Exhibit F.) On October 1, 1987 defendants issued an order certifying 24 Lieutenants for the rank of Captain. The first 23 Lieutenants named to the rank of Captain were in rank order from the Captain Promotional List. The last Lieutenant, however, an Hispanic-American, was promoted out of rank order -- viz, was lower in rank on the Captain Promotional List than the two Lieutenant plaintiffs.
Plaintiffs brought this suit under 42 U.S.C. Sections 1981 and 1983, alleging that the NRO promotions violated the Equal Protection Clause.
Because the court considers this case on cross motions for summary judgment, neither party can prevail unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on these cross motions for summary judgment the court must believe the evidence of the nonmovant, drawing all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).
When confronted with a motion for summary judgment, a party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The party must do more than simply "show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (footnote omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id., 475 U.S. at 587, 106 S. Ct. at 1356.
A. Plaintiffs' Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment provides that "no State shall . . . deny to any person within its jurisdiction the equal protection of the laws." To determine whether the City's affirmative action policy at issue violates the Equal Protection Clause this court must subject it to "strict scrutiny." City of Richmond v. Croson, 488 U.S. 469, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854 (1989). To survive this heightened scrutiny the policy must be justified by a compelling governmental interest and must be narrowly tailored to serve that interest. Id.
1. Justification by a Compelling Governmental Interest
To survive the first prong of the strict scrutiny test the City's affirmative action policy must be justified by a compelling interest. Clearly, the City would have a compelling interest in remedying past (and present) racial discrimination in making promotional decisions at the CFD -- which is precisely the interest which defendants assert. Croson, 109 S. Ct. at 720; United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 1065, 94 L. Ed. 2d 203 (1987); Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 1853, 90 L. Ed. 2d 260 (1986) (O'Connor, J., concurring).
The Court has made clear that a "contemporaneous or antecedent finding of past discrimination by a court or other competent body is not a constitutional prerequisite to a public employer's voluntary agreement to an affirmative action program." Wygant, 476 U.S. at 189, 106 S. Ct. at 1855 (O'Connor, J., concurring) (emphasis added). However, the Court has insisted upon "some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination." Wygant, 476 U.S. at 274, 106 S. Ct. at 1847 (plurality).
In City of Richmond v. Croson, 488 U.S. 469, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854 (1989), the Court clarified the showing that defendants must make in order to justify remedial relief. The Court held that a district court must make a factual determination that a governmental body had a "strong basis in evidence for its conclusion that remedial action was necessary." Croson, 109 S. Ct. at 724, 730, quoting Wygant, 476 U.S. at 277, 106 S. Ct. at 1848 (plurality). Only then would the governmental entity have a compelling interest in favoring one race over another. Croson, 109 S. Ct. at 723.
Although the defendants in this case must present a strong basis for concluding that remedial action was appropriate, the ultimate burden nonetheless remains with the plaintiffs to demonstrate the unconstitutionality of the NRO promotions -- that the defendants' evidence failed to support an inference of prior discrimination or that the remedial relief chosen was not "narrowly tailored" to its purpose. Wygant, 476 U.S. at 277-78, 293, 106 S. Ct. at 1849, 1857.
In 1973 the United States Department of Justice brought suit against the City of Chicago alleging that the hiring and promotion practices of the CFD unlawfully discriminated against blacks and Hispanics. (Cole Aff. para. 5.) At that time less than 5% of the ...