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May 16, 1991

BEVERLY DIXON, et al., Plaintiffs,
JEREMY D. MARGOLIS, Director of the Department of State Police, et al., Defendants

The opinion of the court was delivered by: HART


 This case is a class action in which it is alleged that defendants discriminated against blacks in promotions within the Illinois State Police ("ISP"). Plaintiffs are black troopers, special agents, sergeants, and special agent sergeants employed by ISP. Four categories of promotions are involved in this case: (a) trooper to sergeant; (b) sergeant to master sergeant; (c) special agent to special agent sergeant; and (d) special agent sergeant to special agent master sergeant. These promotions are all to supervisory positions. Troopers, sergeants, and master sergeants work in ISP's Division of State Troopers ("DST"). Special agents, special agent sergeants, and special agent master sergeants work in ISP's Division of Criminal Investigation ("DCI"). Defendants are Jeremy Margolis, former Director of ISP; William O'Sullivan, Deputy Director in charge of DST; Ronald Grimming, Deputy Director in charge of DCI; Gene Marlin, Deputy Director in charge of the Division of Administration; Ernest Neuman, Deputy Director in charge of the Division of Training; David Williams, Deputy Director in charge of the Division of Internal Investigations; Lawrence Scheufele, Deputy Director in charge of the Division of Forensic Services and Identification; and Harry Orr, John Rednour, Fred Inbau, David Schippers, and Richard Mitchell, members of the State Police Merit Board (the "Merit Board"). *fn1" The defendants are sued in both their individual and official capacities. *fn2" Presently pending is defendants' motion for summary judgment.

 This suit is brought as a violation of the equal protection clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. No claim is made under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiffs seek both injunctive and compensatory relief. The Eleventh Amendment limits the monetary claims to those against defendants in their individual capacities only. Santiago v. Lane, 894 F.2d 218, 220 n. 3 (7th Cir. 1990). Since this claim is under § 1983, plaintiffs are required to show discriminatory intent. Riordan v. Kempiners, 831 F.2d 690, 695-96 (7th Cir. 1987); David K. v. Lane, 839 F.2d 1265, 1271 (7th Cir. 1988). This case does not involve a Title VII claim in which disparate impact without discriminatory intent can constitute a cause of action. See Riordan, 831 F.2d at 696; Gilty v. Village of Oak Park, 919 F.2d 1247, 1254 (7th Cir. 1990); Allen v. Seidman, 881 F.2d 375 (7th Cir. 1989).

 Surprisingly, the primary focus of the parties' arguments are on the question of whether there is sufficient proof of a disparate impact as defined by regulations applicable to Title VII. Although not fully expounded, plaintiff's argument would seem to be that an inference of discriminatory intent can be drawn from evidence of a disparate impact, defendants' knowledge of that disparity, and other factors. See generally Washington v. Davis, 426 U.S. 229, 241-42, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) (discriminatory impact alone does not show discriminatory intent, but it is a relevant factor to be considered along with the totality of relevant facts); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-68, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1976) (same). See also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339-40 & n. 20, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977) (statistical evidence, particularly evidence of a substantial disparity, is an important factor to consider, but is not irrefutable and its usefulness depends on all the surrounding facts and circumstances). In a class action such as the present case, "plaintiffs' prima facie case will thus usually consist of statistical evidence demonstrating disparities in the application of employment actions as to minorities . . ., buttressed by evidence of general policies or specific instances of discrimination." Coates v. Johnson & Johnson, 756 F.2d 524, 532 (7th Cir. 1985). Accord EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 308 (7th Cir. 1988).

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Id. at 473. The nonmovant, however, must make a showing sufficient to establish an essential element for which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In such instances, the movant need not provide affidavits or deposition testimony showing the nonexistence of these essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). In this case, the parties are largely in agreement as to the underlying facts. The parties, though, disagree as to what reasonable inferences can be drawn from these facts. To a large degree, the parties' disagreement is represented by the varying conclusions each party's expert draws from the available statistics and other information. The first issue to resolve is plaintiffs' challenge to defendants' expert.

 Pursuant to Fed. R. Civ. P. 37(d), plaintiffs move to bar defendants' expert, Frank Landy, on the ground that he relied on data that was not provided to plaintiffs. Plaintiffs' motion was initially presented on November 30, 1990, the date the parties pretrial order was filed. Plaintiffs contended that the failure to provide all the data was inconsistent with prior discovery requests. Plaintiffs do not make any representation that they complied with Local Rule 12(k). *fn3" Defendants responded to the motion on December 14. They conceded that they failed to provide certain information to plaintiffs that Landy had in his possession, but represented that it was an oversight that was corrected as soon as plaintiffs pointed it out. Defendants stated that other discrepancies in the data are based on Landy developing further data from the same basic documents that were given to plaintiffs. On April 5, 1991, plaintiffs filed a brief in support of their motion, contending there were still some missing documents and that they incurred certain additional expenses due to their expert having to duplicate some of his prior work. Plaintiffs still seek to bar defendants' expert. Defendants responded again, making the same representations as were in their initial response and further representing that all documents that they had have been provided to defendants.

 The representations of defendants' counsel are accepted as true. It is found that all documents have now been provided and that the initial failure to provide all documents was inadvertent. Plaintiffs fail to show that they would suffer any additional prejudice if Landy were permitted to testify. Therefore, the only proper sanction would be reimbursement for the additional charges of plaintiffs' expert that were incurred because the new documents had to be examined and some prior conclusions reconsidered. Defendants contend it was not a reasonable expense to have plaintiffs' expert recheck his data, but this precise suggestion was contained in defendants' initial response to the motion. That expense will be reimbursed. Plaintiffs are entitled to receive sanctions in the amount of $ 1,435.00.

 Plaintiffs also seek their fees and costs for pursuing this motion. Plaintiffs, however, never sought to informally resolve this matter with defendants. Defendants' responses indicate that such an approach may have been successful. Also, plaintiffs did not succeed at having the expert barred. Furthermore, other than documenting the additional expenses, the April 5 filing was largely unnecessary and did not produce any additional success. Each party shall bear its own fees, costs, and expenses in pursuing and opposing this motion.

 This case involves four categories of promotions. Since ISP keeps promotion lists in effect for 18 months, the case also involves three promotion lists for each category. The "1985 List" was in effect from December 1, 1985 to June 1, 1987; the "1987 List" from June 1, 1987 to December 1, 1988; and the "1988 List" from December 1, 1988 to June 1, 1990. Subsequent to June 1, 1990, ISP used a new promotional test and procedure that is not being challenged. Throughout the 1985-to-1990 period covered by this litigation, the same procedures were used.

 Rankings on each promotion list were determined by applying three factors. An applicant's score on a written examination was 50% of the total score. A performance evaluation known as BARS, Behavior Anchored Rating Scale, made up 45% of the total score. The other 5% of the total score was based on seniority. The Merit Board ranked applicants for each of 23 DST Districts and for each of 4 DCI Areas. Applicants were only considered for the District or Area in which they were already employed. The top 65% of each list was certified for promotion by the Merit Board. The top ten persons on each list were found to be equally qualified and eligible for promotion. Each time an opening occurred, one of these ten persons was chosen and the next person on the certified list would be added to the list of ten eligible candidates.

 The Merit Board has exclusive responsibility for creating, administering, and evaluating the written examinations. The Merit Board contracted with McCann Associates, a private consulting firm, to create the written examinations. The written examinations consisted entirely of multiple choice questions. Employees of ISP administered the examinations, but McCann graded and scored them. ISP was exclusively responsible for designing and administering BARS. Once the scores were determined, ISP would forward the BARS scores to the Merit Board.

 It is uncontested that ISP has an affirmative action program for new employees under which it aims to hire 50% white males and 50% minorities or females. *fn4" This program apparently was implemented following a lawsuit filed in 1975 and a subsequent settlement with the EEOC that mooted that lawsuit. See Washington v. Walker, 529 F.2d 1062, 1064 (7th Cir. 1976); Washington v. Walker, 734 F.2d 1237 (7th Cir. 1984). This program is for hiring new officers, not for the promotions that are the subject of the present lawsuit. Under the affirmative action hiring program, separate lists are kept for white males, "black males and other racial minorities," and females. Each list has a cutoff based on a written entrance examination and physical. Persons below the cutoff will not be hired. The cutoff score for black candidates is lower than for white candidates. *fn5"

 Plaintiffs contend that the written examinations and the process of selecting from the ten highest candidates is the source of discrimination. They do not contend the BARS or the 5% weight accorded seniority is a source of discrimination. Defendants' expert concludes that the statistical evidence shows no adverse impact, whereas plaintiffs' expert reaches a contrary conclusion. On defendants' motion for summary judgment, this dispute must be resolved in favor of plaintiffs unless the opinion of plaintiffs' expert cannot possibly be accepted by a reasonable trier of fact because ...

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