DECISION ON THE MERITS
The hiring and promotional practices of the Chicago Fire Department have spawned more than two decades of civil rights litigation. In this case, nine white captains and lieutenants challenge the affirmative action promotion of sixteen black and nine Hispanic lieutenants to the position of captain. The plaintiffs claim their equal protection rights under the United States Constitution were violated by the challenged promotions.
A six-day bench trial was held. After considering the testimony, exhibits and arguments of counsel, the court enters the following findings of fact and conclusions of law, as required by Rule 52(a) of the Federal Rules of Civil Procedure.
As a preliminary matter, the court adopts and incorporates the parties' stipulation of uncontested facts, as well as the now uncontested portions of the city's statement of contested facts in the joint final pretrial order.
THE 1987 CAPTAIN'S EXAMINATION
The following background facts are undisputed. The City of Chicago's Department of Personnel develops and administers promotional examinations for the Chicago Fire Department. Plaintiffs challenge the out of rank order promotions of twenty-five blacks and Hispanics on May 1, 1991 and April 1, 1992 from the results of fire captain examination # 68737. Plaintiffs are white males who passed the fire captain examination.
Only lieutenants in the Chicago Fire Department were eligible to take the captain's examination. The examination consisted of three parts: a written multiple choice test, an oral board interview and credit for seniority. The city's Department of Personnel used job content as a source of knowledge and skill to be tested. To define job content for the 1987 captain's examination, the Department of Personnel conducted a job analysis. The process used is detailed in "The Report on the Validation of the Fire Captain Examination of 1986." It is undisputed that the job analysis procedures used by the city in the construction of the 1987 captain's examination were professionally recognized and complied with the Equal Employment Opportunity Commission Guidelines on Employee Selection Procedures.
After the job analysis was conducted, the tasks, knowledge, skills and abilities identified, and the source materials examined, a joint committee from the Chicago Fire Department and the Department of Personnel prepared the test.
Training sessions were conducted at city colleges prior to the administration of the examination. The Chicago Fire Department provided each applicant with source materials to study. These materials included fire department rules and regulations, citations to general orders, operating procedures, and bulletins.
The oral component of the examination was designed to measure and evaluate knowledge, skills and abilities that are important to the position of fire captain. The oral examination questions were also developed by a joint committee of Chicago Fire Department and Department of Personnel staff. The nine oral board raters who graded the oral examinations were commanders in the Chicago Fire Department; each candidate was evaluated by two of these commanders.
A total of 577 lieutenants applied to take the 1987 captain's examination: 496 were white (86%), sixty-three (10.9%) were black, and eighteen (3.1%) were Hispanic. A total of 543 lieutenants actually took the written component of the examination: 463 (85.3%) were white, sixty-three (11.6%) were black, and seventeen (3.1%) were Hispanic. Only 506 lieutenants then proceeded to take the oral component of the examination: 431 (85.2%) were white, fifty-eight (11.5%) were black, and seventeen (3.4%) were Hispanic.
The results of the 1987 captain's examination were weighted 65% on the written component, 25% on the oral component and 10% on seniority. The passing score was 70; 341 of the candidates passed the examination.
A promotional eligibility list of the 341 lieutenants who passed the examination ranked the candidates in the order of their test results. Between October 16, 1987 and April 1, 1992, 161 lieutenants from the promotional eligibility list were promoted to captain: 121 were white, thirty-one were black, and nine were Hispanic. Of these 161 promotions, twenty-five were made on a non-rank order basis. Of the twenty-five non-rank promotions, sixteen were to black lieutenants and nine were to Hispanic lieutenants. Eligible candidates ranked 106, 115, 132, 162 and 165 waived promotion or were withdrawn for reasons unrelated to this case. It is undisputed that if promotions from the 1987 eligibility list had been made in strict rank order, all candidates ranked up to and including rank 146 would have been promoted.
Plaintiffs declined to stipulate that twelve promotions were made in 1992 to comply with the city's "wrap-around" agreement with the United States Department of Justice pursuant to a settlement agreement in another civil rights case. This group also included three additional minority out of rank promotions. However, the undisputed evidence established that promotions were given to all non-minority lieutenants who were passed over because of out of rank order affirmative action promotions. See, e.g., Def.Ex. 8, 9. Plaintiffs ranked as follows on the promotional eligibility list: James A. McNamara 152; John J. Sullivan 153; Thomas R. Miller 154; Charles W. Lux 157; William T. King 159; Charles E. Dineen 166; Richard A. Graf 136; Henry A. Scavone 138; and Paul B. Sobczak 139. Plaintiffs Graf, Scavone and Sobczak were each promoted to the rank of captain before the list expired, pursuant to the "wrap-around" agreement. The remaining plaintiffs were not promoted from the eligibility list, which expired shortly after April 1, 1992. Id.
The city belatedly challenges the standing of plaintiffs McNamara, Sullivan, Miller, Lux, King and Dineen, all of whom ranked lower than 146 on the promotional eligibility list.
Because these plaintiffs would not have been promoted even if strict rank order had been followed, the city argues that they have failed to show any injury from the non-rank affirmative action promotions.
It is plaintiffs' burden to establish all elements of their claim under 28 U.S.C. § 1983 by a preponderance of the evidence. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277-78, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986). This includes the necessity of showing that plaintiffs have actually suffered a particularized and specific injury as a result of the city's conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). Plaintiffs have not done so. Rather, they respond that simply because there were a total of 161 promotions from the eligibility list and they ranked numerically higher than 161, they should have been promoted. However, plaintiffs ignore the undisputed fact that if strict rank order had been followed, no candidate ranked lower than 146 would have been promoted. In fact, all non-minority candidates passed over due to out of rank affirmative action appointments were in fact promoted under the "wrap-around" agreement (including the three remaining plaintiffs: Graf, Scavone and Sobczak). Accordingly, plaintiffs McNamara, Sullivan, Miller, Lux, King and Dineen were not denied promotions because of the out of rank affirmative action promotions, and lack standing in this case. Thus, the only question here is whether the delay in promoting Graf, Scavone and Sobczak constitutes a violation of the Equal Protection Clause.
CONSTITUTIONALITY OF AFFIRMATIVE ACTION
It is a fundamental principle that the Equal Protection Clause of the United States Constitution prohibits municipalities from discriminating on the basis of race or ethnicity. Plaintiffs contend that the twenty-five out of rank affirmative action promotions discriminated against them based upon the fact that plaintiffs are white.
To pass constitutional muster, race-based affirmative action must be strictly scrutinized to determine whether it serves a compelling governmental interest and whether it is narrowly tailored to further that governmental interest. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 132 L. Ed. 2d 158, 115 S. Ct. 2097, 2116-17 (1995). Racial and ethnic distinctions are inherently suspect and therefore require the most exacting judicial examination. Regents of Univ. of California v. Bakke, 438 U.S. 265, 291, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978). However, municipalities are not constitutionally barred from taking race-based affirmative action when it is necessary to remedy the lingering effects of discrimination against minority groups. Adarand, 115 S. Ct. at 2117. As Justice O'Connor wrote in Adarand,
Finally, we wish to dispel the notion that strict scrutiny is "strict in theory, but fatal in fact." Fullilove, supra, 448 U.S. 448, 519, 100 S. Ct. 2758, 2795, 65 L. Ed. 2d 902 (Marshall, J., concurring in judgment). The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it. As recently as 1987, for example, every Justice of this Court agreed that the Alabama Department of Public Safety's "pervasive, systematic, and obstinate discriminatory conduct" justified a narrowly tailored race-based remedy. See United States v. Paradise, 480 U.S. 149, 167, 107 S. Ct. 1053, 1064, 94 L. Ed. 2d 203 (plurality opinion of BRENNAN, J.) id., at 190, 107 S. Ct. at 1076 (STEVENS, J., concurring in judgment); id., at 196, 107 S. Ct. at 1079-1080 (O'CONNOR, J., dissenting). When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the "narrow tailoring" test this Court has set out in previous cases.
COMPELLING GOVERNMENTAL INTEREST
A compelling governmental interest justifying affirmative action may be shown by the use of statistical evidence establishing discrimination plus a history of entry-level and promotional discrimination. Erwin v. Daley, 92 F.3d 521, 527 (7th Cir. 1996) cert. denied, 136 L. Ed. 2d 845, 117 S. Ct. 958 (1997). Stuart v. Roache, 951 F.2d 446, 448-49, 455 (1st Cir. 1991); Vogel v. City of Cincinnati, 959 F.2d 594, 596-97, 601 (6th Cir. 1992)(statistical evidence alone sufficient to show compelling governmental interest). The statistical and historic evidence presented by the city establishes that the Chicago Fire Department has openly and intentionally discriminated against blacks and Hispanics until at least 1979; decades of discrimination have caused a significant lingering overrepresentation of whites and a significant underrepresentation of blacks and Hispanics, particularly in the upper ranks, when the promotions were made from the 1987 captain's examination.
The Department of Personnel predicated its decision to make a limited number of out of rank affirmative action promotions on three independent grounds. Def.Ex. 6. First, the city was under a continuing obligation to comply with a 1980 consent decree entered by former Judge McGarr of this Court in a desegregation case brought by the United States Department of Justice. The decree required the city to pursue a goal of promoting blacks and Hispanics to substantially increase minorities at each promotional rank; each rank was to become more representative of the rank from which promotions were made. In July 1987, only 3% of the captains were black or Hispanic, while 13.5% of the lieutenants and 26% of the firefighters/engineers were black or Hispanic. The city's Corporation Counsel was of the opinion that under these circumstances, adherence to strict rank order promotions would violate Judge McGarr's decree. Id. at 1.
Second, under an existing collective bargaining agreement, the city was required to follow promotion policies designed to achieve a level of representation at each rank as close as reasonably possible to 45% black and Hispanic, as quickly as possible. Id. at 1-2.
Third, wholly apart from Judge McGarr's decree and the collective bargaining agreement, Commissioner of Personnel Jesse E. Hoskins concluded that the city's commitment to equal opportunity required adoption of reasonable affirmative action measures to remedy the effects of past discrimination. In his letter to Fire Commissioner Louis Galante explaining the city's decision, Commissioner Hoskins observed:
Although we have been working in recent years to overcome the effects of past discrimination, those effects are still clearly present. Based on 1980 census workforce availability figures, one would expect Blacks and Hispanics to comprise approximately 35% and 10% respectively, of each rank in the promotional sequence. The actual utilization figures demonstrate a sever under-utilization.
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