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March 18, 1997

CITY OF CHICAGO, a municipal corporation, Defendant.

The opinion of the court was delivered by: CONLON

 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 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.

 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. *fn1" Because these plaintiffs would not have been promoted even if strict rank order had been followed, the city argues ...

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