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BARNHILL v. CITY OF CHICAGO

March 6, 2001

GORDON BARNHILL, STEVEN GLOMBICKI, CHARLES MCCORKLE, THOMAS O'CONNER, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED PLAINTIFFS, PLAINTIFFS,
v.
CITY OF CHICAGO, POLICE DEPARTMENT, A MUNICIPAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Rebecca R. Pallmeyer, U.S. District Judge

MEMORANDUM OPINION AND ORDER

In recent years, both minorities and non-minorities have challenged the allegedly discriminatory nature of the Chicago Police Department's ("CPD") promotion process. See Erwin v. City of Chicago, No. 90 C 950, 1998 WL 704295, at *6 (N.D.Ill. Sept. 30, 1998) ("A review of the history of Chicago Police Department promotional examinations indicates that changes in the exams and procedures are likely; as are continued legal challenges."). As a result, the City of Chicago finds itself wedged between a rock and a hard place — incessantly retooling its examination structure hoping to appease its officers as well as the state and federal courts.

The subject of the latest challenge is the 1998 examination for promotion to the rank of sergeant (the "1998 Sergeant Exam"). In late 1997, the CPD announced that the 1998 Sergeant Exam would consist of three parts: a Written Qualifying Test ("WQT"), a written Assessment Exercise, and a Merit Selection Process (the "Merit Component"). Any officer who achieved a score of at least 147 on the WQT was eligible to (1) take the Assessment Exercise (and, as a result of this score, be placed in rank order on the Assessment Eligible List) and (2) participate in the Merit Component. The Merit Component itself was a three-part process. First, exempt officers (senior-level executive staff who serve at the pleasure of the Superintendent of Police) nominated eligible patrol officers on the basis of specific job-related assessment dimensions. These nominees were then reviewed by the Academic Selection Board ("ASB"), a panel comprised of CPD deputy superintendents. The ASB then recommended certain of the nominees to Terry Hillard, the Superintendent of Police, who ultimately chose those promoted through this Merit Component.

According to the CPD's 1997 announcement, a maximum of 30% of the resulting promotions were to be based on the Merit Component and the remaining percentage were to be made in rank order from the Assessment Eligible List. In August 1998, the City promoted 251 patrol officers to sergeant as a result of this examination. of these 251, 178 were promoted in rank order from the Assessment Eligible List, but see infra note 8, and 73 were promoted as a result of the Merit Component. Plaintiffs Gordon Barnhill, Steven Glombicki, Charles McCorkle, and Thomas J. O'Connor, all Caucasian males, claim that the City of Chicago committed racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq., and the Equal Protection Clause of the Fourteenth Amendment, by including the Merit Component in the 1998 Sergeant Exam. Plaintiffs allege that the Merit Component was a mask for an illegal affirmative action program and, further, that, as applied, the Merit Component had a disparate impact on "non-minority males." Notably, Plaintiffs have admitted that they did not deserve promotions by virtue of the Merit Component, but nevertheless believe that they have been injured because they would have been promoted in August 1998 if all 251 promotees had been chosen in rank order from the Assessment Eligible List. Both parties now move for summary judgment. For the reasons set forth below, the City's motion is granted and Plaintiffs' motion is denied.

FACTUAL BACKGROUND*fn1

A. United States v. Chicago

The tortured history of challenges to the CPD's promotion processes stretches back as far as 1971. In 1976, Judge Prentice Marshall of the United States District Court for the Northern District of Illinois found that the 1971 Sergeant Exam discriminated against African-Americans, Hispanics, and women in violation of Title VII. See United States v. Chicago, 411 F. Supp. 218 (N.D.Ill. 1976). Judge Marshall consequently entered a judgment directing the City to:

[a]dopt and seek to achieve a goal of promoting blacks, Spanish-surnamed persons and females to the rank of sergeant so as to have and maintain a sergeant mix reasonably representative of the patrol force. . . . To ensure as quickly as practicable the attainment of this goal, 40% of the promotions to the rank of sergeant shall consist of black and Spanish-surnamed persons, subject to the availability of qualified applicants, until further order of this Court.

Chicago, 411 F. Supp. at 250-51. In 1981, the Seventh Circuit determined that a sufficient showing was made to justify lowering the court-imposed minority quota to 25%. See United States v. City of Chicago, 663 F.2d 1354 (7th Cir. 1981). Finally, in 1990, the Seventh Circuit vacated Judge Marshall's equitable decree altogether. United States v. Chicago, 897 F.2d 243, 244 (7th Cir. 1990) ("Bringing this case to conclusion with the existing parties will cause no injustice. If new events amount to discrimination, the courts remain open to fresh litigation to enforce the right of all to be treated without regard to race, sex, and national origin.").

B. The Blue Ribbon Panel

As a result of the United States v. Chicago litigation, the City assembled a Blue Ribbon Panel (the "Panel") in or around 1989 to review the City's hiring and promotion processes. (Defendant City of Chicago's Response to Plaintiffs' Rule 56.1 Statement of Uncontested Facts ("City's Response") at ¶ 7.) The City hoped that the Panel's recommendations would help stave off future litigation and public controversy and make the testing process as fair and complete as possible. (City's Response at ¶ 7.) James Holzhauer of the law firm Mayer, Brown & Platt served as Vice Chairman of the Panel. (City's Response at ¶ 4.) Holzhauer, who had represented the City in a wide variety of employment-related matters, coordinated all meetings, and attended the informal hearings where, for example, the Panel conferred with leaders of the Fraternal Order of Police, groups representing African-American, Hispanic, and female police officers, and leaders of the associations representing police sergeants and lieutenants. (Exhibit 3 (Final Panel Report) to Plaintiffs' Statement, at 2; City's Response at ¶ 4; Defendant City of Chicago's Additional Facts at ¶ 62.)

In late 1991 (the record does not indicate the exact date) the Panel issued the final version of its Blue Ribbon Panel on Police Testing, Hiring and Promotion: Report and Recommendations (the "Final Panel Report"). (Plaintiffs' Statement at ¶ 14.) During the discovery phase of this litigation, the City produced an earlier draft of this Panel Report (the "Draft Panel Report"). That earlier draft included a section titled "Recruiting," which announced: "The City is committed to affirmative action and to having a Police Department that is representative of all groups that make up the City of Chicago." (Plaintiffs' Statement at ¶ 10). The Draft Panel Report also included a section entitled "Promotion," which included seven paragraphs. Not one of these paragraphs discussed plans for an affirmative action program. (Exhibit 2 to Plaintiffs' Statement at 10-13.) In the Final Panel Report, the language in the Recruiting section was modified to read, "[t]he City is committed to having a Police Department that is broadly representative of the diverse groups that make up the City of Chicago." The Final Panel Report also included a Promotion section which again made no reference to affirmative action.

C. Majeske v. City of Chicago

Despite the Blue Ribbon Panel and its Final Panel Report, litigation over the CPD's promotion processes continued. For example, in 1989, the CPD administered a test to determine which patrol officers it would promote to the rank of detective. Majeske v. City of Chicago, 218 F.3d 816, 818 (7th Cir. 2000). The test consisted of two components — the first was a written job knowledge multiple-choice test and the second was an oral examination. Id. After reviewing the results of the written test, though, the CPD concluded that promoting in rank order based on the results would adversely impact African-American and Hispanic applicants. Id.

In its effort to address the adverse impact issue, the CPD devised the following selection method. Id. First, it divided all of the candidates into three groups — Caucasian, African-American and Hispanic — and then invited those that scored in the top 17% on the written test in each group (619 overall) to take the oral examination. Id. Then, it combined the written and oral scores for these 619 applicants and used these combined scores to create a promotion eligibility list. Id. at 819. In August 1990, the CPD promoted 64 officers from this list. Id. The top 42 people on the list were promoted in rank order, but the other 22 promotions were made out of rank order and were awarded to the 18 highest scoring African-American and 4 highest scoring Hispanic candidates. Id.

Second, in addition to these 64 promotions, the CPD decided to promote 26 patrol officers based solely on merit. Id. The CPD's process for choosing these merit promotees was similar to the 1998 Sergeant Exam's Merit Component that Plaintiffs challenge in this case. Individual exempt unit commanders were asked to submit names of the employees under their command whom they considered to be superior performers. Once a list of these candidates was compiled, the Superintendent himself selected 26 from that list by considering their performance, absenteeism, disciplinary records, and commendations. See Majeske v. City of Chicago, No. 89 C 7262, 1998 WL 312016, at *1 (N.D.Ill. June 4, 1998).

Later in 1990, the Fraternal Order of Police filed grievances on behalf of non-minority patrol officers who had not been promoted, claiming that the out-of-rank and merit promotions violated the collective bargaining agreement between the CPD and the FOP. On October 31, 1991, the arbitrator, Anthony Sinicropi, found that the out-of-rank detective promotions did violate the CBA, but the merit promotions did not. Id. at 819. Then, eighty-three Caucasian police officers who sought and did not receive promotions to detective filed an action in federal court against the City claiming that the out-of-rank promotions (but not the merit promotions) violated their equal protection rights under the Fourteenth Amendment. The City stipulated that race and national origin were factors in the promotions resulting from the 1989 detective test, but argued that the CPD's affirmative action plan was nevertheless constitutional. Id. at 819. A jury found in the City's favor and the Seventh Circuit affirmed the verdict. Id. at 825.

D. Brown v. City of Chicago

As soon as the City decided to drop the merit alternative, forty-four African-American and Hispanic members of the CPD filed a Title VII action and sought a preliminary injunction to prevent the CPD from making the rank order promotions. See Brown I, 917 F. Supp. at 586. The court denied the plaintiffs' preliminary injunction request, see id., but, in 1998, resolved the merits in the plaintiffs' favor. See Brown v. City of Chicago, 8 F. Supp.2d 1095 (N.D.Ill. 1998) ("Brown II"). In Brown II, the court acknowledged that "the [1994 Exam], including each of its three components [was] content valid*fn3 because it measure[d] a significant portion of the knowledge, skill and abilities of a Chicago police lieutenant," id. at 1110, but nevertheless held that the City had violated Title VII because it had refused to implement the merit promotions — an available, equally valid, less discriminatory method for promotion. The fact that the Illinois Appellate Court had enjoined the use of merit selection was irrelevant, the court stated, because by passing the Civil Rights Act of 1964, "Congress intended to supersede all provisions of State law which require or permit the performance of an act which can be determined to constitute an unlawful employment practice under the terms of Title VII of the Act or are inconsistent with any of its purposes."*fn4 Id. at 1112.

The plaintiffs then appealed the aspect of the Brown II decision that found the 1994 Lieutenant Exam to be content valid. The Seventh Circuit affirmed the decision of the district court. See Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir. 2000). In its decision, the court stated that:

The City did not appeal [the finding that the merit promotions were an equally valid, less discriminatory alternative], so we need not pass on the validity of the merit promotion method, but we note that the parties agree as to the value of the merit method despite the fact that it includes a subjective element which minorities often find objectionable.

Id. at 1099.

E. Adams v. City of Chicago

Whereas the CPD utilized a merit selection process for promotions to detective in or around 1990, and to lieutenant in or around 1994, it did not consider a merit selection process for promotions to sergeant until around 1997. This was a result of a challenge to its 1994 Sergeant Exam. The 1994 Sergeant Exam was comprised of three parts. Part I contained multiple-choice questions covering the law, department procedures, and other regulations. See Adams v. City of Chicago, 135 F.3d 1150, 1152 (7th Cir. 1998). Part II (also multiple-choice) tested the administrative functions performed by sergeants, including reviewing reports and determining crime patterns. Id. Candidates who performed well on Parts I and II were eligible to take Part III, an oral examination based on a written briefing. Id. Before administering the 1994 Sergeant Exam, the CPD announced that promotions would be based exclusively on the results of the test and made in rank order. Id.

Of the original 4,700 patrol officers who took the examination, 56.4% were Caucasian, 31.8% were African-American, and 10.8% were Hispanic. Id. After all three parts were graded, though, about 88% of those designated to be promoted to sergeant were Caucasian and 12% were minorities. Id. In August 1994, the CPD prepared to promote 114 officers to sergeant based on the 1994 Sergeant Exam; but only 6 of these officers were minority group members. (Exhibit 8 to Plaintiffs' Statement — February 17, 1995 Letter from James Holzhauer to members of the Blue Ribbon Panel.) As a result, approximately 280 minority patrol officers filed suit claiming violations of, inter alia, Title VII and the Fourteenth Amendment, and sought a preliminary injunction prohibiting the CPD from making rank order promotions during the pendency of the case. Id. at 1153. The court denied the preliminary injunction. Id. The plaintiffs then appealed, and, on April 23, 1996, during the pendency of the interlocutory appeal, the City initiated a Task Force to again review the CPD's promotion practices. Id. As described further below, see infra, Factual Background, Section F., the Task Force issued a report in January 1997 recommending that up to 30% of the CPD's promotions to sergeant be made on the basis of "merit." Id. The Seventh Circuit upheld the district court's denial of the preliminary injunction request, but stated:

At oral argument attorneys for both sides indicated that the City is indeed giving serious consideration to a merit promotion procedure recommended by the appointed Task Force. Any such resolution achieved in a forum ...

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