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October 23, 2002


The opinion of the court was delivered by: William T. Hart, United States District Judge.



This lawsuit involves promotions within the Chicago Police Department ("CPD") and plaintiffs' allegations that White police officers were discriminated against-during the process. The promotions at issue were based on a sergeant promotional examination administered from 1985 to 1988 (the "Examination")*fn1 Scoring of the Examination was adjusted based on race*fn2 so that each racial group would be represented in the top 500 candidates expected to be hired in approximately the same percentage as they were in the entire candidate pool (the "Score Adjustments"). Also, some Hispanics were promoted outside the rank order of the adjusted scores on the Examination (the "Out-of-Rank Promotions").*fn3 The promotions to the rank of sergeant based on the Examination occurred on five "Promotion Dates": December 16, 1988, July 16, 1990, November 16, 1990, February 8, 1991, and September 16, 1991. See generally Petit v. City of Chicago, 31 F. Supp.2d 604, 608-10 (N.D. Ill. 1998).*fn4

These issues of liability*fn8 were tried to the jury. The jury was to decide as to each Promotion Date, each Identified Group, and each type of Selection Preference, whether each compelling interest existed and, if so, whether the Selection Preference was narrowly tailored. See id. at 22, Verdict Form. As to most every issue, however, the jury was unable to reach a unanimous verdict and a mistrial was ultimately declared. The jury did unanimously agree and return a verdict as to the Discriminatory Effects Interest for the promotion of Hispanics on all five Promotion Dates. The jury found that interest had been proven to exist, but did not make a unanimous finding as to whether any of the Score Adjustments or Out-of-Rank Promotions of Hispanics were narrowly tailored to that interest.

At the close of the evidence, plaintiffs moved for judgment as a matter of law on the ground that a collective bargaining agreement between the CPD and FOP (the "CBA") (see Pl. Exh. 3, Def. Exh. 59) required that the CPD make promotions without regard to race. Tr. Vol. VIII 163-64 (Jan. 29, 2002). Defendant argued that the issue was waived because not previously raised during the litigation. Id. at 164-65. Plaintiffs' motion was denied. Id. at 165. At the same time, defendant moved for judgment as a matter of law based on each of its asserted compelling interests. Id. at 165-72. Ruling on defendant's motion was reserved. Id. at 172.

On February 6, 2002, a mistrial was declared and the jury discharged. The order declaring the mistrial and the filing of the verdict form were both entered on the docket on February 11, 2002. See Docket Entries 331, 333. On February 15, pursuant to Fed.R.Civ.P. 50(b), defendant moved for entry of judgment as a matter of law [335] and, on February 20, plaintiffs filed their motion for judgment as a matter of law [336]. Defendant thereafter moved to strike all aspects of plaintiffs' motion other than the argument based on the CBA, contending that the additional arguments were waived because not raised in the motion made at the close of evidence [339]. The following order was thereafter entered:

Defendant City of Chicago's motion to strike Part II of plaintiffs' motion for judgment as a matter of law is denied without prejudice. To the extent defendant successfully argues that plaintiffs have waived the opportunity for a Rule 50(b) motion, plaintiffs' motion for judgment as a matter of law will be treated as a Rule 56 motion for summary judgment. The parties will not be required to file any Local Rule 56.1 statements, but they must provide adequate citations to the record in support of their factual assertions.

Order dated Feb. 26, 2002 [340].

As was clarified in part at a subsequent hearing on defendant's motion for reconsideration, see March 13, 2002 Tr., the parties are entitled to a ruling on their Rule 50 motions for judgment as a matter of law based on the trial record. To the extent all claims can be finally resolved on defendant's motion, judgment will be entered to that effect and the case is over in the district court. To the extent plaintiffs' motion was to be granted as to all compelling interests, damages would remain to be resolved, but the issue of liability would be resolved in the district court. However, to the extent that no claims or only some of the claims can be resolved on the Rule 50 motions, the case would remain open in the district court and it would still be possible and appropriate to consider summary judgment motions. That is why the motions will be considered as summary judgment motions to the extent they raise issues not properly preserved for a Rule 50 motion or rely on evidence not presented at trial. Also, as was previously stated in court, even if the case can be resolved on one of the Rule 50 motions, the summary judgment issues will still be resolved so that there will be a complete record in the event any otherwise dispositive ruling is overturned or modified on appeal. Cf. Fed.R.Civ.P. 50(c)(1).


A. Rule 50 Standards

Rule 50(a)(2) of the Federal Rules of Civil procedure provides: "Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." If a Rule 50(a) motion made at the close of all the evidence is not granted, the movant may renew the motion within ten days after the entry of judgment. Fed. K. Civ. P. 50(b).*fn9 If no verdict was returned, the court may order a new trial or direct entry of judgment as a matter of law. Id. 50(b)(2). It is clear that a timely Rule 50(b) motion on issues that have been adequately preserved may and should be considered even though a mistrial has been declared. Evanston Hospital Corp. v. Astra Pharmaceutical Products, Inc., 1992 WL 220607 *1 (N.D. Ill. Sept. 3, 1992); Bostron v. Apfel, 104 F. Supp.2d 548, 551 (D. Md. 2000), aff'd by unpublished order, 2 Fed. Appx. 235 (4th Cir.), cert. denied, 122 S.Ct. 218 (2001); Stokes v. Children's Hospital, Inc., 805 F. Supp. 79, 80 (D.D.C. 1992), aff'd by unpublished order, 36 F.3d 127 (D.C. Cir. 1994); Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2537 at 162 (2d ed. 2002 Supp.). Also, to the extent the case cannot be resolved on the Rule 50(b) motions, it is appropriate to consider summary judgment. See Ross v. Hotel Employees & Restaurant Employees International Union, 266 F.3d 236, 243 (3d Cir. 2001), cert. denied, 122 S.Ct. 1172 (2002).

Under the plain language of Rule 50(b), a Rule 50(a) motion for judgment as a matter of law must be made at the close of the evidence in order to be able to bring a posttrial Rule 50(b) motion for judgment as a matter of law. Laborers' Pension Fund v. A&C Environmental, Inc., 301 F.3d 768, 775-76 (7th Cir. 2002); Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1364 (7th Cir. 1996). Rule 50(a)(2) also requires that the motion "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Thus, it is also the rule that issues that were not adequately preserved in a Rule 50(a) motion made at the close of evidence may not be included in a Rule 50(b) motion. A&C Environmental, 301 F.3d at 777-78; McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1555-56 (7th Cir. 1987); Rankin v. Evans, 133 F.3d 1425, 1431 (11th Cir.), cert. denied, 525 U.S. 823 (1998); Advisory Committee Notes to the 1991. Amendments to Rule 50(b). However, these waiver rules must be considered in light of Rule 50(b)'s purpose of requiring that a motion for judgment as a matter of law be made after the submission of all the evidence, but before the case is given to the jury, so as to afford the opposing party an opportunity to cure any defect in its case before the jury retires. A&C Environmental, 301 F.3d at 777. The rule should not be strictly enforced when its rationale collapses under the circumstances of a particular case. Id. The Seventh Circuit has held that a failure to expressly state all grounds or expressly state a sufficient argument when the motion is presented at the close of the evidence will not result in waiver if previously presented arguments (in an earlier Rule 50(a) motion, in trial briefs, in motions in limine, on summary judgment, or otherwise) have made the moving party's position clear for the court and opposing party. Id. at 777-78; Urso v. United States, 72 F.3d 59, 61 (7th Cir. 1995). Accord Rankin, 133 F.3d at 1432-33.

As to the merits of a Rule 50 motion for judgment as a matter of law, federal law provides the applicable standard. Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 343 (7th Cir. 1995) (quoting Mayer v. Gary Partners & Co., 29 F.3d 330, 335 (7th Cir. 1994)). The standard is whether the evidence presented, combined with all reasonable inferences permissibly drawn, is legally sufficient to support the verdict when viewed in the light most favorable to the nonmovant. Fed.R.Civ.P. 50; Mutual Service Casualty Insurance Co. v. Elizabeth State Bank, 265 F.3d 601, 612 (7th Cir. 2001); Mathur v. Board of Trustees of Southern Illinois University, 207 F.3d 938, 941 (7th Cir. 2000); Collins v. Kibort, 143 F.3d 331, 335 (7th Cir. 1998). In other words, the test is whether no rational jury could return a verdict for the nonmovant. Mathur, 207 F.3d at 941; Dadian v. Village of Wilmette, 269 F.3d 831, 837 (7th Cir. 2001); Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 630 (7th Cir. 1996). The court may not reweigh the evidence, resolve conflicts in the testimony against the nonmovant, or override the jury's determinations as to the credibility of witnesses. EEOC v. Board of Regents of University of Wisconsin System, 288 F.3d 296, 301 (7th Cir. 2002); Grassi v. Information Resources, Inc., 63 F.3d 596, 599 (7th Cir. 1995). The standard is essentially the same as that for a motion for summary judgment. Hall v. Gary Community School Corp., 298 F.3d 672, 675 (7th Cir. 2002); Millbrook v. IBP, Inc., 280 F.3d 1169, 1179 n. 2 (7th Cir. 2002); Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir. 1999).

B. Plaintiff s' Rule 50(b) Motion

At the close of evidence, the only contention expressly raised by plaintiffs in their Rule 50(a) motion was the contention that defendant could not have had a compelling interest in providing Selection Preferences because such Preferences were prohibited by the CBA. In their Rule 50(b) motion, plaintiffs also argue that (a) defendant made an insufficient showing of past discrimination against African-Americans and Hispanics; (b) defendant failed to connect anecdotal testimony about past discrimination to its statistical evidence; (c) the testimony of defendant's statistical expert is deficient because based on assumptions that were not shown to be true; (d) the Selection Preferences were not narrowly tailored to any Discriminatory Effects Interest that was shown; (e) the Selection Preferences were not narrowly tailored to the Adverse Impact Interest because they went beyond the number necessary to avoid the regulatory 80% rule and any potential adverse impact violation could have been avoided by validating the test as job-related; and (f) the Operational Needs Interest was not shown to exist nor was there evidence of how many additional sergeants were needed to satisfy any such interest (collectively, the "Additional Issues"). Defendant contends the Additional Issues are all waived because not included in plaintiffs' Rule 50(a) motion made at the close of the evidence.

1. Plaintiffs' Additional Issues

This case was pending for almost 12 years before it went to trial. Much of that time, the parties were occupied with discovery that was conducted in consolidated proceedings with other cases involving police promotions from the same time period. However, after the consolidated proceedings were completed, the parties had substantial time and opportunity to bring substantive motions and this court issued a number of written rulings. See Petit VII, 2001 WL 1143163 at *1 (summarizing proceedings through September 2001). The parties were provided with the opportunity to move for summary judgment on more than one occasion. See Petit II, 31 F. Supp.2d 604; Petit V, 2001 WL 629306. See also Petit VII, supra (plaintiffs' motion to reinstate that essentially sought reconsideration of prior summary judgment rulings). The parties also filed various substantive motions related to collateral estoppel and a number of motions in limine that raised substantive issues. Additionally, the parties had the opportunity to address substantive issues in the final pretrial order and regarding jury instructions. Although the parties had these many opportunities to raise issues, the parties' submissions were often unfocused, particularly submissions from plaintiffs. Despite these many opportunities to raise issues as well as the opportunity to raise issues at the time the Rule 50(a) motions were presented, plaintiffs had not previously raised most of the issues contained in their Rule 50(b) motion, and certainly had not raised the more fact-oriented issues that go to the evidence that was actually presented at trial.

The only issue on which plaintiffs moved for summary judgment was the issue of narrow tailoring related to the Discriminatory Effects Interest. See Petit V, 2001 WL 629306 at *7-12. That argument was focused on certain aspects of Bernard Siskin's expert report*fn10 and is different from the contentions plaintiffs attempt to raise in their Rule 50(b) motion. Also, no summary judgment issue was raised concerning a failure to provide sufficient anecdotal evidence of discrimination and a failure to prove narrow tailoring related to the Adverse Impact or Operational Needs Interests. Plaintiffs did assert on a number of occasions that the Adverse Impact and Operational Needs Interests could not constitute compelling interests, but those are purely legal questions that are distinct from the facts supporting the Interests. Plaintiffs do not assert the purely legal issues in their Rule 50(b) motion [336] nor did they make the argument during their formal objections to the jury instructions. See Tr. Vol. VIII 109-41 (Jan. 29, 2002).

In ¶ 8 of their Rule 50(b) motion [336], plaintiffs assert: "Without first allowing argument from plaintiffs' attorney, at the close of the evidence, before the jury got the case, the court announced its conclusion that the City had produced a strong basis in the evidence for a compelling governmental interest and a narrowly tailored plan, for all three of its alleged interests. The court made no findings to support this broad conclusion." Where a court precludes a party from making its Rule 50(b) presentation, it may be found that issues not expressly raised were not waived. See A&C Environmental, 301 F.3d at 776. See also Urso, 72 F.3d at 61. Plaintiffs misstate the record. During the parties' opportunity to formally place their jury instruction objections on the record, plaintiffs objected to the instruction regarding the burden of proof. The court stated that, on the legal issue of defendant meeting the burden of production for its defenses, it would be found that defendant satisfied its burden of production as to a compelling interest and, therefore, the jury was only being instructed as to plaintiffs' burden to prove a negative. Tr. Vol. VIII 124-27 (Jan. 29, 2002).*fn11 The court did not find that defendant had proved a strong basis, instead indicating only that defendant had met its burden of production. More importantly, the court expressly stated that plaintiffs would be provided with the opportunity to address these fact issues and the court would rule thereon if the issues were subsequently raised on a "directed verdict" motion. Id. at 126. When the time came for plaintiffs' presentation of their Rule 50(a) motion, they did not raise any issues regarding the evidence supporting defendant's asserted compelling interests or narrow tailoring; they only raised the CBA issue. The court was prepared to give serious consideration to an expected Rule 50(a) motion regarding all the compelling interests, though the decision may have been to reserve ruling as was done with defendant's Rule 50(a) motion.*fn12 Moreover, the prior indication that defendant had met its burden of production is different from the sufficiency of the evidence issue. Even though defendant met its burden of production and plaintiffs therefore continued to bear the burden of persuasion, evidence submitted by plaintiffs still could have been such that no rational juror could have done anything but find for plaintiffs. Contrary to what had been expected, this latter issue was never raised by plaintiffs nor ruled upon by the court; all the court did during the jury instruction conference was indicate it had found that defendant met its burden of production.

This is not a situation where the Additional Issues were preserved because clearly before the court even if not expressly raised in a Rule 50(a) motion. Plaintiffs have not preserved any issue for a Rule 50(b) motion other than the CBA issue. As previously stated, though, the other issues will be considered as summary judgment motions. This is largely to the same effect. Although summary judgment permits consideration of evidence other than that actually presented at the trial, neither side has presented much additional evidence.

2. The CBA Issue

The CBA in effect from February 7, 1990 through December 31, 1991,*fn13 provided in part:

Section 10.1 Equal Employment Opportunity

The Employer will continue to provide equal employment opportunity for all officers, and develop and apply equal employment practices.

Section 10.2 Non-Discrimination

The Employer shall not discriminate against officers, and employment-related decisions will be based on qualifications and predicted performance in a given position without regard to race, color, sex, religion, age (40-63), or national origin of the officer. . . . Officers shall not be transferred, assigned or reassigned for reasons prohibited by this Section 10.2.

Plaintiffs contend that, as a matter of law, there cannot possibly be a compelling interest for voluntary affirmative action when applying the Selection Preferences violated the CBA that defendant had with its employees.

Defendant contends this issue is waived because not included in the complaint nor the final pretrial order. Plaintiffs allege in their First Amended Complaint that defendant made race-conscious promotion decisions. See First Am. Compl. [45] ¶ 26. They did not have to allege facts showing that no compelling interest existed justifying the use of race-conscious decisions. And even if defendant had expressly denominated a compelling interest as an affirmative defense, which it did not (see Def. Am. Answer to First Am. Compl. [112]), the Federal Rules of Civil Procedure do not require that a plaintiff reply to affirmative defenses. See Fed.R.Civ.P. 7(a). It is true that plaintiffs did allege the existence of certain personnel ordinances and regulations of the City concerning employment examinations and equal opportunity (First Am. Compl. [45] ¶¶ 17-22), but such allegation were not essential to plaintiffs' causes of action. Plaintiffs did not waive the CBA issue by failing to include in their complaint allegations regarding the CBA.

Defendant's other contention is that plaintiffs waived the CBA issue by not including it in their final pretrial order.*fn14 Rule 16(e) of the Federal Rules of Civil Procedure provides that a final pretrial order "shall control the subsequent course of the action unless modified by a subsequent order." See also Gorlikowski v. Tolbert, 52 F.3d 1439, 1443 (7th Cir. 1995). Local Rule requires that, when ordered to do so by the court,*fn15 the parties must prepare a final pretrial order in compliance with the form set forth in the rules. See N.D. Ill. L.R. 16.1(a), Form 16.1.1. The form is to include an agreed statement or separate statements of contested issues of fact and law. Id. 16.1.1(2)(b). The final pretrial order also must include trial briefs which "are intended to provide full and complete disclosure of the parties' respective theories of the case. Accordingly, each trial brief shall include statements of . . . (c) the party's theory of liability or defense . . ., and (e) the party's theory of any anticipated motion for directed verdict. . . . Any theory of liability or defense that is not expressed in a party's trial brief will be deemed waived." Id. 16.1.1(9). "[T]he pretrial order is treated as superseding the pleadings and establishes the issues to be considered at trial." Gorlikowski, 52 F.3d at 1444 (quoting Erff v. MarkHon Industries, Inc., 781 F.2d 613, 617 (7th Cir. 1986)). Accord Nagy v. Riblet Products Corp., 79 F.3d 572, 575 (7th Cir. 1996). Evidence or theories not raised in the pretrial order are properly excluded at trial. Gorlikowski, 52 E.3d at 1444 & n. 3. This rule also applies to raising contentions in a Rule 50 motion. See Maul v. Constan, 928 F.2d 784, 786-87 (7th Cir. 1991); Morro v. City of Birmingham, 117 F.3d 508, 515-16 & n. 3 (11th Cir. 1997), cert. denied, 523 U.S. 1020 (1998). Cf. Nagy, 79 F.3d at 575 (motion for a new trial). The pretrial order can be modified at trial, but only if the "stringent standard" is satisfied that modification is necessary to "prevent manifest injustice." Fed. K. Civ. P. 16(e); Gorlikowski, 52 F.3d at 1444.

Here, plaintiffs submitted a trial brief and statements of contested issues of law and fact. None of those documents makes any mention of the CBA. The only reference to the CBA in the final pretrial order is plaintiffs' inclusion of the excerpt as a listed exhibit. The legal theory associated with the CBA, however, is not mentioned. Additionally, this issue had never been raised on summary judgment or otherwise during pretrial proceedings. Because plaintiffs did not include this issue in the final pretrial order, it was not properly preserved to be raised in a Rule 50 motion, either at the close of evidence or postverdict.

Although the CBA issue is waived for purposes of being raised in a Rule 50 motion, it is not necessarily waived for purposes of being raised on summary judgment. The pretrial order presently in place controls proceedings that occurred at trial and posttrial motions directed to that trial; it does not control subsequent proceedings following a mistrial or grant of a new trial. Johns Hopkins University v. CellPro, Inc., 152 F.3d 1342, 1357 (Fed. Cir. 1998). If defendant's Rule 50(b) motion is denied, plaintiffs would be free to raise on summary judgment any issues that have not been otherwise waived or dismissed in pretrial proceedings.

Even if the pretrial order continues to control after a mistrial, it would be appropriate to permit modification prior to a second trial. In determining whether it is appropriate to permit modification to avoid manifest injustice, the court must "weigh the possible hardships imposed on the respective parties by allowing or refusing to allow the order to be modified; the court must also balance the need for doing justice on the merits between the parties (in spite of the errors and oversights of their attorneys) against the need for maintaining orderly and efficient procedural arrangements." Gorlikowski, 52 F.3d at 1144 (quoting Matter of Delagrange, 820 F.2d 229, 232 (7th Cir. 1987)). Factors to consider include: "(1) the prejudice or surprise to the nonmoving party, (2) the ability of the party to cure the prejudice, (3) the extent of the disruption to the orderly and efficient trial of the case or other cases in the court, and (4) the bad faith and willfulness in failing to comply with the court's order." Ryan v. Illinois Department of Children & Family Services, 185 F.3d 751, 763 (7th Cir. 1999).

Defendant may have been surprised when the CBA issue was first raised during plaintiffs' Rule 50(a) motion. At this point in time, however, defendant would no longer be surprised by the issue and has had adequate opportunity to brief it. Moreover, there is no contention by defendant that it would have engaged in additional discovery had it known this issue would be presented by plaintiffs. Defendant suffers no undue prejudice by permitting the issue to be raised at this time. Permitting the issue to be raised after Rule 50(b) motions are resolved and before proceeding to a new trial does not interrupt an orderly and efficient retrial of the case. There is no indication that plaintiffs intentionally delayed raising this issue to gain an advantage. To the extent the issue is meritorious and dispositive of liability, it would have been to plaintiffs' advantage to raise the issue previously and avoid some litigation costs. Additionally, to the extent the issue is meritorious, it would serve justice to permit plaintiffs to now raise this issue. Therefore, even if the final pretrial order still limits the issues that are before the court, that order would, after resolution of defendant's Rule 50(b) motion, be modified to permit plaintiffs to raise the CBA issue on summary judgment or at a second trial. This issue will be addressed below in § III (C)(1).

C. Defendant's Rule 50(b) Motion

Defendant timely moves for judgment as a matter of law on its Discriminatory Effects Interest. Its Rule 50(b) motion and supporting brief raises this Interest only; it does not raise an issue as to the other two claimed compelling interests. See Def. Motion for Entry of Judgment as a Matter of Law [335] ¶ 6; Def. Memo. of Law in Support of Motion for Judgment as a Matter of Law [346]. After the court ruled that plaintiffs' Rule 50(b) motion could, in the alternative, be treated as a summary judgment motion, defendant responded to plaintiffs' motion and additionally requested that summary judgment be granted in its favor based on all three of its claimed compelling interests. See Def. Response to Pl. Motion for Judgment as a Matter of Law [350] at 1-2 & n. 2.

Summary judgment will be addressed in § III, infra. Unlike the Rule 50(b) motion, summary judgment permits consideration of evidence in addition to that presented at trial. Neither side, however, has relied on much additional evidence. The general facts and general legal principles set forth in the following two subsections apply to both sides' summary judgment motions as well.

1. General Facts

The facts taken as true for purposes of ruling on summary judgment in 1998, see Petit II, 31 F. Supp.2d at 608-10, were generally indisputably proven at trial as well.*fn16 No rational jury could find other than the following facts.

Beginning in 1970, various lawsuits were filed challenging the procedures for promoting Chicago police officers as being discriminatory. The 1973 and 1978-79 sergeant examinations were found to be discriminatory and affirmative relief was granted to benefit African-Americans, Hispanics, and women, including the imposition of some quotas. In light of this past history, the City developed the Examination that is the subject of the present litigation. Claims regarding the Examination were raised in United States v. City of Chicago, No. 73 C 2080 (N.D. Ill.) ("City of Chicago"). In City of Chicago, the City moved to impose a quota that would make adjustments favoring Hispanics and women, but that motion was denied. See Petit I, 766 F. Supp. at 609. A number of the plaintiffs in the present case intervened in City of Chicago. The intervenors' claims were subsequently dismissed, some with prejudice and some without prejudice. It was previously held that this dismissal has a preclusive effect on all the individual plaintiffs in the present case. Petit I, 766 F. Supp. at 610-13. Claims dismissed with prejudice in City of Chicago were not to be relitigated in the case sub judice. Plaintiffs were not precluded from challenging the racial standardization of raw scores; they were precluded from challenging both a scoring method that resulted in scores bunched in a narrow range and the elimination of certain questions from use in the final scoring.

Adjustments were also made to standardize the grading of the different raters who scored the short answer and oral examination parts.*fn17 This aspect of the standardization was not based on the rater's race. As to the short answer examination, one standardization was performed to adjust for raters and a separate standardization was performed to adjust for the race of the applicant. For the oral examination, though, a single standardization was performed taking into account both the rater and the race of the applicant. For this litigation, this standardization was recalculated, in separate steps for the oral examination rater standardization and the standardization based on the applicant's race. Thus, assuming no other adjustments would have been made, it can be determined what the rank order of applicants would have been had no racial standardization been performed.*fn18

Absent racial standardization, the top 500 candidates (which is the approximate number of officers the City expected to promote) would have been composed of 416 Whites (83.2%), 66 African-Americans (13.2%), and 18 Hispanics (3.6%). By comparison, the racial composition of those who completed the application process was 66.6% White, 27.2% African-American, and 5.6% Hispanic. Stated a different way, absent racial standardization, 18.3% of White applicants were in the top 500, 7.1% of African-American applicants, and 9.4% of Hispanic applicants. If only the top 458 (the number actually promoted) are considered, 16.8% of the White applicants would have been promoted, 6.4% of the African-American applicants, and 7.8% of the Hispanic applicants.

The highest possible score was 100. On this 100-point scale, a difference of 2 or 3 points could make a substantial difference in the rank order. For example, using the racially unstandardized scores, the person ranked 630 had an 81.90 score and the person ranked 430 had an 83.59 score. The lowest-scoring Hispanic applicant among the racially standardized top 500 had a racially usstandardized score of 80.95 (rank 774) and a racially standardized score of 83.43 (rank 417). The lowest-scoring African-American applicant among the racially standardized top 500 had a racially un standardized score of 80.70 (rank 854) and a racially standardized score of 82.82 (rank 497). During this litigation, plaintiffs contended that the differences are made to appear artificially small by arbitrarily selecting a 100-point scale and by the standard deviation used for the rater standardization. As plaintiffs have pointed out, the raw score differences may be substantially larger (at least viewed on an absolute scale). Plaintiffs, however, have been precluded (based on prior litigation) from directly challenging the scaling and standard deviation methodology the defendant chose to employ. Additionally, defendant presented undisputed evidence at trial supporting that the test had a standard measure of error of more than three points. That indicates that differences in scores of a few points are not significant. Moreover, plaintiffs presented no evidence from which a rational jury could find that differences of a few points on the test would be a significant predictor of job performance.

The City chose to standardize scores by race. In doing this, the City assumed that, by group, Whites, African-Americans, and Hispanics all would have scored equally on a non-biased test. Therefore, the scores for African-Americans and Hispanics were adjusted so that each group would be represented in the top 500 candidates in essentially the same proportion as their representation among applicants. Following racial standardization, the top 500 applicants consisted of 332 Whites (66.4%), 138 African-Americans (27.6%), and 30 Hispanics (6.0%). Stated another way, after racial standardization, 14.60% (332/2274) of White applicants were ranked in the top 500, 14.82% (138/931) of African-American applicants, and 15.63% (30/192) of Hispanic applicants. The racially unstandardized scores were 82.98 for the 332nd White applicant, 80.70 for the 138th African-American applicant, and 80.95 for the 30th Hispanic applicant.

Between December 1988 and September 1991, 458 patrol officers were promoted to sergeant. 402 of the promotions were based on the rank order of the 1988 eligibility list derived from the racially standardized 1985-88 examination. The other 56 promotions were Out-of-Rank Promotions. Of the 458 officers promoted, 298 (65.07%) were White, 119 (25.98%) were African-American, and 41 (8.95%) were Hispanic. The 1988 eligibility list was canceled on October 9, 1992. A new sergeant promotional examination was administered in 1993.

2. General Legal Principles

Because this case concerns promotional decisions of a municipal entity that were influenced by race, strict scrutiny applies to defendant's use of the Selection Preferences. Majeske, 218 F.3d at 819. To survive strict scrutiny, the Selection Preferences must have promoted a compelling interest. Reynolds, 296 F.3d at 526; Majeske, 218 F.3d at 820. There must be a strong basis in the evidence supporting the existence of a compelling interest. Builders Association of Greater Chicago v. County of Cook, 256 F.3d 642, 645 (7th Cir. 2001); Clark v. Putnam County, 293 F.3d 1261, 1273 (11th Cir. 2002); Engineering Contractors Association of South Fla. Inc. v. Metropolitan Dade County, 122 F.3d 895, 906-07 (11th Cir. 1997), cert. denied, 523 U.S. 1004 (1998); Contractors Association of Eastern Pa., Inc. v. City of Philadelphia, 91 F.3d 586, 597 (3d Cir. 1996), cert. denied, 519 U.S. 1113 (1997); Concrete Works of Colorado, Inc. v. City & County of Denver, 36 F.3d 1513, 1521-22 (10th Cir. 1994), cert. denied, 514 U.S. 1004 (1995).

To survive strict scrutiny, the Selection Preferences must also have been narrowly tailored. Reynolds, 296 F.3d at 526; Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 657 (7th Cir.), cert. denied, 122 S.Ct. 465 (2001); Majeske, 218 F.2d at 820. "To determine whether an affirmative action plan is narrowly tailored, the test we use is whether the racially preferenced measure is `a plausible lower-bound estimate of a shortfall in minority representation' that is caused by past discrimination." Majeske, 218 F.3d at 823 (quoting McNamara v. City of Chicago, 138 F.3d 1219, 1224 (7th Cir.), cert. denied, 525 U.S. 981 (1998)). Aside from the numbers, general factors to consider include "the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties." United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion) (cited in Majeske, 218 F.3d at 824).

Here, the asserted compelling interests are not limited to remedying past discrimination. Defendant also raises the Operational Need Interest and the Adverse Impact Interest. While the basic measuring standard is still "a plausible lower-bound estimate of a shortfall in minority representation," it must be measured by the particular compelling interest being considered. The above-quoted passage from Majeske, 218 F.3d at 823, concerned a discriminatory effects interest and therefore was measured by the minority shortfall caused by past discrimination. For the Operational Need Interest, the measuring standard involves the shortfall of minority sergeants necessary to serve the CPD's operational needs and for the Adverse Impact Interest the measuring standard involves the shortfall of minority promotions necessary to avoid an adverse impact violation. Thus, for purposes of narrow tailoring, each particular Interest is measured against a different goal. As the discussions below will indicate, this means the estimated lower-bound number of minority promotions needed to serve a particular Interest must be particularized to that Interest, thereby producing a different minimum estimated quantity of promotions that would serve each particular Interest. Because narrow tailoring for each Interest is measured against a different estimated quantity, it would not be inconsistent to hold that (a) the undisputed facts only support that narrow tailoring is satisfied for one Interest; (b) the undisputed facts only support that narrow tailoring cannot be satisfied as to a second Interest; and (c) a genuine factual dispute remains as to whether narrow tailoring is satisfied for the third Interest.

Defendant had the burden of producing evidence of a compelling interest and narrow tailoring. With the burden of production met, the burden of persuasion remained with plaintiffs to show a lack of a compelling interest and/or a failure to narrowly tailor. Majeske, 218 F.3d at 820; Dade County, 122 F.3d at 917; Philadelphia, 91 F.3d at 957.

Consistent with these legal principles, the jury was instructed as to plaintiffs' burdens regarding compelling interests and narrow tailoring. See Jury Instr. [330] 22-26, 34-36. The burden of production of defendant was a legal question for the court and therefore no instruction was given as to defendant's burden. See Petit X, 2002 WL 171978 at *1 n. 2. Initially, this court ruled that post-implementation or post-enactment evidence could not be the support for the compelling interest showing. "As to each particular compelling interest, the City must show that, during the pertinent time period, it had a strong basis for finding the particular compelling interest to be present. It cannot rely on a post-1991 factual basis as constituting the necessary strong basis in the evidence." Petit IX, 2002 WL 10481 at *4, On the other hand, it was held that post-implementation evidence was admissible to show narrow tailoring. Id. On reconsideration prior to the beginning of the trial, see Order dated Jan. 14, 2002 [319], it was held that post-implementation evidence was also admissible as evidence of a compelling interest and that it was only necessary to have some evidence of a compelling interest at the time the Selection Preference was being implemented. See Jury Instr. [330] 23, 25-26; Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1166 & n. 11 (10th Cir. 2000), cert. dismissed, 534 U.S. 103 (2001); Dade County, 122 F.3d at 911; Contractors Association of Eastern Pa., Inc. v. City of Philadelphia, 6 F.3d 990, 1003-06 (3d Cir. 1993), cert. denied, 519 U.S. 1113 (1997); Coral Construction Co. v. King County, 941 F.2d 910, 920-21 (9th Cir. 1991), cert. denied, 502 U.S. 1033 (1992). See, e.g., Reynolds, 296 F.3d at 529-30 (referring to expert testimony in support of compelling interest that would not have existed at the time the promotions at issue were implemented); Majeske, 218 F.3d at 820-21 (same). But see In re City of Memphis, 293 F.3d 345, 350-51 (6th Cir. 2002); Rothe Development Corp. v. United States Department of Defense, 262 F.3d 1306, 1324-28 (Fed. Cir. 2001).

The jury was instructed as follows and the law stated therein will be applied in today's ruling.

In order to find that, on a particular Promotion Date, a compelling interest existed to apply a particular Selection Preference for one of the Identified Groups, each of the following propositions must be found:
(1) The particular compelling interest motivated defendant to apply a Selection Preference(s) for the particular Identified Group;
(2) At the time, some evidence supported that the particular compelling interest existed as to that Identified Group; and
(3) A strong basis supports that the particular compelling interest existed as to that Identified Group.
In making this determination, you must keep in mind that the burden of proof is on plaintiffs. Therefore, you must find that a compelling interest existed as to a particular Promotion Date and Identified Group unless plaintiffs prove by a preponderance of the evidence that one or more of the above propositions is not true.
As used in these instructions, "some evidence" means specific evidence known and considered by defendant (through its agents and employees) on or before the Promotion Date and which provided support for the existence of the compelling interest.
As used in these instructions, a "strong basis" means sufficient evidence upon which reasonable persons, making decisions about serious and important matters, would rely to infer that a particular fact is likely true.
A strong basis does not require proof that the underlying facts actually are true, only such evidence from which a reasonable person could infer the particular facts are likely true.
In determining whether a strong basis existed, you are to consider all the evidence that is before you regardless of whether it was actually known by or considered by defendant as of the Promotion Date.
In making the narrowly tailored determination you must keep in mind that the burden is on plaintiffs to prove by a preponderance of the evidence that a particular Selection Preference was not narrowly tailored to the particular compelling interest, Promotion Date, and Identified Group.
"Narrowly tailored" means that the Selection Preference was implemented in a manner that resulted in the promotion of a lower-bound estimate of the number of Identified Group members necessary to be promoted in order to serve the compelling interest which you found existed. In other words, that it discriminates against Whites as little as possible consistent with effective remediation.
Aside from the number of Identified Group members promoted through the application of the Selection Preference, general factors you may consider include the necessity for the relief and the efficacy of possible alternatives; the flexibility and duration of the relief; the relationship of the numerical goals to the ...

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