The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
This is a Title VII disparate impact challenge to the 1998 Chicago
Police Lieutenant Examination and promotion process. The examination was
designed to promote sergeants to the rank of lieutenant, and consisted of
three parts: a pass-fail Written Qualifying Test ("WQT"), a rank order
Assessment Exercise ("AE") for at least 70 percent of all promotions, and
a merit selection process ("MSP") for up to 30 percent of all promotions.
Plaintiffs' complaint was filed on November 27, 1998, and amended in
August 2000. After a group of minority police sergeants challenging the
City's 1994 lieutenant promotion exhausted their appeals in Bryant v.
City of Chicago, 200 F.3d 1092 (7th Cir. 2000), plaintiffs conceded
that the 1998 lieutenant examination was content valid, job-related and
consistent with business necessity. Accordingly, they amended their
complaint in November 2000 to allege that merit promotions were less
discriminatory than and equally valid to rank order promotions, and
asserted that the City violated Title VII by choosing to limit merit
promotions to thirty percent of all promotions.
In January 2001, plaintiffs served their Revised Response to Second Set
of Interrogatories and Admissions Based on Conditional Amended Complaint.
In that Response, plaintiffs admitted that:
(1) The WQT of the 1998 lieutenant examination is
job-related, consistent with business necessity,
and content valid;
(2) The passing score on the WQT of the 1998
lieutenant examination conforms to and does not
violate any professional standards of industrial
psychology, conforms to and does not violate the
Uniform Guidelines on Employee Selection
Procedures, and does not violate or contribute to
any violation of Title VII;
(3) The Written Component of the AE of the 1998
lieutenant examination is job-related, consistent
with business necessity, and content valid and
does not violate or contribute to a violation of
(4) The City's use of the results of the Written
Component of the AE of the 1998 lieutenant
examination does not violate or contribute to
a violation of Title VII;
(5) The Oral Component of the AE of the 1998
lieutenant examination is content valid and does
not violate or contribute to any violation of
(6) The City's use of the results of the Oral
Component of the AE of the 1998 lieutenant
examination does not violate or contribute to
a violation of Title VII; and
(7) The City's use of the results of the AE component
of the 1998 lieutenant examination does not
violate or contribute to any violation of Title
Consistent with their pleadings and discovery responses, plaintiffs
repeatedly conceded the validity of the 1998 lieutenant examination in
On February 22, 2001, I informed plaintiffs that they would need the
testimony of an expert to satisfy their evidentiary burdens on their
Title VII disparate impact claim. Despite this
instruction, plaintiffs failed to designate an expert or submit an
expert report before the close of discovery in August 2002.
Based on plaintiffs' concessions in written discovery, their decision
not to present an expert in support of their claim, and their failure to
present any evidence regarding the existence of another available method
for promotion to lieutenant that was equally valid to and less
discriminatory than the 1998 promotional process, the City moved for
summary judgment on November 1, 2002. By that date, the City already had
successfully moved for summary judgment in Allen v. City of Chicago, No.
98 C 7673, 2002 U.S. Dist. LEXIS 18973 (N.D. Ill. Sept. 30, 2002), a
nearly identical case involving a challenge by minority police officers
to the City's 1998 sergeant promotion process. Plaintiffs here asked me
to stay summary judgment proceedings pending disposition of the appeal in
the Allen matter because "it is likely that the entry of judgment in
favor of defendant will be required in this case" if the Seventh Circuit
affirmed the Allen decision on any grounds. I therefore stayed briefing
on the summary judgment motion.
On December 9, 2003, the Seventh Circuit affirmed the district court's
decision to grant summary judgment in Allen. The Court found that the
plaintiffs failed to specify any alternative to the 1998 sergeant
promotion process, to prove that the alternative was equally valid, or to
prove that the alternative was less discriminatory. Allen v. City of
Chicago, 351 F.3d 306, 316-17 (7th Cir. 2003). Plaintiffs here have since
conceded that this decision is fatal to any "equally valid, less
discriminatory alternative" in this case.
This case has been pending before me for nearly six years, but
Plaintiffs now want the opportunity to challenge, for the first time, the
validity and job-relatedness of the 1998 promotion examination.
Accordingly, plaintiffs move to withdraw their abandonment of test
claims. They argue that they should be able to do so because of a
purported conflict between Allen, Bryant, and Petit v. City of Chicago,
352 F.3d 1111 (7th Cir. 2003). The City argues that contrary to
plaintiffs' contention, there has been no shift in the law and that
withdrawal is therefore unjustified. In addition, the City argues that
abandonment at this late date is prejudicial and should not be allowed.
In the event that their motion to withdraw their abandonment of test
validation claims is denied, plaintiffs essentially concede that summary
judgment in favor of the City is appropriate. Accordingly, this motion is
addressed at the end of this decision.
Plaintiffs' Motion to Withdraw Abandonment of Test Validation Claims
Under Federal Rule of Civil Procedure 36(b), any matter admitted is
"conclusively established." The purpose of this rule is to narrow the
issues that are contested and that need to be resolved at trial and to
eliminate those issues that are not in dispute. United States v.
Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987). If parties "cannot depend
on the binding effect of admissions obtained under [Rule 36], they cannot
safely avoid the time, effort and expense of preparing proof of the
matters of which they have secured admission and the purpose of the rule
is frustrated." Tidwell v. Daley, No. 00 C 1646, 2001 U.S. Dist. LEXIS
18491, *3 (N.D. Ill. Nov. 8, 2001). Likewise, courts rely on those
admissions to ensure cases are resolved efficiently and to control their
dockets. In re Narowetz Mech. Contractors, Inc., 99 B.R. 850, 860-61
(Bankr. N.D. Ill. 1989), aff'd, 898 F.2d 1306 (7th Cir. 1990); O'Neill v.
Medad, 166 F.R.D. 19, 22 (E.D. Mich. 1996). Consequently, I should be
reluctant in permitting withdrawal of an admission. Id. at 22.
I may permit plaintiffs to withdraw or amend an admission made pursuant
to Rule 36 only if: (1) the presentation of the merits will be furthered
by allowing withdrawal or amendment; and (2) the party that obtained the
admission will not be prejudiced. Narowetz, 99 B.R. at 860. Thus, I have
discretion whether to permit or deny withdrawal of admissions. Id. at
860-61. Even if I find that both the merits and prejudice factors favor
the party seeking withdrawal, I may refuse to allow withdrawal of an
admission. Id. at 860. Here, I exercise my discretion to prohibit
withdrawal of plaintiffs' abandonment of the test validation claims
because contrary to plaintiffs' contention, there has been no shift in
the law justifying such withdrawal and because allowing withdrawal at
this point would prejudice the city.
First, there has been no change to the standard for determining whether
an employer's selection device is job-related and consistent with
business necessity. In order to establish a prima facie case of Title VII
disparate impact, plaintiffs must show that a specific employment
practice, while neutral on its face, has had a significant discriminatory
impact. Price v. City of Chicago, 251 F.3d 656, 659 (7th Cir. 2001);
Bryant, 200 F.3d at 1094. If plaintiffs make this required initial
showing, the burden shifts to defendant to prove "the challenged practice
is job-related for the position in question and consistent with business
necessity." 42 U.S.C. § 2000e-2(k)(1)(A); Price, 251 F.3d at 659; Bryant,
200 F.3d at 1094. After this showing is made, plaintiffs can prevail only
if they prove that an equally valid, less discriminatory method is
available and that defendant refuses to adopt that alternative. Id.; see
42 U.S.C. § 2000e-2(k)(1)(A)(ii).
Employers may establish that their selection processes are job-related
with "criterion-related validity studies, content validity studies or
construct validity studies." Uniform Guidelines on Employee Selection
29 C.F.R. § 1607.5 (2003); see also Adams v. City of Chicago, No. 94 C
5727, 1996 U.S. Dist. LEXIS 3567, *41 (N.D. (Ill. Mar. 25, 1996) (1994
Chicago police sergeant examination determined to be job-related through
a content validity study). No one validation method is preferred. Billish
v. City of Chicago, 989 F.2d 890, 896 (7th Cir. 1993); Gillespie v.
Wisconsin, 771 F.2d 1035, 1040-41 (7th Cir. 1985). One may choose a
validation method based upon the inference that is sought. Id. at 1040.
In Bryant, the Seventh Circuit addressed the issue of whether the 1994
lieutenant examination was job-related. Consistent with Gillespie, the
Court held that an employer may use any one of three validation methods:
(1) content, (2) construct, or (3) criterion related, to establish that a
test is job-related. Bryant, 200 F.3d at 1094. The Bryant plaintiffs
contended that the City did not meet its burden of proving that the
examination was content valid, but the Court rejected that contention.
Id. A test is content valid so long as it "measure[s] a significant
portion of the knowledge, skills, and abilities necessary for" the job.
Id. at 1099. The 1994 lieutenant examination met that standard because it
was prepared by a professional testing developer and was based on a
detailed job analysis, interviews with incumbent lieutenants,
observations of lieutenants at work, reviews of applicable police
documents, reports and orders, and a master job description which
measured the importance and frequency of a lieutenant's tasks and
responsibilities. Id. In affirming the content validity of the exam, the
Seventh Circuit also noted the "knowledge, ...