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BANOS v. CITY OF CHICAGO

March 25, 2004.

PAUL BANOS, et al., Plaintiffs
v.
CITY OF CHICAGO, Defendant



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. Page 2

  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 Title VII;
(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 Title VII;
(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 VII.
Consistent with their pleadings and discovery responses, plaintiffs repeatedly conceded the validity of the 1998 lieutenant examination in open court.*fn1

  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 Page 3 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 validation Page 4 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. Page 5

  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 Procedures, Page 6 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, ...


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