United States District Court, N.D. Illinois
March 29, 2004.
PAUL BANGS, et al, Plaintiffs
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.
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
docs 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
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,
1 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
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, T 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, 1 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 fade 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,
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, expertise, and experience of those involved in the
test development . . . the preliminary use of peer review and pilot
testing of each of its three parts." Bryant, 200 F.3d
at 1099, Accordingly, the Court concluded that the City had "made a
substantial showing of job relatedness." Id.*fn2
In Allen, two sub-classes of minority Chicago police officers
claimed that sergeant promotions in the 1998 examination process had an
unlawful disparate impact on minorities in violation of Title VII. The
district court granted the City's motion for summary judgment.
Allen, 2002 U.S. Dist. LEXIS 18973, The only issue in that case
was whether a higher percentage of promotions based on merit selection
than the 30 percent the City was using was substantially equally valid
and less discriminatory. The plaintiffs appealed, but the Seventh Circuit
affirmed. First, the Court found that the plaintiffs failed to produce
"any evidence that the officers' alternative of increasing merit
promotions would lead to a workforce substantially equally qualified."
Alien, 351 F.3d at 314. Second, the Court found that the
plaintiffs failed to establish that increased merit promotions would have
been less discriminatory. The plaintiffs had argued that previous
merit-based promotions did not have a disparate impact on minorities, but
the Court rejected that argument finding that "[p]ast success at lower
levels of merit-based promotions merely predicts, but docs not establish,
success at higher levels of merit-based promotions. We cannot require the
City to increase its merit-based promotions on mere speculation."
Id. at 315.
Plaintiffs here claim that Allen requires a stricter standard
for an employer to establish that a selection device is job-related than
the one set forth in Bryant, but they are incorrect. The
Allen plaintiffs agreed prior to the City's summary judgment
motion that the 1998 sergeant test was job-related and consistent with
business necessity. Id, at 312. "As a result, questions as to
the job relatedness and business necessity of the promotional process
components were not raised [at the district court] and [were] waived on
appeal." Id. at 312 n. 8. The Court plainly did not reach the
issue of whether the examination was job-related and, thus, there was no
sharp shift in the law. Rather, the Court affirmed summary judgment
because plaintiffs made no attempt to produce evidence that any
alternative mechanism was equally valid to or less discriminatory than
the process used by the City, Allen, 351 F.3d at 314.
Plaintiffs also claim that Petit v. City of Chicago requires a
stricter standard for an employer to establish that a selection device is
job-related than the one set forth in Bryant, However,
Petit was not a disparate impact case. In Petit, the
plaintiffs claimed that affirmative action promotions made based on the
results of the 1985-1988 police sergeant examination deprived them of
their equal protection rights, 352 F.3d at 1112. The Seventh Circuit
affirmed the district court's grant of summary judgment to the City,
finding that the challenged affirmative action promotions served a
compelling government interest and were narrowly tailored. Id.
at 1115, 1117. But Petit is totally unrelated to the disparate
impact standards in Bryant, Allen and this case. In the end, the
issue of job relatedness under Title VII was not presented to or
addressed by the courts in Allen or Petit. Neither
addresses, much less overturns, Bryant. Therefore, there is no
justification for allowing a complete change of theory at this point.
Moreover, the City would be severely prejudiced if plaintiffs were
permitted to withdraw their admissions at this point. Given the
abandonment of test validation claims, the City prepared its defense
tailored to the narrow issue of whether making more than 30 percent of
lieutenant promotions in 1998 using a merit-based system was
substantially equally valid and less discriminatory than the system in
place. Discovery has now been completed for nearly 20 months. See
Tidwell, 2001 U.S. Dist. LEXIS 18491, *3 (whether discovery has
closed is a factor to consider in determining prejudice). In addition,
the discovery that occurred was tailored to the only issue present in the
suit. Should plaintiffs' motion be granted, discovery will need to be
reopened (and essentially begin anew) for additional rounds of written,
oral, and expert discovery. Such discovery would be substantial, not
minimal. Furthermore, the City has already moved for summary judgment
based on plaintiffs' admissions, and courts have found prejudice where
the party has moved for summary judgment based on admissions prior to the
time a motion to withdraw those admissions had been filed,
Narowetz, 99 B.R. at 860-61, Finally, this case has been pending
for almost six years, due in large part to plaintiffs' numerous requests
for extensions of discovery deadlines and stays of all proceedings while
the Bryant and Allen cases worked their way through the
district and appellate courts. The City is entitled to a prompt
resolution of this lawsuit from this point onward, but reinstating an
issue that plaintiffs have already withdrawn will only serve to delay
resolution of a police promotional process from the last century.
Id.; O'Neill, 166 F.R.D, at 21-22. It is difficult to
see how public interests might be served by hearing a challenge to a
lieutenant's examination and assessment exercise first made more than
five years after they were administered.
City's Motion for Summary Judgment
Plaintiffs recognize that any challenge to the job relatedness of the
written test in this case would fail under the legal standard applied by
the Seventh Circuit in Bryant. Accordingly, plaintiffs limited
their claims to the "equally valid, less discriminatory alternative" of
42 U.S.C. § 2000e-2(k)ii. In Allen, however, the Seventh
Circuit rejected the argument that increasing the percentage of merit
promotions was an equally valid, less discriminatory alternative. The
Alien plaintiffs advanced the same arguments that are at issue
here, and Allen is fatal to any "equally valid, less
discriminatory alternative" argument in this case. Therefore, having
denied the plaintiffs' motion to withdraw their abandonment of test
validation claims, I grant summary judgment in favor of the City.
For the reasons above, Plaintiffs' Motion to Waive Local Rule 56(b)(3)
is GRANTED, their Motion for Leave to Withdraw Abandonment of Test
Validation Claims is DENIED, and the City's Motion for Summary Judgment