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, ...