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Lewis v. City of Chicago

March 20, 2007

ARTHUR L. LEWIS, JR., ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

On March 22, 2005, following a bench trial, this court entered a judgment of liability against defendant, City of Chicago ("the City"), having found that the manner in which the City hired firefighters based on the 1995 written Firefighters Examination discriminated against African-Americans. Lewis v. City of Chicago, No. 98 C 5596, 2005 WL 693618, at *1 (N.D. Ill. March 22, 2005). The court joined for remedial purposes Chicago Firefighters Union Local #2 ("the Union") and The Firemen's Annuity and Benefit Fund of Chicago as non-aligned parties for the limited purpose of granting relief. The plaintiffs, the City, and the Union have presented live witnesses, videotaped testimony, and briefs on the subject of remedies. This opinion is intended to resolve most, if not all, of the remaining disputes concerning the subject of remedies.

The plaintiff class is composed of approximately 6,000 African-Americans who applied for entry-level firefighter jobs with the City and scored from 65 to 88 (inclusive) on the 1995 firefighter written examination. The parties are in agreement that but for the hiring practices found by the court to be discriminatory, 132.4 additional African- Americans would have been hired by the Chicago Fire Department ("CFD"). In order to remedy such unlawful discrimination, 132 class members shall be hired ("the shortfall group"). These 132 positions will be offered by lot to members of the plaintiff class. The court is aware of no substantial disagreement between the parties concerning the manner in which these 132 persons shall be identified. In the Order which follows, the court resolves the parties' modest disagreements as to the identification, hiring and training of the shortfall group, and resolves the more contentious disagreements over the subject of monetary remedies.

I. SKIP-TRACING

Plaintiffs have requested that the court order the City to hire a skip tracing service to update class members' address information before offers to advance to the next steps of the hiring process are mailed. The City responds that such an order will cause it substantial unnecessary (albeit unspecified) expense. Moreover, according to the City, persons who took and passed the 1995 entrance examinations were informed that they were obligated to keep the City apprised of their current address.

Given that test-takers were told to keep the City updated as to their current address, it is reasonable to assume that persons still interested in the firefighter job did so. The court therefore concludes that hiring a skip tracer as a requirement of this order is premature. If large numbers of mailed notices cannot be delivered, hiring a skip tracer may be necessary. At this point, the parties should figure out some way to determine the number of undeliverable mailings and to inform the court if the number of undeliverable mailings becomes significant.

The court rejects the City's contention that plaintiffs "waived" this proposal. Proposals to avoid likely problems are useful and will not be deemed "waived" because suggested late.

II. TIME REQUIREMENT FOR PRE-EMPLOYMENT SCREENING OF THE SHORTFALL GROUP

Plaintiffs have proposed a timetable for the hiring of the shortfall group which sets a 120 day deadline for pre-employment screening of the shortfall group. The City maintains that four months is insufficient, and a minimum of 200 days is necessary. No one knows at this point how difficult and time-consuming this process will be. The court will allow 180 days, basically six months, for this pre-screening to take place. The City shall use its best efforts to complete this process more expeditiously if possible. The parties should propose a method by which the court can monitor the progress of pre-employment screening.

III. RANDOM SELECTION OF MEMBERS OF THE SHORTFALL GROUP; REQUIREMENT OF IN-PERSON RETURN OF CANDIDATE INTEREST CARDS

The court has been given no reason to believe that the City's current random selection process conducted by its usual outside contractor is inadequate for the selection of the class members who will undergo screening. Accordingly, it finds no reason to disturb the City's normal procedure. Nor does the court find any reason to disturb the City's usual practice of mandating the return of "Candidate Interest Cards" in person. Since it is possible, however, that some members of the shortfall group no longer live in the Chicago area but would return if offered a position as firefighter, the City should be willing to waive this requirement for good cause shown (as is too often the case, the parties have not informed the court of why their difference on this point matters to them or to anyone else; that the concern is over people who have moved out of the Chicago area is a guess).

IV. TIME LIMIT FOR ENTRANCE TO ACADEMY OF MEMBERS OF SHORTFALL GROUP

Plaintiffs ask the court to order that all 132 members of the shortfall group enter the CFD Academy ("the Academy") within twelve months of the entry of the Injunctive Order. The City seeks twenty-four months, arguing that there are operational difficulties with having more than sixty candidates in the Academy at any one time. The City is also obligated by its union contract to include 10% paramedic crossovers in each Academy class. The court agrees with the City that it is in the best position to exercise modest discretion to determine class sizes, and requires that all class members hired pursuant to this order enter the Academy within twenty-four months. The court intends and expects that the shortfall class will be promptly trained and promptly integrated into the ranks of firefighters; it does not want its intention and expectation dashed because the City has been forced to provide Academy training on a basis which it believes is faster than appropriate.

V. TIME-IN-GRADE REQUIREMENT

Plaintiffs seek a reduction to thirty months from the collective bargaining agreement's fifty-four month "time-in-grade" requirement for promotion to the rank of engineer or lieutenant after taking a promotion examination. Section 9.3B of the collective bargaining agreement between the City and the Union provides for this fifty-four month time-in-grade requirement, and it provides that no employee may be promoted to engineer or lieutenant who has not completed fifty-four months in his/her prior classification. The parties' presentation of this issue is characterized by much heat and little light. Each party charges the others with failing to offer evidence in support of its position. The plaintiffs argue, without evidentiary foundation, that the time-in-grade requirement serves no important (safety-related or other) function and the City and the Union argue the opposite. Apparently recognizing that giving the plaintiffs immediate promotions would be ...


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