218 F.3d 816 (7th Cir. 2000), 99-1411, Majeske et al v City of Chicago

Docket Nº:99-1411 & 99-3639
Citation:218 F.3d 816
Party Name:Carol MAJESKE, et al., Plaintiffs-Appellants, v. City of Chicago, Defendant-Appellee.
Case Date:July 10, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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218 F.3d 816 (7th Cir. 2000)

Carol MAJESKE, et al., Plaintiffs-Appellants,


City of Chicago, Defendant-Appellee.

Nos. 99-1411 & 99-3639

In the United States Court of Appeals, For the Seventh Circuit

July 10, 2000

Argued April 21, 2000

Rehearing and Rehearing En Banc

Denied Sept. 1, 2000.[*]

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 C 7262--George W. Lindberg, Judge.

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[Copyrighted Material Omitted]

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Before Bauer, Kanne, and Evans, Circuit Judges.

Bauer, Circuit Judge.

The plaintiffs in this case are 83 white police officers who work for the Chicago Police Department ("CPD") and sought, but did not receive, promotions to the position of detective. Plaintiffs sued the City of Chicago for reverse discrimination claiming that the CPD's affirmative action plan violated their rights because it resulted in the promotion of African-Americans and Hispanics instead of them. The case went to trial before a jury which made factual findings by answering 56 special interrogatories. After reviewing the jury's findings of fact, the district court entered judgment in the City's favor and found the affirmative action plan constitutional. Plaintiffs challenge this judgment, and in a separate appeal consolidated with this one, ask us to reverse the district court's order requiring plaintiffs to pay the City's costs. We affirm the district court in both cases.

I. Background

The facts of this case date back to 1989 when the CPD administered a test to determine which Chicago police patrol officers would be promoted to the position of detective. The 1989 detective test had two components-- the first was a written job knowledge multiple choice test and the second an oral examination. The CPD used the written test to whittle down the number of patrol officers that it allowed to take the oral exam. A total of 3,392 applicants took the written test, but a maximum of 650 individuals were selected to take the oral exam. This number would produce more than enough candidates to fill the expected number of vacant detective positions. The CPD also limited the number of people allowed to take the oral exam due to space limitations at the testing facility and concerns about maintaining the secrecy of the test questions.

After reviewing the results of the written exam, the CPD concluded that advancing applicants based solely on ranking in the written test would significantly reduce the number of African- American and Hispanic applicants eligible for promotion to detective. Believing that this would expose it to liability for discriminating against blacks and Hispanics, the CPD developed a plan to increase the number of minorities promoted to detective. The CPD divided all of the candidates into three groups--white, African-American, and Hispanic. The CPD then invited the individuals that scored in the top 17% on the written test from each group to take the oral exam. This approach resulted in different cut-off scores for members of each group. The cut-off score for whites was 82, while Hispanic applicants advanced to the oral exam if they scored 79 and African- American candidates advanced if they scored a 73 or higher. Using this approach, the CPD allowed 619 applicants to take the oral examination.

On June 24, 1989, the CPD administered the oral component of the detective test to the 619 candidates and determined final

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scores by combining the written and oral scores and weighting the two scores equally. The Department used these final scores to create a list of applicants that the CPD determined were eligible for promotion to detective ("the eligibility list"). The eligibility list ranked the individuals based on their final composite score.

More than a year after administering the oral test and creating the eligibility list, the CPD promoted 64 officers to detective in August 1990. The top 42 people on the eligibility list were promoted to detective in rank order from the list, but the other 22 promotions were made out of rank order and were given to the 18 highest scoring African-American and 4 highest scoring Hispanic candidates. In addition to these 64 promotions, the CPD also promoted 26 patrol officers based solely on merit.

The Fraternal Order of Police ("FOP") filed grievances on behalf of patrol officers who had not been promoted, claiming that the out-of-rank and merit promotions violated the collective bargaining agreement between the CPD and the FOP. On October 31, 1991, an arbitrator found that the out-of-rank detective promotions given to the African-American and Hispanic officers violated the collective bargaining agreement, but that the merit-based promotions did not. In response to the arbitration, the CPD made 37 additional detective promotions on March 13, 1992. The Department made these additional promotions in rank order from the eligibility list and this resulted in the top 90 candidates from that list having all been promoted to detective.

Plaintiffs filed a two-count complaint in the district court against the City of Chicago claiming that the CPD's promotion of African- Americans and Hispanics out of rank order violated their rights under the Equal Protection Clause of the Fourteenth Amendment, actionable under 42 U.S.C. sec. 1983. Plaintiffs also asserted a supplemental claim that the promotions violated the Chicago Municipal Code. Before trial, the City stipulated that race and national origin were factors in the promotions resulting from the 1989 detective tests, but argued that the CPD's affirmative action plan was nevertheless constitutional. Based on this admission, the parties agreed to divide the trial into three phases. Phase one of the trial was limited to the question of whether the CPD's affirmative action plan was constitutional. The plaintiffs agreed that if they lost the first phase of the trial, they would not pursue the next two phases which were to address the merit promotions and damages.

As it turned out, the plaintiffs did lose phase one of the trial. After hearing all of the evidence during a lengthy trial, a jury answered 56 special interrogatories--the overwhelming majority of which were answered in the City's favor. Judge Lindberg reviewed the jury's answers and entered judgment for the City on plaintiffs' equal protection claim. The district court also denied plaintiffs' post-trial motions, dismissed plaintiffs' other claims pursuant to the agreement, and entered an order requiring plaintiffs to pay the City's bill of costs. Plaintiffs now appeal the judgment against them on their equal protection claim and the order that they pay the City's costs.

II. Analysis

Because this case concerns actions by a local government that were admittedly influenced by race and national origin,1 we must apply strict scrutiny when reviewing the City's affirmative action plan. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 222 (1995); Billish v. City of Chicago, 989 F.2d 890, 893 (7th Cir. 1993)

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(en banc). To survive strict scrutiny, a race-based classification must promote a compelling governmental interest. See Contractors Ass'n of E. Pa., Inc. v. City of Philadelphia, 91 F.3d 586, 596 (3d Cir. 1996); Wittmer v. Peters, 87 F.3d 916, 918-19 (7th Cir. 1996). It is well- settled law in this Circuit that a governmental agency has a compelling interest in remedying its previous discrimination and the agency may use racial preferencing to rectify that past conduct. See McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 535 (7th Cir. 1997); Wittmer, 87 F.3d at 918; Billish, 989 F.2d at 893; Milwaukee Cty. Pavers Assoc. v. Fielder, 922 F.2d 419, 421 (7th Cir. 1991). However, the government must show real evidence of past discrimination and cannot rely on conjecture. McNamara, 138 F.3d at 1222.

In addition to showing hard proof of a compelling interest, strict scrutiny requires the government to come forward with evidence that its affirmative action plan is narrowly tailored. Adarand, 515 U.S. at 235. An affirmative action plan is narrowly tailored if, as a practical matter, "it discriminates against whites as little as possible consistent with effective remediation." McNamara, 138 F.3d at 1222. Once the governmental entity has shown acceptable proof of a compelling interest in remedying past discrimination and illustrated that its plan is narrowly tailored to achieve this goal, the party challenging the affirmative action plan bears the ultimate burden of proving that the plan is unconstitutional. Aiken v. City of Memphis, 37 F.3d 1155, 1162 (6th Cir. 1994); Concrete Works of Colo., Inc. v. City and Cty. of Denver, 36 F.3d 1513, 1521 (10th Cir. 1994).

Whether there is enough evidence to support a finding of a compelling governmental interest and thereby justify a race-conscious action is a question of law that we review de novo. Contractors Ass'n of E. Pa., 91 F.3d at 596; Concrete Works of Colorado, 36 F.3d at 1522. Similarly, we apply plenary review to the issue of whether the City's affirmative action plan was narrowly tailored. Contractors Ass'n of E. Pa., 91 F.3d at 596. Finally, since the City prevailed at trial, we will view the facts in the light most favorable to the City and draw all reasonable inferences in its favor. See McNamara, 138 F.3d at 1223.

A. Compelling Governmental Interest

During trial, the City presented persuasive statistical evidence that past discrimination by the CPD in the hiring and promotion of African- American and Hispanic police officers reduced the number of black and Hispanic detectives on the police force in 1989. Rather than restate the extensive statistical data presented at trial, we will simply summarize the highlights of that evidence. Dr. Charles Mann, who qualified as an expert in statistics and the statistical...

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