Billish v. City of Chicago, s. 90-1650

• Decision Date: 29 March 1993
• Docket Number: Nos. 90-1650,90-2182,s. 90-1650
• Citation: 989 F.2d 890
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 678, 61 Empl. Prac. Dec. P 42,137, 61 USLW 2643 Earl BILLISH, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees. CHICAGO FIRE FIGHTERS UNION, et al., Plaintiffs-Appellants, v. Richard M. DALEY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 890

989 F.2d 890

61 Fair Empl.Prac.Cas. (BNA) 678,

61 Empl. Prac. Dec. P 42,137, 61 USLW 2643

Earl BILLISH, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.

CHICAGO FIRE FIGHTERS UNION, et al., Plaintiffs-Appellants, v. Richard M. DALEY, et al., Defendants-Appellees.

Nos. 90-1650, 90-2182.

United States Court of Appeals Seventh Circuit.

Argued Dec. 7, 1990.

Decided May 4, 1992.

Reargued En Banc Dec. 15, 1992.

Decided March 29, 1993.

John L. Gubbins, Monfort, WI, Kimberly A. Sutherland, Chicago, IL (argued), for plaintiffs-appellants in No. 90-1650.

Sarah Vanderwicken, Darka Papushkewych, Jay M. Kertez, Ruth M. Moscovitch, Asst. Corp. Counsel, Lawrence Rosenthal, Deputy Corp. Counsel (argued), Frederick S. Rhine, Asst. Corp. Counsel, Mardell Nereim, Kelly R. Welsh, Asst. Corp. Counsel, Office of Corp. Counsel, Appeals Div., Chicago, IL, for defendants-appellees, in No. 90-1650.

Irving Gornstein, David K. Flynn, Asst. Atty. Gen., Dept. of Justice, Civil Rights Div., Appellate Section, Washington, DC, for U.S. amicus curiae.

Robert S. Sugarman, Stephen B. Horwitz (argued), Jacobs, Burns, Sugarman & Orlove, Scott F. Turow, Karen H. Flax, Sonnenschein, Nath & Rosenthal, Chicago, IL, for plaintiffs-appellants in No. 90-2182.

Sarah Vanderwicken, Mandell Nereim, Office of Corp. Counsel, Judson H. Miner, Davis, Miner, Barnhill & Galland, Darka Papushkewych, Jay M. Kertez, Ruth M. Moscovitch, Asst. Corp. Counsel, Lawrence Rosenthal, Deputy Corp. Counsel (argued), Kelly R. Welsh, Asst. Corp. Counsel, Office of Corp. Counsel, Appeals Div., Chicago, IL, for defendants-appellees in No. 90-2182.

Irving Gornstein, John R. Dunne, and David K. Flynn, Asst. Attys. Gen., Department of Justice, Civil Rights Div., Appellate Section, Washington, DC, for U.S. amicus curiae.

Before BAUER, Chief Judge, and CUMMINGS, CUDAHY, POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

We granted rehearing en banc to examine the following difficult and important question: In what circumstances can admitted racial discrimination, challenged as a violation of the equal protection clause because committed by an organ of state government, be upheld as a proper remedial measure when there has been no trial to determine whether the discrimination can survive "strict scrutiny"? For that is the constitutional standard applicable to discrimination against as well as in favor of whites. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). A divided panel of this court upheld the district court's grant of summary judgment for the defendants in one of two cases that had been consolidated for appeal, Chicago Fire Fighters Union v. Daley, No. 90-2182, but reversed it in the other, Billish v. City of Chicago, No. 90-1650, on the ground that the district judge (a different one) had failed to apply the standard of strict scrutiny to the defendants' conduct. 962 F.2d 1269 (7th Cir.1992). Because the district court decided the cases on summary judgment, we can affirm only if, had the record before the district court in the two cases been the record of a complete trial, the defendants would have been entitled to a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251, 106 S.Ct. 2505, 2510, 2511, 91 L.Ed.2d 202 (1986); Cygnar v. City of Chicago, 865 F.2d 827, 834 (7th Cir.1989).

The cases are so similar that we can treat them as if they were one. Both involve challenges to racial favoritism in promotions within the uniformed ranks of the Chicago Fire Department. The ranks are firefighter, engineer, lieutenant, captain, and battalion chief, but the last is not in issue. Promotions are made on the basis of competitive examination. Eligibility to sit for an examination is limited to persons in the rank below, except that a firefighter may, if he wants, sit for the lieutenant's examination, and be promoted to lieutenant, without spending any time as an engineer. The record is silent on whether there is some minimum amount of time that one must spend in one's present rank before being eligible for promotion; but as examinations for promotion are not given every year, there would be delays in promotion even if there were no required waiting periods. After an examination is administered and graded, the candidates are ranked from first to last on the basis of their grades and are placed in rank order on an eligibility list from which promotions to the next rank are made. All listed persons whose grades are above a cut-off point deemed to mark minimum eligibility--all, in short, who have a passing grade on the examination--are eligible for promotion to the next rank.

In 1986 the fire commissioner, defendant Galante, promoted eighteen lieutenants to captain on the basis of their rank order in a captains' eligibility list that had been compiled in 1979, the last time the captains' exam had been given. All the promoted lieutenants were white. Only two members of recognized minorities (blacks and Hispanics, so far as relevant to this case) were left on the list, and their scores on the captain's exam were well below the cut-off point. The commissioner asked the personnel department to lower the cut-off point, and it did. He then, early in 1987, promoted the two minority candidates to captain out of rank order. The plaintiffs in the Billish case are white lieutenants who had scores above the (old) cut-off point on the 1979 list and were passed over when the two minority lieutenants were promoted over them. They also complain because, the list having become all-white after the minority lieutenants were promoted to captain, the commissioner refused to make further promotions from the list, deciding instead to await the compilation of a new list based on a new exam.

In 1987 new eligibility lists were compiled to guide promotion from firefighter to engineer and from lieutenant to captain. These lists were based on examinations administered between 1985 and 1987; part of the engineer's exam was "race normed" to improve the scores of the blacks and Hispanics who took it. From these lists Commissioner Galante in 1987 ordered the promotion of 56 firefighters to engineer and 24 lieutenants to captain. The first 48 promotions to engineer were made in rank order and included 9 minority candidates; the last 8 promotions were of black firefighters taken out of rank order. The first 23 promotions to captain were made in rank order and included 5 blacks (no Hispanics); for the twenty-fourth, the commissioner reached down for a Hispanic and promoted him out of rank order. These departures from rank order were in conformity with a 25 percent goal, established by the Washington administration, for minority promotions in the fire department. The plaintiffs in the Chicago Fire Fighters case are the whites passed over for promotion to engineer or captain as a result of the promotion of nonwhites out of rank order in the 1987 eligibility lists.

The blacks and Hispanics promoted out of rank order to the detriment of the promotional opportunities of the plaintiffs in these two cases were promoted because of their race or ethnicity. The equal protection clause forbids states to give preference to persons on the basis of their race (or ethnicity, but this needn't be discussed separately), even if theirs is not the white race. City of Richmond v. J.A. Croson Co., supra, 488 U.S. at 493, 109 S.Ct. at 720; United States v. City of Chicago, 870 F.2d 1256, 1261 (7th Cir.1989). To that extent the Constitution is truly colorblind. The Supreme Court has, however, carved an exception for the case in which discrimination against whites is necessary to rectify previous discrimination in their favor committed by the state agency that is seeking to practice remedial discrimination. City of Richmond v. J.A. Croson Co., supra, 488 U.S. at 509, 109 S.Ct. at 729; Wygant v. Jackson Board of Education, 476 U.S. 267, 280, 106 S.Ct. 1842, 1849, 90 L.Ed.2d 260 (1986) (plurality opinion); Associated General Contractors of California, Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir.1991). We must decide whether the defendants have so far succeeded in bringing themselves within the exception that no reasonable trier of fact could doubt that the discriminatory promotions described above were appropriate remedial measures; only then would the defendants be entitled to summary judgment, foreclosing the plaintiffs' right to a trial. Since a discriminatory remedy, to pass constitutional muster, must discriminate no more than is necessary to rectify the discrimination for which it is the remedy, City of Richmond v. J.A. Croson Co., supra, 488 U.S. at 505-08, 109 S.Ct. at 726-28; see also Wygant v. Jackson Board of Education, supra, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality opinion), we must consider not only whether the Chicago Fire Department ever discriminated unlawfully in favor of whites but also whether, if so, the curative measures taken in these two cases have been carefully designed to avoid unnecessary injury to white persons.

Although there has never been a formal judicial determination that the Chicago Fire Department ever discriminated in favor of whites, we do not understand the plaintiffs to deny that, for at least a brief period of time after the date in 1972 on which Title VII of the Civil Rights Act of 1964 first became applicable to states and municipalities, the department was in violation of that statute under a "disparate impact" theory of discrimination. The fact that when the city first came under the Act the percentage of blacks and Hispanics in the uniformed ranks of the fire department--5 percent--was far lower than their percentage in the relevant labor market would not of course have established a violation, Hazelwood School District v. United States, 433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977), but the city...