Barnhill v. City of Chicago, Police Dept.

• Decision Date: 06 March 2001
• Docket Number: No. 98 C 4807.,98 C 4807.
• Citation: 142 F.Supp.2d 948
• Court: U.S. District Court — Northern District of Illinois
• Parties: Gordon BARNHILL, Steven Glombicki, Charles McCorkle, Thomas O'Conner, individually and on behalf of all similarly situated plaintiffs, Plaintiffs, v. CITY OF CHICAGO, POLICE DEPARTMENT, a municipal corporation, Defendant.

Page 948

142 F.Supp.2d 948

Gordon BARNHILL, Steven Glombicki, Charles McCorkle, Thomas O'Conner, individually and on behalf of all similarly situated plaintiffs, Plaintiffs, v. CITY OF CHICAGO, POLICE DEPARTMENT, a municipal corporation, Defendant.

No. 98 C 4807.

United States District Court, N.D. Illinois, Eastern Division.

March 6, 2001.

Pasquale Angelo Fioretto, Catherine Marie Chapman, Jennifer L. Dunitz-Geiringer, Bryan P. Diemer, Baum, Sigman, Auerbach, Pierson, Neuman & Katsaros, Ltd., Thomas J. Pleines, Law Offices of Thomas J. Pleines, Chicago, for Dean C Angelo, plaintiff.

Catherine Marie Chapman, Bryan P. Diemer, Baum, Sigman, Auerbach, Pierson, Neuman & Katsaros, Ltd., Chicago, IL, for Gordon Barnhill, Steven Glombicki, Evangelos Hitiris, Charles McCorkle, Thomas O'Conner, plaintiffs.

Brian L. Crowe, Shefsky, Froelich & Devine, Ltd., Chicago, IL, James Francis Botana, Jackson, Lewis, Schnitzler & Krupman, Chicago, IL, Patrick J. Rocks, Jr., Nancy L. Van Allen, Jay Michael Kertez, City of Chicago, Law Department, Corporation Counsel, Chicago, IL, for City of Chicago, Department of Police, a municipal corporation, defendants.

MEMORANDUM OPINION AND ORDER

PALLMEYER, District Judge.

In recent years, both minorities and non-minorities have challenged the allegedly discriminatory nature of the Chicago Police Department's ("CPD") promotion process. See Erwin v. City of Chicago, No. 90 C 950, 1998 WL 704295, at *6 (N.D.Ill. Sept.30, 1998) ("A review of the history of Chicago Police Department promotional examinations indicates that changes in the exams and procedures are likely; as are continued legal challenges."). As a result, the City of Chicago finds itself wedged between a rock and a hard place-incessantly retooling its examination structure hoping to appease its officers as well as the state and federal courts.

The subject of the latest challenge is the 1998 examination for promotion to the rank of sergeant (the "1998 Sergeant Exam"). In late 1997, the CPD announced that the 1998 Sergeant Exam would consist of three parts: a Written Qualifying Test ("WQT"), a written Assessment Exercise, and a Merit Selection Process (the "Merit Component"). Any officer who achieved a score of at least 147 on the WQT was eligible to (1) take the Assessment Exercise (and, as a result of this score, be placed in rank order on the Assessment Eligible List) and (2) participate in the Merit Component. The Merit Component itself was a three-part process. First, exempt officers (senior-level executive staff who serve at the pleasure of the Superintendent of Police) nominated eligible patrol officers on the basis of specific job-related assessment dimensions. These nominees were then reviewed by the Academic Selection Board ("ASB"), a panel comprised of CPD deputy superintendents. The ASB then recommended certain of the nominees to Terry Hillard, the Superintendent of Police, who ultimately chose those promoted through this Merit Component.

According to the CPD's 1997 announcement, a maximum of 30% of the resulting promotions were to be based on the Merit Component and the remaining percentage were to be made in rank order from the Assessment Eligible List. In August 1998, the City promoted 251 patrol officers to sergeant as a result of this examination. Of these 251, 178 were promoted in rank order from the Assessment Eligible List, but see infra note 8, and 73 were promoted as a result of the Merit Component. Plaintiffs Gordon Barnhill, Steven Glombicki, Charles McCorkle, and Thomas J. O'Connor, all Caucasian males, claim that the City of Chicago committed racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq., and the Equal Protection Clause of the Fourteenth Amendment, by including the Merit Component in the 1998 Sergeant Exam. Plaintiffs allege that the Merit Component was a mask for an illegal affirmative action program and, further, that, as applied, the Merit Component had a disparate impact on "non-minority males." Notably, Plaintiffs have admitted that they did not deserve promotions by virtue of the Merit Component, but nevertheless believe that they have been injured because they would have been promoted in August 1998 if all 251 promotees had been chosen in rank order from the Assessment Eligible List. Both parties now move for summary judgment. For the reasons set forth below, the City's motion is granted and Plaintiffs' motion is denied.

FACTUAL BACKGROUND¹

A. United States v. Chicago

The tortured history of challenges to the CPD's promotion processes stretches back as far as 1971. In 1976, Judge Prentice Marshall of the United States District Court for the Northern District of Illinois found that the 1971 Sergeant Exam discriminated against African-Americans, Hispanics, and women in violation of Title VII. See United States v. Chicago, 411 F.Supp. 218 (N.D.Ill.1976). Judge Marshall consequently entered a judgment directing the City to:

[a]dopt and seek to achieve a goal of promoting blacks, Spanish-surnamed persons and females to the rank of sergeant so as to have and maintain a sergeant mix reasonably representative of the patrol force .... To ensure as quickly as practicable the attainment of this goal, 40% of the promotions to the rank of sergeant shall consist of black and Spanish-surnamed persons, subject to the availability of qualified applicants, until further order of this Court.

Chicago, 411 F.Supp. at 250-51. In 1981, the Seventh Circuit determined that a sufficient showing was made to justify lowering the court-imposed minority quota to 25%. See United States v. City of Chicago, 663 F.2d 1354 (7th Cir.1981). Finally, in 1990, the Seventh Circuit vacated Judge Marshall's equitable decree altogether. United States v. Chicago, 897 F.2d 243, 244 (7th Cir.1990) ("Bringing this case to conclusion with the existing parties will cause no injustice. If new events amount to discrimination, the courts remain open to fresh litigation to enforce the right of all to be treated without regard to race, sex, and national origin.").

B. The Blue Ribbon Panel

As a result of the United States v. Chicago litigation, the City assembled a Blue Ribbon Panel (the "Panel") in or around 1989 to review the City's hiring and promotion processes. (Defendant City of Chicago's Response to Plaintiffs' Rule 56.1 Statement of Uncontested Facts ("City's Response") at ¶ 7.) The City hoped that the Panel's recommendations would help stave off future litigation and public controversy and make the testing process as fair and complete as possible. (City's Response at ¶ 7.) James Holzhauer of the law firm Mayer, Brown & Platt served as Vice Chairman of the Panel. (City's Response at ¶ 4.) Holzhauer, who had represented the City in a wide variety of employment-related matters, coordinated all meetings, and attended the informal hearings where, for example, the Panel conferred with leaders of the Fraternal Order of Police, groups representing African-American, Hispanic, and female police officers, and leaders of the associations representing police sergeants and lieutenants. (Exhibit 3 (Final Panel Report) to Plaintiffs' Statement, at 2; City's Response at ¶ 4; Defendant City of Chicago's Additional Facts at ¶ 62.)

In late 1991 (the record does not indicate the exact date) the Panel issued the final version of its Blue Ribbon Panel on Police Testing, Hiring and Promotion: Report and Recommendations (the "Final Panel Report"). (Plaintiffs' Statement at ¶ 14.) During the discovery phase of this litigation, the City produced an earlier draft of this Panel Report (the "Draft Panel Report"). That earlier draft included a section titled "Recruiting," which announced: "The City is committed to affirmative action and to having a Police Department that is representative of all groups that make up the City of Chicago." (Plaintiffs' Statement at ¶ 10). The Draft Panel Report also included a section entitled "Promotion," which included seven paragraphs. Not one of these paragraphs discussed plans for an affirmative action program. (Exhibit 2 to Plaintiffs' Statement at 10-13.) In the Final Panel Report, the language in the Recruiting section was modified to read, "[t]he City is committed to having a Police Department that is broadly representative of the diverse groups that make up the City of Chicago." The Final Panel Report also included a Promotion section which again made no reference to affirmative action.

C. Majeske v. City of Chicago

Despite the Blue Ribbon Panel and its Final Panel Report, litigation over the CPD's promotion processes continued. For example, in 1989, the CPD administered a test to determine which patrol officers it would promote to the rank of detective. Majeske v. City of Chicago, 218 F.3d 816, 818 (7th Cir.2000). The test consisted of two components-the first was a written job knowledge multiple-choice test and the second was an oral examination. Id. After reviewing the results of the written test, though, the CPD concluded that promoting in rank order based on the results would adversely impact African-American and Hispanic applicants. Id.

In its effort to address the adverse impact issue, the CPD devised the following selection method. Id. First, it divided all of the candidates into three groups-Caucasian, African-American and Hispanic-and then invited those that scored in the top 17% on the written test in each group (619 overall) to take the oral examination. Id. Then, it combined the written and oral scores for these 619 applicants and used these combined scores to create a promotion eligibility list. Id. at 819. In August 1990, the CPD promoted 64 officers from this list. Id. The top 42 people on the list were promoted in rank order, but the other 22 promotions were made out of rank order and were awarded to the 18 highest scoring African-American and 4 highest scoring Hispanic candidates. Id.

Second, in addition to these 64...