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

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER and RIPPLE, Circuit Judges, and GRANT; RIPPLE; POSNER
Citation962 F.2d 1269
Decision Date08 July 1992
Docket Number90-2182,Nos. 90-1650
Parties58 Fair Empl.Prac.Cas. (BNA) 1269, 58 Empl. Prac. Dec. P 41,454, 60 USLW 2763 Earl BILLISH, John Carasotti, Martin Dunne, Richard A. Graf, John Herling, Edward Jaquszewski, Dennis R. Smith, Henry Scavone and John Schmidt, Plaintiffs-Appellants, v. CITY OF CHICAGO and Louis T. Galante, individually and officially, Defendants-Appellees. CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2, John M. Craven and Larry W. Anoman, et al., Plaintiffs-Appellants, v. Richard M. DALEY, * Louis T. Galante and Jesse Hoskins, et al., Defendants-Appellees.

Page 1269

962 F.2d 1269
58 Fair Empl.Prac.Cas. (BNA) 1269,
58 Empl. Prac. Dec. P 41,454, 60 USLW 2763
Earl BILLISH, John Carasotti, Martin Dunne, Richard A. Graf,
John Herling, Edward Jaquszewski, Dennis R. Smith,
Henry Scavone and John Schmidt,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO and Louis T. Galante, individually and
officially, Defendants-Appellees.
CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2, John M. Craven and
Larry W. Anoman, et al., Plaintiffs-Appellants,
v.
Richard M. DALEY, * Louis T. Galante and
Jesse Hoskins, et al., Defendants-Appellees.
Nos. 90-1650, 90-2182.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 7, 1990.
Decided May 4, 1992.
Rehearing En Banc Granted and
Opinion Vacated July 8, 1992.

Page 1272

John L. Gubbins (argued), Chicago, Ill., for plaintiffs-appellants in No. 90-1650.

Ruth M. Moscovitch, ACC, Appeals Div., Sarah Vanderwicken, Lawrence Rosenthal, DCC (argued), Frederick S. Rhine, ACC, Darka Papushkewych, Jay M. Kertez, Mardell Nereim, Kelly R. Welsh, ACC, Office of Corp. Counsel, Judson H. Miner, Davis, Miner, Barnhill & Galland, Chicago, Ill., for defendants-appellees.

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

Stephen B. Horwitz (argued), Robert S. Sugarman, Jacobs, Burns, Sugarman & Orlove, Chicago, Ill., for plaintiffs-appellants in No. 90-2182.

Before POSNER and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. **

RIPPLE, Circuit Judge.

While these two cases, Billish and Chicago Fire Fighters, are distinct lawsuits and were heard by different judges in the district court, the parties, counsel, legal issues, and facts in both cases significantly overlap. Accordingly, we consolidate them for purposes of decision on appeal. In both cases, nonminority members of the Chicago Fire Department (CFD) challenge as discriminatory

Page 1273

the CFD's decisions to promote various individuals pursuant to an affirmative action program implemented by the City of Chicago (the City). They claim that those promotion decisions violated the Equal Protection Clause and, in one case, the Due Process Clause, of the Fourteenth Amendment. In both cases, the district court granted the City's motions for summary judgment. For the following reasons, we affirm the judgment of the district court in Chicago Fire Fighters (No. 90-2182), and we affirm in part and reverse and remand in part the judgment of the district court in Billish (No. 90-1650).
I
BACKGROUND

The uniformed, non-exempt fire suppression ranks of the CFD, in ascending hierarchical order, consist of firefighter, engineer, lieutenant, captain, and battalion chief. No special training or academic achievement is required for the entry-level position of firefighter. Vacancies at the upper ranks, however, are filled from eligibility lists compiled after job-related examinations are conducted. In general, only candidates who hold the rank immediately below the rank being tested are eligible to take the examination. A firefighter, however, may sit for the lieutenant exam--and may be directly promoted to lieutenant--without spending time as an engineer. After an exam is completed, the candidates are listed on an eligibility list in rank order, i.e., the highest scoring candidate is ranked first and the other candidates are numerically ranked according to their respective scores.

A. Antecedent Litigation and Settlement Order

These two cases present challenges to the promotion procedures employed by the CFD. These cases are not the first, however, to challenge the promotion (or hiring) procedures of the CFD. In 1973, the United States Department of Justice (DOJ) brought a civil rights action against the City claiming that the hiring and promotion practices of the CFD unlawfully discriminated against blacks and Hispanics. At the time of the suit, blacks and Hispanics comprised less than 5% of the uniformed personnel in the CFD. The DOJ moved for a preliminary injunction of the challenged practices, but the district court denied the motion. This court entered an interlocutory injunction against the City on the DOJ's discriminatory hiring claims. See Chicago Fire Fighters Union Local No. 2 v. Washington, 736 F.Supp. 923, 927 (N.D.Ill.1990) (describing case history). Thereafter, the City determined that it could not defend successfully against these claims. Accordingly, the City entered into a consent decree in 1974 (the 1974 consent decree), which established an interim 50% minority (black and Hispanic) hiring ratio and a long-range goal requiring the City to increase significantly the minority composition of the CFD so as to reflect ultimately the minority composition of the City.

Little hiring occurred between 1974 and 1978 in the CFD. Consequently, the interim hiring ratio established in the 1974 consent decree did little to improve the minority proportion in the CFD. Indeed, by September of 1978, minorities comprised only about 9% of the CFD's uniformed personnel. The DOJ returned to the district court seeking an order to extend through 1980 the hiring goals set forth in the 1974 consent decree. On September 12, 1978, the district court granted the motion in part; the court ordered the City to fill 120 of the next 280 firefighter vacancies with minority candidates and maintain the long-range hiring goal articulated in the 1974 consent decree. R.71 (Chicago Fire Fighters) Ex.A. In June 1979, the district court granted another DOJ motion and ordered that, if the new 1979 hiring eligibility list were used for more than two years or 500 names, 50% of all further hiring must be of minority candidates. R.71 (Chicago Fire Fighters) Cole Aff. p 8.

As for promotions, the DOJ challenged as discriminatory the City's promotion examinations for engineer, lieutenant, and captain administered in the late 1960s and early 1970s. While the district court upheld the validity of these exams under Title

Page 1274

VII, this court granted the DOJ's motion for an injunction pending appeal enjoining the City from making any permanent promotions based on the engineer and lieutenant examinations. See United States v. City of Chicago, 573 F.2d 416, 420 (7th Cir.1978). Once this court reached the merits on appeal, it determined that the district court applied the wrong legal standard in evaluating one aspect of the promotion examinations and that further findings of fact were necessary; therefore, this court reversed the decision of the district court and remanded for further proceedings. See id. at 416, 424-29. Furthermore, this court granted interim relief by modifying its prior injunction. We enjoined any permanent promotions based on the engineer, lieutenant, and captain promotion examinations unless the promotions were "first offered to minority candidates on the respective lists in the order of their rank thereon." Id. at 429. In 1978, prior to the completion of the remand proceedings, the City administered new promotion examinations for each rank in the CFD. The DOJ, in early 1980, informed the City that it intended to file a new suit challenging those promotion examinations because they had a severe adverse impact against minority candidates.

In response, representatives of the City and the CFD met together to assess the strengths and weaknesses of the DOJ's case. They concluded that the examinations indeed had an adverse impact on minority candidates, that the examinations had not been properly validated, particularly for use in ranking candidates, and that the efficiency ratings (one part of the candidate's final score) were racially discriminatory. In light of the strength of the DOJ's case, the litigation costs, and the recognition that the promotion scheme had treated unfairly black and Hispanic members of the CFD, the City decided to settle the suit. During the settlement agreement negotiations, the DOJ proposed a 1-to-4 minority/nonminority promotion ratio as an interim requirement for promotion to all ranks until new, validated promotion examinations could be administered and new promotion lists posted. The City agreed to the proposal, except to the extent that the 1-to-4 ratio applied to the ranks of captain and battalion chief. The City maintained that the ratio was not feasible considering the few minorities whose current rank made them eligible for promotion to captain or battalion chief. The City proposed that the 1-to-4 ratio apply to the ranks of engineer and lieutenant and that a long-term promotion goal be instituted, which would require the City to increase substantially minority participation at each rank (including captain and battalion chief), so that the minority composition of each rank would mirror the racial composition of the preceding rank.

The DOJ agreed with the City's counter-proposal, and it was drafted into a settlement agreement. The district court approved the settlement agreement and incorporated it into an Order of Settlement entered March 31, 1980 (1980 settlement order). It states that

defendants, as a long range goal, shall seek to promote black and Hispanic persons in sufficient numbers so as to increase substantially the minority composition in each of the promotional ranks [of the CFD] with the objective that each such rank become more representative of the racial and ethnic composition of the rank or ranks from which promotion to it are made.

R.25 (Billish) Ex.I at 2-3. The 1980 settlement order further required the City to employ a 1-to-4 minority/nonminority promotion ratio for any promotions beyond number 213 on the 1979 engineer eligibility list and/or number 113 on the 1979 lieutenants list. If necessary to meet the 1-to-4 ratio, the order instructed that "the 1979 Engineer and Lieutenant Eligibility List shall be expanded by reducing the cut off score from 70." Id. at 3. The City also was required to compile new promotion eligibility lists consistent...

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  • Rayl v. Fort Wayne Community Schools, No. 1:99-CV-35.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 10 Febrero 2000
    ...Co., 490 U.S. at 650-51, 109 S.Ct. at 2121 (quoting Hazelwood Sch. Dist., 433 U.S. at 308, 97 S.Ct. at 2741; Billish v. City of Chicago, 962 F.2d 1269, 1284 (7th Cir. 1992)). Since Rayl has failed to present evidence to properly analyze these statistics, and given their limited usefulness i......
  • Chamberlain v. Civil Serv. Comm'n of Gurnee, No. 2–12–1251.
    • United States
    • United States Appellate Court of Illinois
    • 19 Febrero 2014
    ...employment, noting in passing that an employee does not have a property interest in prospective promotion); Billish v. City of Chicago, 962 F.2d 1269, 1300 (7th Cir.1992) (commission had discretion to choose candidate; insufficient evidence to establish property interest in promotion); Petr......
  • Raso v. Lago, Civil Action No. 96-11945.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 6 Enero 1997
    ...(describing minority outreach and recruitment programs for firefighting positions as "race-neutral"); Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir.1992) (same), rev'd on other grounds, 989 F.2d 890 (7th Cir. 1993) (en banc); Cf. South-Suburban Housing Center v. Greater South Sub......
  • Mummelthie v. City of Mason City, Iowa, No. C 93-3030.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 9 Enero 1995
    ...Sindermann, 408 U.S. at 601-02, 92 S.Ct. at 2699-2700); Packett, 969 F.2d at 725 (also citing Sindermann); Billish v. City of Chicago, 962 F.2d 1269, 1300 (7th Cir.1992) (but holding that there was no substantial evidence of such a custom or practice in that case, thus dismissal of the due ......
  • Request a trial to view additional results
13 cases
  • Rayl v. Fort Wayne Community Schools, No. 1:99-CV-35.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 10 Febrero 2000
    ...Co., 490 U.S. at 650-51, 109 S.Ct. at 2121 (quoting Hazelwood Sch. Dist., 433 U.S. at 308, 97 S.Ct. at 2741; Billish v. City of Chicago, 962 F.2d 1269, 1284 (7th Cir. 1992)). Since Rayl has failed to present evidence to properly analyze these statistics, and given their limited usefulness i......
  • Chamberlain v. Civil Serv. Comm'n of Gurnee, No. 2–12–1251.
    • United States
    • United States Appellate Court of Illinois
    • 19 Febrero 2014
    ...employment, noting in passing that an employee does not have a property interest in prospective promotion); Billish v. City of Chicago, 962 F.2d 1269, 1300 (7th Cir.1992) (commission had discretion to choose candidate; insufficient evidence to establish property interest in promotion); Petr......
  • Raso v. Lago, Civil Action No. 96-11945.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 6 Enero 1997
    ...(describing minority outreach and recruitment programs for firefighting positions as "race-neutral"); Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir.1992) (same), rev'd on other grounds, 989 F.2d 890 (7th Cir. 1993) (en banc); Cf. South-Suburban Housing Center v. Greater South Sub......
  • Mummelthie v. City of Mason City, Iowa, No. C 93-3030.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 9 Enero 1995
    ...Sindermann, 408 U.S. at 601-02, 92 S.Ct. at 2699-2700); Packett, 969 F.2d at 725 (also citing Sindermann); Billish v. City of Chicago, 962 F.2d 1269, 1300 (7th Cir.1992) (but holding that there was no substantial evidence of such a custom or practice in that case, thus dismissal of the due ......
  • Request a trial to view additional results

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