Bryant v. City of Chicago

• Decision Date: 14 January 2000
• Docket Number: Nos. 99-1272,s. 99-1272
• Citation: 200 F.3d 1092
• Parties: (7th Cir. 2000) LLOYD BRYANT, DESMOND BUTLER, DORIS BYRD, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee. & 99-3475
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1092

200 F.3d 1092 (7th Cir. 2000)

LLOYD BRYANT, DESMOND BUTLER, DORIS BYRD, et al., Plaintiffs-Appellants, v. CITY OF CHICAGO, Defendant-Appellee.

Nos. 99-1272 & 99-3475

In the United States Court of Appeals For the Seventh Circuit

Argued September 30, 1999

Decided January 14, 2000

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 1890--Robert W. Gettleman, Judge. [Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., COFFEY, and EVANS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

Plaintiffs are forty-four African-American or Latino present or former sergeants of the Chicago Police Department. Plaintiffs failed to be promoted to lieutenant after taking the 1994 police lieutenant examination. Seven hundred sixty-five police sergeants took the examination of which 184 (24%) were African-American and 55 (7%) were Hispanic. The Police Department made 108 rank- order promotions based on the 1994 examination, granting promotions to those officers who obtained the highest 108 scores on the examination. Of the 108 officers promoted, five were African-American and one was Hispanic. Minority promotions, therefore, represented slightly less than 6% of the total number of promotions granted. It is undisputed that the 1994 examination had a disparate impact on minority candidates, and the parties have stipulated that this statistical evidence constitutes a prima facie case of discrimination.

In 1995, the plaintiffs filed a complaint against the City of Chicago (the "City"), alleging that the City deprived them of equal employment opportunities in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. sec. 2000e, et seq. No claim was made by plaintiffs, however, that the City intentionally discriminated against them because of their minority status. Plaintiffs sought to preliminarily enjoin the City from making any rank-order promotions based on the 1994 lieutenant examination. The preliminary injunction was denied by the district court on the basis that plaintiffs had failed to establish either irreparable harm or the lack of an adequate remedy at law. The district court also found the balance of harms weighed against the granting of the preliminary injunction.

In a Title VII disparate impact case, the plaintiff bears the initial burden of establishing a prima facie case by showing that the promotional method in question had an adverse impact on minorities. If the plaintiff makes this required initial showing, the burden then shifts to the employer who must prove that the evaluation method is valid by showing that it is "job related" and "consistent with business necessity." 42 U.S.C. sec. 2000e-2k(1)(A)(i). The evaluation method may be shown to be job related under any one of three tests: criterion related, content validity, or construct validity. Uniform Guidelines on Employee Selections Procedures, 29 C.F.R. sec. 1607.5B. If the employer succeeds in validating the evaluation method, the burden shifts back to the plaintiff to prove that there was another available method of evaluation which was equally valid and less discriminatory that the employer refused to use. 42 U.S.C. sec. 2000e-2k(1)(A)(ii); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).

This case was tried in a bench trial in March 1997. As previously mentioned, the City conceded an adverse impact on minority candidates because of their poor showing on the examination. In a thorough Memorandum Opinion and Order issued on June 30, 1998, the district court found that the 1994 examination was job related under the content validity approach, but agreed with the plaintiffs that the City had a less discriminatory but equally valid method of promotions available which it did not use, namely a combination of rank-order promotions with what are referred to as "merit promotions," a process which we shall examine in more detail shortly. When the court considered what relief was available under those circumstances, it found the record insufficient and set an additional hearing. That hearing resulted in a second Memorandum Opinion and Order issued on September 16, 1998. The court held that, in view of the equally valid but less discriminatory method which the City had not used, the court had the opportunity to broadly exercise its discretion in granting relief as outlined in 42 U.S.C. sec. 2000e-5(g). The court, therefore, awarded some relief to sergeants other than the named plaintiffs. The court found the City's failure directly impacted thirteen sergeants, minority and non-minority, who had taken the 1994 examination. These thirteen officers had been chosen for promotion to lieutenant under the merit promotion plan, but had not been promoted.¹ Only one of these officers, Sergeant Raymond, is a plaintiff in the present case.

The court ordered the City to promote the thirteen directly injured sergeants to lieutenants and to award them differential back pay and other benefits from April 1995, the time when they had been passed over for promotion. Exceptions were made in individual cases where the candidate for some reason was no longer eligible for promotion.² The district judge declined to try to identify and promote any additional sergeants, stating that to do so "would be conjectural and overly subjective," as well as disruptive, and instead ordered the City to pay the plaintiffs who were not promoted a minimal award reflecting their lost opportunity to be selected for a merit promotion. The district court added that, except for certain disputed issues, the City was doing all it could "to promote racial and ethnic diversity among the ranks of its lieutenants."

On appeal, plaintiffs contend that the City did not meet its burden of proving that the examination was content valid. If the examination is determined to be job related, however, then the plaintiffs argue that, based on its finding that the combination of rank-order and merit promotions represented an equally valid, less discriminatory alternative promotional method, the district court erred in failing to order additional merit promotions.

I. Background

Initially recognizing the difficulties of developing and administering an acceptable process for the hiring and promotion of police officers in a large metropolitan area, the Mayor of Chicago appointed a "Blue Ribbon Committee" to submit recommendations about how to proceed. The Vice Chairman of that committee, James Holzhauer, for instance, called by plaintiffs at trial, testified that he was a partner in the firm of Mayer, Brown and Platt and specialized in handling employment law matters. He was also a part-time faculty member teaching labor and discrimination law at the University of Chicago Law School. Further, Holzhauer had represented the Fraternal Order of Police and other police unions in the area of discrimination. Earlier in his career he had been a city manager and for a short period of time also had been the civilian police commissioner for an upstate New York police department. He explained how the Mayor's Committee had functioned and that the members were an independent task force not paid by the City. He was obviously qualified for this committee assignment.

One of the recommendations of the Mayor's Committee was that outside consultants be retained to develop and to administer promotion examinations. Following that recommendation the City retained Barrett & Associates, Inc., of Akron, Ohio, described as a "Human Resource Consulting Firm" specializing in employee matters including promotion testing. The firm is headed by Dr. Gerald B. Barrett who holds a Ph.D. in psychology, as well as a law degree. He teaches testing and measurement, personnel selection, performance evaluation, and personnel psychology as well as law at the University of Akron. Dr. Barrett developed and administered the lieutenant examination challenged in this suit. Dr. Barrett and his firm had previously developed more than fifty examinations for police and fire departments including examinations for the cities of Cleveland and Akron, Ohio. Some of Dr. Barrett's work has been unsuccessfully challenged in court, including federal court. Along with Dr. Barrett and his firm, the City retained the Arthur Andersen company to aid in the grading of the examination.

Dr. Barrett was no stranger to the Chicago Police Department. In 1993, Dr. Barrett had developed an examination for promotion to Chicago Police Sergeant. In preparing that examination, Dr. Barrett conducted a job analysis of the sergeant position by interviewing approximately ninety Chicago sergeants along with twenty-eight lieutenants about their duties and responsibilities. For the lieutenant examination now in question, Dr. Barrett, following that same course, interviewed additional lieutenants, captains, and sergeants, including minorities. Dr. Barrett also toured the police districts, rode along with lieutenants on duty, observed the work of lieutenants, and reviewed applicable police documents, reports, and orders. Based on the data he gathered from his preliminary work, Dr. Barrett prepared a "Master Job Description" for the Chicago Police Lieutenant position. The Master Job Description identified what are referred to as "major work behaviors," including the associated tasks and responsibilities of lieutenants. In creating the Master Job Description, Dr. Barrett measured the importance and frequency of a lieutenant's tasks and responsibilities. Dr. Barrett also consulted certain source materials which contained information with which a lieutenant was expected to be familiar. These materials included Police Department policies and directives, certain sections of the Illinois Statutes and the Chicago Municipal Code, the collective bargaining agreement of the Union, and the Department's community policing strategy. A list of those source materials was made available to the...