Ernst v. City of Chi.

• Decision Date: 21 December 2018
• Docket Number: No. 08 C 4370,08 C 4370
• Parties: STACY ERNST, DAWN HOARD, KATHERINE KEAN, MICHELLE LAHALIH, and IRENE RES-PULLANO, Plaintiff(s), v. CITY OF CHICAGO, Defendant(s).
• Court: U.S. District Court — Northern District of Illinois

STACY ERNST, DAWN HOARD, KATHERINE KEAN, MICHELLE LAHALIH,and IRENE RES-PULLANO, Plaintiff(s), v. CITY OF CHICAGO, Defendant(s).

No. 08 C 4370

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

December 21, 2018

Judge Rebecca R. Pallmeyer

MEMORANDUM ORDER AND OPINION

In 2008, Plaintiffs Stacy Ernst, Michelle Lahalih, Dawn Hoard, Irene Res, and Katherine Kean sued the City of Chicago for sex discrimination under Title VII of the Civil Rights Act of 1964. They argued that a physical fitness test given to paramedic job applicants by the Chicago Fire Department (CFD) in 2005 was intentionally discriminatory and that it had a disparate impact on women. In 2014, Judge Norgle conducted a bench trial on the disparate impact claims and entered judgment for the City; a jury found for the City on the disparate treatment claims. Ernst v. City of Chicago, 837 F.3d 788, 793 (7th Cir. 2016). On appeal, the Seventh Circuit remanded the disparate treatment claim for a new trial, and it directed the district court to enter judgment for Plaintiffs on the disparate impact claim. Id. at 807. On remand, the parties stipulated that Plaintiffs would have been hired on April 1, 2005. In August 2017, this court held a three-day bench trial on the disparate impact damages. Final resolution of Plaintiffs' disparate treatment claim has been stayed pending the determination of the disparate impact damages. (Proposed Scheduling Order [676], at 3; Transcript [670], at 3:22-4:6.) The parties are directed to prepare a proposed judgment order in accordance with the findings below.

BACKGROUND

I. Chicago Fire Department Paramedic Hiring Process

Analysis of this ten-year-old case begins with a description of the process by which the Chicago Fire Department ("CFD") hires paramedics. The fire department hiring plan¹ requires that CFD process applications through the City's Department of Human Resources ("HR"). (Tr. 732:3-4 (Deputy Commissioner Owen²); Ex. J16.) When the fire department determines that it has vacancies to fill, HR staff prepare a job posting and accept applications for paramedic positions, creating a list of candidates who are appropriately credentialed. (Tr. 732:3-11 (Owen).) HR then provides CFD with an eligibility list containing the names of those who "are to be considered next in the [hiring] process." (Tr. 732: 10-22 (Owen). See also Tr. 614:11-15 (Bryant)); Tr. 624:16-625:12 (Bryant) (describing the referral list process).) Certain exceptions to the hiring plan--for example, settlements or judgments in litigation--allow CFD to hire paramedics outside of the eligibility list; otherwise, paramedics are "supposed" to be hired from the eligibility list. (Tr. 732:21-22, 737:10-21 (Owen); Ex. J16, at PL-D00043.) CFD paramedic eligibility lists were opened at least three times between 2004, when the Plaintiffs applied, and the 2017 damages trial: in 2004, 2007, and 2011. (Ex. P129; Tr. 258:13-261:6 (Ernst).) From each list, CFD may call multiple paramedic training academy classes. (See Tr. 705:20-706:1 (Vasquez); Ex. J10.) Each list need not be completely exhausted before a new list is opened; when that happens, the older list is retired and candidates who were not called but remain interested must reapply. (See Tr. 259:3-8 (Ernst).)

In order to maintain an appropriate number of paramedics, fire department officials monitor current and upcoming paramedic vacancies. As the Deputy Fire Commissioner Anthony Vasquez explains, "When the numbers [of vacancies] get close to a full class . . . in the training academy, recommendation will be made to the fire commissioner that we have a [paramedic training] class." (Tr. 680:3-6 (Vasquez).) After review and approval from the City's budget office, CFD invites a group of candidates from the eligibility list to attend "initial processing." (Tr. 595:24 (Bryant); Tr. 680:17-681:20 (Vasquez).)

At processing, candidates turn in paperwork, "they are photographed and fingerprinted, [they are] drug tested . . . and they're informed . . . about the process" for becoming a CFD paramedic. (Tr. 596:11-15 (Bryant).) From 2000 through at least 2009, processed paramedic applicants next took a physical skills test ("PAT"). Ernst, 837 F.3d at 792 ("Between 2000 and 2009, nearly 1,100 applicants took [the PAT] entrance examination."). In 2014, the City replaced the previous PAT with a new physical skills test—the "Avesta" test. (Ex. J33, at PL-D00052; Tr. 587:14-19 (Bryant).) These physical tests act as gatekeepers to the next step of the hiring process: If applicants fail the PAT or Avesta, they do not become CFD paramedics.³ If they succeed, they receive a conditional job offer and may become part of the fire academy class. (Ex. D89 ("The Chicago Fire department is pleased to extend you a conditional offer of employment as a Probationary (Candidate) Fire Paramedic. This offer is conditioned upon your successfully completing . . . the medical examination. . . . This offer is further conditioned upon the availability of an open position in a training class at the Chicago Fire Academy.") (emphasis in original).) The court understands that beginning with their entrance into the academy,⁴ new hires must completea nine-month probationary hire period. (Tr. 539:23-540:3 (Porter) (noting the nine-month probationary period).) During that period, they may be fired for any reason, and they may not maintain any secondary employment. (Tr. 700:11-701:4 (Vasquez).)

In 2004, Plaintiffs Ernst, Lahalih, Hoard, Res, and Kean applied for paramedic jobs with the Chicago Fire Department. Ernst, 837 F.3d at 792. The department called and processed each plaintiff, and each took a pre-hire physical abilities test designed by Human Performance Systems, Inc. (the "PAT"). Each Plaintiff failed the PAT. Ernst, 837 F.3d at 792. The Seventh Circuit ruled in 2016 that the PAT had an unjustified disparate impact on women-applicants and ordered the district court to enter judgment on that issue. Ernst, 837 F.3d at 805. On remand, the parties stipulate that, but for discrimination, "each Plaintiff would have been hired as a firefighter paramedic on April 1, 2005." (Proposed Scheduling Order [676], at 2. See also Transcripts of Trial Proceedings ("Tr.") [739], at 4:23-25.)

II. The Plaintiffs

Since 2005, each Plaintiff has maintained steady employment. With the exception of Ms. Lahalih, who took a brief hiatus from the paramedic field, all five plaintiffs have worked and continue to work in positions that require a paramedic license. Their individual circumstances are described below.

A. Ms. Ernst

Plaintiff Stacy Ernst is currently the chief paramedic at LifeLine Ambulance, where she has worked since October 2008. (Tr. 242:13-15, 246:7-9 (Ernst).) That company "provides emergency and non-emergency transport of the sick and injured throughout the City of Chicago" and to the "entire metropolitan region." (Id. at 242:17-19 (Ernst).) Her duties at LifeLine include acting as "the liaison for the company with the . . . Illinois Department of Public Health," "hiringEMTs, EMT-Bs, and paramedics," supervising those employees, and overseeing "ambulance, licensure, stocking of the vehicles, [and] compliance with region and state equipment directives." (Id. at 242:21-243:12 (Ernst).) As of August 2017, Ms. Ernst was managing 38 ambulances and "anywhere from 140 to 185 employees." (Id. at 243:14-17 (Ernst).) Some of her employees at LifeLine are CFD paramedics who work second jobs with LifeLine—some of these employees are CFD paramedics-in-charge, and one, Ms. Ernst's brother, is a CFD Ambulance Commander. (Tr. 243:20-244:17 (Ernst).)

As the chief paramedic, Ms. Ernst is in the "highest position at the company, unless the CEO or the COO leaves," and she did not anticipate either leaving at the time of this trial. (Id. at 246:25-247:3 (Ernst).) At LifeLine, she does not receive retirement benefits, and she is earning a lower salary than she would at CFD, had she been hired in April 2005. (Id. at 249:14-23 (Ernst).) Ms. Ernst has also maintained secondary employment at the University of Illinois at Chicago while working at LifeLine. (Tr. 250:21-25 (Ernst).)

Prior to her employment at LifeLine, Ms. Ernst worked as a paramedic, paramedic preceptor, and field training officer⁵ at Medical Express Ambulance ("MedEx").⁶ (Id. at 247:12-17.) Ms. Ernst was employed at MedEx from February 1998 through the time she began at LifeLine. (Tr. 248:21-23.) At no point since 2005 has she been unemployed (id. at 248:24-249:1), and she has continued seeking employment with CFD: Ms. Ernst appears to have applied for every CFD paramedic hiring opportunity since 1996. (Tr. 258:13-261:6 (Ernst) (noting her applications in 1996, 2000, 2004, 2007, and 2011).)

B. Ms. Hoard

Plaintiff Dawn Hoard is currently an emergency room technician at the University of Chicago Comer Children's Hospital.⁷ (Tr. 202:25-203:4 (Hoard).) She has worked there since 2005, and her duties include providing pre-triage and first responder-type care to patients who arrive at the emergency room.⁸ (Id. at 204:18-205:23.) There are no higher-paying promotions available to her in this role, and she receives a pension smaller than one she would have received at CFD. (Tr. 207:25-208:1(Hoard); Exs. J22, J32; Ex. P115, at a 7.)

Ms. Hoard has also worked, "sporadic, intermittent" side jobs since 2005. (Tr. 202:22 (Hoard).) She has worked as a paramedic preceptor at Christ Advocate Hospital and as a paramedic class instructor. (Tr. 202:16-20 (Hoard).) She has also worked as a paramedic during White Sox games and at the United Center. (Id. at 203:6-8.) Finally, she did some limited non-paramedic office work for her sister. (Id. at 203:17-19.) None of this employment has affected her primary employment with the University of Chicago. (Id. at 203:20-24.)

Prior to her current position, Ms. Hoard was employed at Dixmoor Fire Department, where she held positions as a paramedic, firefighter/paramedic, and...