Erwin v. Daley

• Decision Date: 18 September 1996
• Docket Number: Nos. 95-1932,s. 95-1932
• Citation: 92 F.3d 521
• Parties: 68 Empl. Prac. Dec. P 44,249 Ann ERWIN, Dwight Bleke, Richard Moeller, et al., Plaintiffs-Appellees, v. Richard M. DALEY, Glen Carr, Kelly Welsh, et al., Defendants-Appellants. to 95-1934.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 521

92 F.3d 521

68 Empl. Prac. Dec. P 44,249

Ann ERWIN, Dwight Bleke, Richard Moeller, et al., Plaintiffs-Appellees, v. Richard M. DALEY, Glen Carr, Kelly Welsh, et al Defendants-Appellants.

Nos. 95-1932 to 95-1934.

United States Court of Appeals Seventh Circuit.

Argued Dec. 4, 1995.

Decided Aug. 8, 1996.

Rehearing and Suggestion

for Rehearing En Banc

Denied Sept. 18, 1996. ^*

Kimberly A. Sutherland (argued), Chicago, IL, Ronald A. Bredemann, Flood & Bredemann, Des Plaines, IL, for Ann Erwin, Richard Moeller, Charles Wippo, Alexander Karas, John Wolanski, Jesse R. Acosta, Frank L. Aguinaga, Richard L. Allen, Martin A. Anderson, Lawrence C. Augustine, Jr., Gary Baranowski, Thomas J. Barnett, Anthony J. Barry, Thomas E. Becker, Ronald Bellavia, John E. Berry, Joan Biebel, Quentin C. Black, Curtis E. Blanc, Dwight L. Bleke, Robert W. Bokowski, Fred O. Bonke, Emmett A. Boyd, Patrick J. Brannigan in No. 95-1932 and John J. Deloughery, George T. Head, William Alexander, Robert Gill, Raymond Greenwood, Lawrence Johnson, Robert Keating, Steven Schwieger in No. 95-1933.

Lawrence Rosenthal (argued), Benna R. Solomon, Andrew S. Mine, Anne K. Berleman, Susan S. Sher, Office of the Corp Counsel, Appeals Division, Chicago, IL, for Richard M. Daley, Glen E. Carr, Kelly Welsh, Robert Joyce, Leroy Martin, Gerald Cooper, Hubert W. Holton in No. 95-1932.

Lawrence Rosenthal (argued), Benna R. Solomon, Anne K. Berleman, Susan S. Sher, Office of the Corp. Counsel, Appeals Division, Chicago, IL, for Edward Brooks in Nos. 95-1932, 95-1933, and Leroy Martin, Gerald Cooper, Hubert W. Holton, Kelly Welsh in No. 95-1933.

Patricia M. Carroll-Smit, Office of the Corp. Counsel, Chicago, IL, Lawrence Rosenthal (argued), Jay M. Kertez, Mary F. Harkenrider, Benna R. Solomon, Anne K. Berleman, Susan S. Sher, Office of the Corp. Counsel, Appeals Division, Chicago, IL, for Genn Carr in No. 95-1933.

Stephen B. Horwitz (argued), Jacobs, Burns, Sugarman, Orlove & Stanton, Chicago, IL, for William R. Reynolds, Bernard Kelly, Paul D. Lewis, John Halpin, Francis P. McCarthy, Thomas M. Whalen, Earl W. Zuelke, Jr., Harold T. Denis, Thomas J. Spanos, Vincent M. Russo, Thomas F. Keane, Michael P. Atkins, Donald F. McGuire, Dennis Banahan, Francis J. Bickham, Robert S. Dennewitz, Stephen L. Kuhn, Maurice P. Sullivan, John P. Valaitis, James Lane in No. 95-1934.

Lawrence Rosenthal (argued), Jay M. Kertez, Mary F. Harkenrider, Benna R. Solomon, Anne K. Berleman, Susan S. Sher, Office of the Corp. Counsel, Appeals Division, Chicago, IL, for Leroy Martin and Glen E. Carr in No. 95-1934.

Before BAUER, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Although this case indirectly relates to the long-standing dispute about the process by which the Chicago Police Department (CPD) handled promotions in 1990, the direct question presented is whether the City officials before us were entitled to qualified immunity for the decisions they made at that time. The district court thought not, in light of the Supreme Court's decision in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), which imposed stricter requirements on "affirmative action" plans than had existed theretofore. We find, however, that the law in this area was sufficiently unsettled at that time that one cannot conclude that the City officials violated clearly established statutory or constitutional rights of which a reasonable person would have known. See Behrens v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 838, 133 L.Ed.2d 773 (1996). Accordingly, we reverse the district court's decision.

I

Because our decision turns on the state of the law rather than the particular facts of the underlying litigation, we offer here only a summary of those proceedings. The story begins with Judge Prentice Marshall's 1973 injunction against the City, requiring it to refrain from using any promotional procedure, test, or standard that had an adverse impact on the promotion of African-Americans, Latinos, or women. Over the following years, the City worked to develop tests and procedures that would implement this command. In 1984, however, Judge Marshall ruled that the City's 1977 police lieutenant's promotional examination flunked the test because it had a disparate impact on African-American officers and there was no business necessity to justify promotions made in rank order from a list based on those exam results. He ordered the City to design a new lieutenant's promotional exam, to "equalize" promotions, and to award back pay in some circumstances. This Court affirmed that ruling in Bigby v. City of Chicago, 766 F.2d 1053 (7th Cir.1985).

As the district court had ordered, the parties went back to the drawing board and created a new examination, which had three parts: (1) a multiple choice section, used as a preliminary screening device, (2) written short answers, and (3) an oral interview. This new exam was administered to lieutenant applicants in 1987. After reviewing the results from the first two sections of the exam, the Bigby parties concluded that African-American and Latino officers continued to be adversely affected. They ordered a statistical analysis, which revealed significant variations in the candidates' scores based on the race of the officer taking the examination and the race of the rater who scored it. Based on the Bigby order and this analysis, the officials responsible for the test decided to standardize the scores to take into account the difference in raters and applicant race. Roughly, this meant creating a relative score for each of the two groups (minorities and whites) that took into account raw scores, means, and dispersion of scores around the means, and then plugging that relative score back into a unified list. After completing that process, the parties drew up the 1987 promotional list, which Judge Marshall approved. In 1988, the City and police officials made 116 promotions to the rank of lieutenant from the approved 1987 list.

In 1990, the City and police department officials decided to take matters several steps further. They reviewed the rank of lieutenant to find out how many minority officers were included and compared that number to the percentage of minority officers in the rank below (sergeant), which was the group eligible for promotion. Again, the review showed that there was a statistically significant disparity between the two groups (i.e. fewer minority lieutenants than the sergeant numbers would suggest). The City officials decided to address the matter by making promotions out of rank order, with a goal of making minority promotions at a rate of 20 percent over the percentage of minority officers eligible for promotion. In 1990, using this system, 32 sergeants were promoted in rank order to the rank of lieutenant, and four were promoted out of rank order. After a similar analysis, the City officials decided to take the same approach to promotions from lieutenant to captain. They made 19 promotions to captain, of which 16 were in rank order and three were out of rank order.

II

The City's efforts to increase minority representation among the lieutenant and captain ranks led in 1990 to lawsuits by three groups of plaintiffs, each alleging that the civil rights of white candidates for promotion had been violated by the various measures described here. The plaintiffs brought suit pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986 alleging violations of the Equal Protection and Due Process Clauses of the 14th Amendment, as well as various state laws. In Erwin v. City of Chicago, the plaintiffs included approximately 220 sergeants who took the 1987 police lieutenant examination. In Deloughery v. City of Chicago, the plaintiffs were white lieutenants who took the 1987 police captain examination. In Reynolds v. City of Chicago, the plaintiffs were a separate group of white sergeants and lieutenants who took the 1987 police lieutenant and captain examinations. All three plaintiff groups brought suit against the City and various officials. On January 31, 1991, the district court consolidated the three cases for purposes of pre-trial proceedings.

The defendants raised the defense of qualified immunity by motion in both Erwin and Deloughery, but by an order of July 3, 1991, the district court rejected it on the theory that it was not ripe for decision. The court dismissed all claims in Erwin except for the plaintiffs' equal protection theory, under 42 U.S.C. § 1983, and it dismissed the state law claim in Deloughery, again allowing the equal protection claim to stand against the defendants in their individual capacities. On July 7, 1994, the officials who were sued individually in Erwin, Deloughery, and Reynolds filed a motion for summary judgment, once again raising the qualified immunity defense. The district court granted the motion with regard to all three cases on August 10, 1994, but the officials' victory was short-lived with respect to the 1990 promotions. On November 28, 1994, in response to the plaintiffs' motion to reconsider, the district court vacated its August 10th order. On January 23, 1995 the court issued an opinion granting summary judgment on qualified immunity grounds for the defendants with respect to the 1988 promotions and denying summary judgment for the 1990 promotions.

The key difference between the two, the court reasoned, was the Supreme Court's 1989 decision in Croson. The judge concluded that the record did not contain "enough factual evidence for us to independently determine that [the City officials] complied with Croson to be entitled to qualified immunity." On March 21, 1995, the court denied the defendants' motion to reconsider. This appeal followed, on behalf of Mayor Richard M. Daley, Glenn Carr (Commissioner of the City Department of Personnel), Robert Joyce (Deputy Commissioner of the Department of Personnel), LeRoy Martin (former Superintendent...