McNamara v. City of Chicago
| Decision Date | 02 November 1994 |
| Docket Number | No. 93 C 1098.,93 C 1098. |
| Citation | 867 F. Supp. 739 |
| Parties | James A. McNAMARA, John J. Sullivan, Thomas R. Miller, Charles W. Lux, William T. King, Charles E. Dineen, Richard A. Graf, Henry T. Scavone and Paul B. Sobczak, Plaintiffs, v. CITY OF CHICAGO, a municipal corporation, Richard M. Daley, Raymond E. Orozco, Donald J. Stensland and Glenn Carr, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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Kimberly Ann Sutherland, Chicago, IL, for plaintiffs.
J. Paula Roderick, Kelly Raymond Welsh, Jay Michael Kertez, Shona B. Glink, City of Chicago Law Dept., Corp. Counsel, Chicago, IL, for defendants.
James A. McNamara, John J. Sullivan, Thomas R. Miller, Charles W. Lux, William T. King, Charles E. Dineen, Richard A. Graf, Henry T. Scavone, and Paul B. Sobczak ("the plaintiffs") sue the City of Chicago ("the city"), Mayor Richard M. Daley, Fire Commissioner Raymond E. Orozco, former Deputy Fire Commissioner Donald J. Stensland, and Personnel Commissioner Glenn Carr ("the individual defendants") for violations of 42 U.S.C. §§ 1981, 1983, and 2000e (Title VII).1 The plaintiffs are white firefighters employed by the Chicago Fire Department who allege that they are victims of the fire department's affirmative action policies. On August 31, 1994, this court granted the defendants' motion for summary judgment on the issue of qualified immunity and dismissed all of the individual defendants. At the same time, the court denied the plaintiffs' motion for summary judgment on the issue of "liability." See August 31, 1994 Memorandum Opinion and Order, No. 93-1098. Presently before the court are the plaintiffs' motion to reconsider each of the August 31st rulings, as well as the defendants' motion for summary judgment on the Title VII and section 1981 claims.
The Chicago Fire Department's ("CFD") non-exempt fire suppression ranks proceed in the following ascending order of promotion: firefighter, engineer, lieutenant, captain, and battalion chief. This case involves the step between lieutenant and captain. In the early 1970's, the CFD was dominated by white males. Galante Aff. ¶ 3. High ranking CFD officials later attributed this to discrimination in hiring, interim appointments of white firefighters to higher positions, and special training opportunities for white firefighters. Id. In 1973, the Department of Justice brought suit against the city, alleging that the fire department's hiring and promotional practices discriminated unlawfully against blacks and Hispanics. Cole Aff. ¶ 5. In 1974, the city entered into a consent decree with the United States. The consent decree established an interim 50 percent hiring ratio and a long-term goal to increase substantially the black and Hispanic composition of the CFD to reflect the black and Hispanic composition of the whole city. Id. at ¶ 7.
Notwithstanding the consent decree, the CFD black and Hispanic composition remained at only nine percent in September 1978. At that time, the CFD entered into a supplemental hiring order that allocated 120 of the next 280 vacancies to blacks or Hispanics. In 1979, the district court entered another hiring order. This order directed that the 50 percent minority hiring ratio should be maintained for the immediate future, and it retained the long-range goal of substantially increasing the minority composition of the CFD.
Although the priority was to hire blacks and Hispanics, CFD promotion practices were also at issue. The 1973 Department of Justice suit challenged the promotional tests and eligibility lists used by CFD in the 1960's and early 1970's. Cole Aff. ¶ 9. CFD administered new promotional examinations in 1978. Nevertheless, in 1980, the Department of Justice advised the city that it intended to file a new lawsuit challenging these examinations as having a severe adverse impact on minority candidates. Cole Aff. ¶¶ 11, 13. The results of the captains examination showed that whites outscored blacks on the written portion at a statistically significant level of more than three standard deviations. On the performance evaluation, a subjective component involving ratings by supervisors, whites fared better than blacks and Hispanics at a statistically significant level of four standard deviations. Soule Aff. ¶¶ 11(a), 11(b). Promotional examinations for other ranks showed even greater disparities; on the engineers and lieutenants examinations, for example, whites outscored blacks and Hispanics on the subjective performance evaluations at factors of 11 and 12 standard deviations respectively.2 Soule Aff. ¶¶ 4(b), 7(c). The city entered into another settlement agreement with the United States, this time addressing promotional practices. The city agreed to a long-term goal of increasing minority composition at each promotional rank to mirror the racial composition at the preceding rank. Def. 12(n) Ex. G.
In 1980, the city entered into a collective bargaining agreement with its firefighters. Section 9.3B of the agreement provides that promotions are "customarily" to be made in rank order, but that non-rank order promotions may be made to comply with affirmative action ordered by a court and in other enumerated circumstances. Def. 12(n) Ex. H, p. 15-16. This provision has twice been interpreted by arbitrators to permit non-rank order promotions for affirmative action purposes. Def. 12(n) Ex. J, K. Appendix G to the collective bargaining agreement requires the fire department to strive for as close to 45 percent minority representation in all ranks as is reasonably achievable and as quickly as reasonably possible. Def. 12(n) Ex. H, Appendix G.
The current plaintiffs enter the picture at this point. Because the 1979 captain eligibility list was becoming stale, and because CFD was unable to make significant progress in increasing the proportion of minority captains using that list,3 CFD decided to generate a new eligibility list. In 1986, CFD administered a new captains examination and used the results to create a new eligibility list for captains ("the 1987 list"). Eligibility required a passing score of 70. The examination was validated as being job related, but was not validated for strict rank order promotions. Joyce Aff. ¶¶ 10-22, 28. CFD expected to promote 150 individuals off the list over its three-year expected life. If strict rank order were used, 14 percent and 4.7 percent of the captain promotions would be black and Hispanic respectively. Def. 12(n) Ex. O. CFD, citing its consent decrees, the collective bargaining agreement, and its institutional belief that CFD's prior promotion practices were discriminatory, believed that its affirmative action obligations required it to do better. Def. 12(n) Ex. O. As a result, CFD decided to promote captains on an affirmative action basis so that 20 percent of those promoted to captain off the 1987 list would be black and five percent Hispanic. Id.
The plaintiffs are white lieutenants who took the 1986 captains examination, received passing scores, and achieved rankings on the 1987 list between 136 to 166. On May 1, 1991, the city made 12 promotions, bringing to 142 its total number of promotions off the 1987 list. Pl. 12(n) ¶ 14. The city promoted through rank 131 in sequence and promoted three black or Hispanic candidates below rank 131.4 Plaintiffs Graf (rank 136), Scavone (138), and Sobczak (139) would have been promoted on May 1, 1991 if the promotions had been made in strict rank order. The CFD made 18 more promotions on April 1, 1992, for a total of 160 promotions. Promotions on April 1 were made in rank order through rank 150. A grand total of 14 blacks and Hispanics on the 1987 list below rank 150 were promoted over the life of the list. Amended Compl. ¶ 14 & Ex. G. Because CFD partially digressed from strict rank order promotions, the remaining plaintiffs were not promoted by April 1, 1992: McNamara (rank 152), Sullivan (153), Miller (154), Lux (157), King (159), and Dineen (166).5
Every black and Hispanic lieutenant promoted out of rank order had passed the captains examination and was qualified to assume the rank of captain. Moreover, because the 1986 captains examination had a margin of error, scores differing by less than 7.5 points were insufficiently different by themselves to justify selection of one candidate over another. Barrett Aff. ¶¶ 9-12. In fact, the difference in scores between the last candidate promoted in strict rank order off the 1987 list (Ruhnke) and the last minority candidate promoted out of rank order (Rabiela) was less than seven points. Pl. 12(m) ¶ 62.
Affirmative action promotions off the 1987 list have been the subject of litigation previously. In Chicago Fire Fighters Union Local No. 2 v. Washington, 736 F.Supp. 923 (N.D.Ill.1990), white firefighters challenged the constitutionality of CFD's affirmative action policies. Judge Holderman considered the equal protection challenge, applied strict scrutiny, and granted summary judgment in favor of the defendants, thereby upholding the city's affirmative action policy. A divided appellate panel affirmed, holding that the plaintiffs presented no issue of fact contesting the city's position that its affirmative action policy was justified by the lingering effects of prior discrimination in the CFD. Billish v. Chicago, 962 F.2d 1269 (7th Cir. 1992). Nevertheless, the Seventh Circuit reheard the case en banc and, by a 5-4 vote, reversed the panel's decision. The court held that a trial was necessary to determine whether the city's affirmative action policy passed muster under strict scrutiny — that is, whether the city had a strong basis in evidence to conclude that there were lingering effects of discrimination in the CFD's higher ranks and whether the affirmative action plan was...
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