Petit v. City of Chicago, 90 C 4984.

• Decision Date: 23 October 2002
• Docket Number: No. 90 C 4984.,90 C 4984.
• Citation: 239 F.Supp.2d 761
• Parties: Robert PETIT, et al., Plaintiffs, v. CITY OF CHICAGO, a municipal corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

239 F.Supp.2d 761

Robert PETIT, et al., Plaintiffs, v. CITY OF CHICAGO, a municipal corporation, Defendant.

No. 90 C 4984.

United States District Court, N.D. Illinois, Eastern Division.

October 23, 2002.

Order Denying Motion to Amend Nov. 14, 2002.

COPYRIGHT MATERIAL OMITTED

Kimberly A. Sutherland, Chicago, IL, for Plaintiffs.

Kelly Raymond Welsh, Mary Catherine Cox, Michael A. Forti, Amy Renee Skaggs, Andrew S. Mine, Jay Michael Kertez, Laure Ann Mullaney, City of Chicago, Law Dept., Chicago, IL, Sarah Vanderwicken, Chicago Lawyers' Committee for Civil Rights, Chicago, IL, Adrienne L. Hiegel, Mayer, Brown, Rowe & Maw, Chicago, IL, J. Paula Roderick, Earl L. Neal & Associates, Chicago, IL, Peter Scott Rukin, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

I. PROCEDURAL BACKGROUND

This lawsuit involves promotions within the Chicago Police Department ("CPD") and plaintiffs' allegations that White police officers were discriminated against during the process. The promotions at issue were based on a sergeant promotional examination administered from 1985 to 1988 (the "Examination").¹ Scoring of the Examination was adjusted based on race² so that each racial group would be represented in the top 500 candidates expected to be hired in approximately the same percentage as they were in the entire candidate pool (the "Score Adjustments"). Also, some Hispanics were promoted outside the rank order of the adjusted scores on the Examination (the "Out-of-Rank Promotions").³ The promotions to the rank of sergeant based on the Examination occurred on five "Promotion Dates": December 16, 1988, July 16, 1990, November 16, 1990, February 8, 1991, and September 16, 1991. See generally Petit v. City of Chicago, 31 F.Supp.2d 604, 608-10 (N.D.Ill. 1998).⁴

When this case went to trial in January 2002, there were 82 remaining plaintiffs⁵ and the only remaining defendant⁶ was the City of Chicago.⁷ It was undisputed that defendant had adjusted the Examination scores of African-American and Hispanic candidates in a manner favorable to those candidates and that defendant also provided Out-of-Rank Promotions to Hispanics. See Jury Instr. [330] 17 ("Defendant does not dispute that it took race and national origin into account when promoting patrol officers to sergeant."). See also Petit II, 31 F.Supp.2d at 608-10 (undisputed facts on summary judgment). Defendant contended that this intentional use of racial criteria was justified by three compelling interests: (a) remedying the effects at the sergeant rank of prior CPD discrimination in hiring and promotion (the "Discriminatory Effects Interest"); (b) avoiding an adverse impact violation of Title VII of the Civil Rights Act of 1964 (the "Adverse Impact Interest"); and (c) the CPD's operational need to have a diverse work force at the sergeant rank (the "Operational Need Interest"). Defendant also contended that these interests in combination (the "Combined Compelling Interest") constituted a compelling interest and that the "Selection Preferences" employed were narrowly tailored to the compelling interests. See Jury Instr. [330] 17-18.

These issues of liability⁸ were tried to the jury. The jury was to decide as to each Promotion Date, each Identified Group, and each type of Selection Preference, whether each compelling interest existed and, if so, whether the Selection Preference was narrowly tailored. See id. at 22, Verdict Form. As to most every issue, however, the jury was unable to reach a unanimous verdict and a mistrial was ultimately declared. The jury did unanimously agree and return a verdict as to the Discriminatory Effects Interest for the promotion of Hispanics on all five Promotion Dates. The jury found that that interest had been proven to exist, but did not make a unanimous finding as to whether any of the Score Adjustments or Out-of-Rank Promotions of Hispanics were narrowly tailored to that interest.

At the close of the evidence, plaintiffs moved for judgment as a matter of law on the ground that a collective bargaining agreement between the CPD and FOP (the "CBA") (see PI. Exh. 3, Def. Exh. 59) required that the CPD make promotions without regard to race. Tr. Vol. VIII 163-64 (Jan. 29, 2002). Defendant argued that the issue was waived because not previously raised during the litigation. Id. at 164-65. Plaintiffs' motion was denied. Id. at 165. At the same time, defendant moved for judgment as a matter of law based on each of its asserted compelling interests. Id. at 165-72. Ruling on defendant's motion was reserved. Id. at 172.

On February 6, 2002, a mistrial was declared and the jury discharged. The order declaring the mistrial and the filing of the verdict form were both entered on the docket on February 11, 2002. See Docket Entries 331, 333. On February 15, pursuant to Fed.R.Civ.P. 50(b), defendant moved for entry of judgment as a matter of law [335] and, on February 20, plaintiffs filed their motion for judgment as a matter of law [336]. Defendant thereafter moved to strike all aspects of plaintiffs' motion other than the argument based on the CBA, contending that the additional arguments were waived because not raised in the motion made at the close of evidence [339]. The following order was thereafter entered:

Defendant City of Chicago's motion to strike Part II of plaintiffs' motion for judgment as a matter of law is denied without prejudice. To the extent defendant successfully argues that plaintiffs have waived the opportunity for a Rule 50(b) motion, plaintiffs' motion for judgment as a matter of law will be treated as a Rule 56 motion for summary judgment. The parties will not be required to file any Local Rule 56.1 statements, but they must provide adequate citations to the record in support of their factual assertions.

Order dated Feb. 26, 2002[340].

As was clarified in part at a subsequent hearing on defendant's motion for reconsideration, see March 13, 2002 Tr., the parties are entitled to a ruling on their Rule 50 motions for judgment as a matter of law based on the trial record. To the extent all claims can be finally resolved on defendant's motion, judgment will be entered to that effect and the case is over in the district court. To the extent plaintiffs' motion was to be granted as to all compelling interests, damages would remain to be resolved, but the issue of liability would be resolved in the district court. However, to the extent that no claims or only some of the claims can be resolved on the Rule 50 motions, the case would remain open in the district court and it would still be possible and appropriate to consider summary judgment motions. That is why the motions will be considered as summary judgment motions to the extent they raise issues not properly preserved for a Rule 50 motion or rely on evidence not presented at trial. Also, as was previously stated in court, even if the case can be resolved on one of the Rule 50 motions, the summary judgment issues will still be resolved so that there will be a complete record in the event any otherwise dispositive ruling is overturned or modified on appeal. Cf. Fed.R.Civ.P. 50(c)(1).

II. RULE 50 MOTIONS

A. Rule 50 Standards

Rule 50(a)(2) of the Federal Rules of Civil Procedure provides: "Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." If a Rule 50(a) motion made at the close of all the evidence is not granted, the movant may renew the motion within ten days after the entry of judgment. Fed.R.Civ.P. 50(b).⁹ If no verdict was returned, the court may order a new trial or direct entry of judgment as a matter of law. Id. 50(b)(2). It is clear that a timely Rule 50(b) motion on issues that have been adequately preserved may and should be considered even though a mistrial has been declared. Evanston Hospital Corp. v. Astra Pharmaceutical Products, Inc., 1992 WL 220607 *1 (N.D.IU. Sept.3, 1992); Bostron v. Apfel, 104 F.Supp.2d 548, 551 (D.Md.2000), affd by unpublished order, 2 Fed.Appx. 235 (4th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 218, 151 L.Ed.2d 155 (2001); Stokes v. Children's Hospital, Inc., 805 F.Supp. 79, 80 (D.D.C.1992), aff'd by unpublished order, 36 F.3d 127 (D.C.Cir.1994); Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2537 at 162 (2d ed. 2002 Supp.). Also, to the extent the case cannot be resolved on the Rule 50(b) motions, it is appropriate to consider summary judgment. See Ross v. Hotel Employees & Restaurant Employees International Union, 266 F.3d 236, 243 (3d Cir. 2001), cert, denied, 534 U.S. 1162,122 S.Ct. 1172,152 L.Ed.2d 116 (2002).

Under the plain language of Rule 50(b), a Rule 50(a) motion for judgment as a matter of law must be made at the close of the evidence in order to be able to bring a posttrial Rule 50(b) motion for judgment as a matter of law. Laborers' Pension Fund v. A & C Environmental, Inc., 301 F.3d 768, 775-76 (7th Cir.2002); Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1364 (7th Cir.1996). Rule 50(a)(2) also requires that the motion "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Thus, it is also the rule that issues that were not adequately preserved in a Rule 50(a) motion made at the close of evidence may not be included in a Rule 50(b) motion. A & C Environmental, 301 F.3d at 777-78; McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1555-56 (7th Cir.1987); Rankin v. Evans, 133 F.3d 1425, 1431 (11th Cir.), cert, denied, 525 U.S. 823, 119 S.Ct. 67, 142 L.Ed.2d 52 (1998); Advisory Committee Notes to the 1991 Amendments to Rule 50(b). However, these waiver rules must be considered in light of Rule 50(b)'s purpose of requiring that a motion for judgment as a matter of law be made after the submission of all the evidence, but...