Brown v. City of Chicago (8 F. Supp. 2d 1095, 1998)

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

I. INTRODUCTION

Did the defendant City of Chicago (“City”) discriminate against minority Chicago police sergeants when it decided to make promotions to the rank of lieutenant based on an examination which the City developed with the acknowledged intention of avoiding an adverse impact on minorities? This case continues a series of attacks on successive attempts by the City to make police promotions based on criteria that would pass muster in the courts.

Plaintiffs are 44'minority (African-American and Latino) Chicago Police Department (“CPD”) sergeants who took the 1994 lieutenant examination and were not promoted based on their scores. They claim that the City deprived them of equal employment opportunity in violation of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, et seq. In light of the City’s stipulation that the examination had an adverse impact on minority candidates, plaintiffs contend that, (a) the City has not met its burden of proving that the examination was a job related, content valid selection device, and (b) even if the test were valid, plaintiffs have demonstrated there was an equally valid, less discriminatory alternative selection method available which the City refused to use.

The case was tried to the court in November 1997. Extensive expert testimony and other evidence was presented. Thereafter, the parties submitted voluminous post-trial briefs and proposed findings and conclusions, and argued the matter to the court on March 6, 1998. Finally, on March 31, 1998, the parties submitted supplemental memoranda on the issue whether there existed an available, less discriminatory selection method than the rank order test. For the reasons set forth below, the court finds that the examination was content valid, but that the City had available a less discriminatory equally valid method of promotion utilizing merit selection along with rank order promotions.

II. LEGAL STANDARDS

In a Title VII case alleging discrimination in the promotion process, once the plaintiff proves a prima facie case by showing that the promotional method had an adverse impact on minorities — as.is stipulated in the instant case — the burden shifts to the employer to prove that the test is valid. If the employer meets this burden, the plaintiff must. prove that there was an available, equally valid, less discriminatory method for promotion that the employer refused to use. Albemarle Paper v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Thus, the first issue presented is whether the City met its burden of proving that the test was valid, or “job related.” Id.; 42 U.S.C. § 2000e-2(k)(l)(A).

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme. Court held that the employer must demonstrate that the test has “a manifest relationship to the employment in question” that reasonably measures job performance. Id. at 432, 436, 91 S.Ct. 849. “A test is job related if it measures traits that are significantly related to the applicant’s ability to perform the job.” Gillespie v. State of Wisconsin, 771 F.2d 1035, 1040 (7th Cir.1985) (citing Griggs).

The Equal Employment Opportunity Commission (“EEOC”) has promulgated Uniform Guidelines on Employee Selection Procedures (“EEOC Guidelines”), 29 C.F.R. § 1607, et seq., which draw upon current psychological literature on psychometrics as well as standards for test validation established by the American Psychological Association. Gillespie, 771 F.2d at 1040. Under the EEOC Guidelines (§ 1607.5B), an employment test may be validated under any one of three methods: criterion related; content validity; or construct validity. No one method is preferred; any of the three may be used by the employer to establish validity and shift the burden back to the employee.

In Gillespie (Id. at n. 3), Judge Coffey succinctly described these three methods:

A criterion-related validation study determines whether the test is adequately correlated with the applicant’s future job performance. Wollack, Content Validity: Its Legal and Psychometric Bases, Personnel Management, Nov-Dec 1976, 397 at 402 (hereinafter “Wollack”). Criterion-related tests are constructed to measure certain traits or characteristics thought to be relevant to future job performance. Id. at 403. An' example of an employment test that would be validated by the criterion-related validation method is an intelligence test. The content validation strategy is utilized when a test purports to measure existing job skills, knowledge or behaviors. Id. “The purpose of content validity is to show that the test measures the job or adequately reflects the skills or knowledge required by the job.” Id. For example, a typing test given to prospective typists would be validated by the content validation method. Construct validity is used to determine the extent to which a test may be said to measure a theoretical construct or trait. Anastasi, Psychological Testing, 144 (1982) (hereinafter “Anasta-si”). For example, if a psychologist gave vocabulary, analogies, opposites and sentence completion tests to a group of subjects and found that the tests have a high correlation with one another, he might infer the presence of a construct — a verbal comprehension factor. Anastasi at 146.

In the instant case, the City has sought to establish the validity of the 1994 lieutenants’ examination by showing that the test was content valid. Section 1607.14(C)(4) of the EEOC Guidelines provides:

[T]o be content valid, a selection procedure measuring a skill or ability should either closely approximate an observable work behavior, or its product should closely approximate an observable work product. If a test purports to sample a work behavior or to provide a sample of a work product, the manner and setting of the selection procedure and its level and complexity should closely approximate the work situation. The closer the content and the context of the selection procedure are to work samples or work behaviors, the stronger is the basis for showing content validity. As the content of the selection procedure less resembles a work behavior, or the setting and manner of the administration of the selection procedure less resemble the work situation, or the result less resembles the work product, the less likely the selection procedure is to be content valid, and the greater the need for other evidence of validity.

In determining whether an employment test is content valid, the court in Gillespie (771 F.2d at 1043) held that,

... the court must evaluate the test for: (1) the degree to which the nature of the examination procedure approximates the job conditions; (2) whether the test measures abstract or concrete qualities; and (3) the combination of these factors, i.e. whether the test attempts to measure an abstract trait with a test that fails to closely approximate the working situation. [Citing Guardians Ass’n of New York City v. Civil Service Commission, 630 F.2d 79, 93 (2d Cir.1980); Wollack at 405.06.]

Should the employer meet its burden of proving validity, the statute provides that the employee can succeed if he or she proves that there was an available, equally valid, less discriminatory method of promotion that the employer refused to use. 42 U.S.C. § 2000e-2(k)(l)(A)(ii). In such an event, the plaintiffs would be entitled to injunctive and affirmative relief. Franks v. Bowman Transp. Co., 424 U.S. 747, 770, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), Sheet Metal Workers v. EEOC, 478 U.S. 421, 448, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986).

III. THE PARTIES’ CONTENTIONS

Before addressing the facts and the application of the facts to the law, it is useful to understand the basic positions of the parties. Plaintiffs’ argument rests to a large extent on a syllogism:

(a) The results of the 1994 lieutenants’ examination had a gross adverse impact on minority applicants;

(b) Minorities as a group are as equally qualified as whites to be Chicago Police Department lieutenants;

(c) Therefore, the examination is, perforce, invalid because it eliminated applicants who were admittedly qualified.

The City defends its examination as content valid, claiming that it was designed to and did in fact measure knowledge, skills and abilities (“KSAs”) required for the job of police lieutenant. Once having established that, the City contends that it need not explain why the test might have resulted in the failure to promote qualified applicants (a criterion-related method of proving validity that need not be employed once content validity is established).

Plaintiffs’ argument that there was an available, equally valid, less discriminatory method of promotion that the City refused to use, relies on the City’s own attempt to adopt a proposal to promote 20% of lieutenants based on a merit selection system rather than solely on the 1994 examination. The City argues (1) (without much conviction) that this method was not equally valid, and (2) (which much conviction) that even if it were equally valid, the addition of a merit selection component to promotions wg.s unavailable because the state courts enjoined the City from using that method.

IV. THE FACTS

A. Agreed Facts

The following facts have been stipulated to by the parties, and, with certain stylistic changes, are hereby adopted by the court:

1. This case involves the 1994 lieutenants’ promotional test prepared for the Chicago Police Department.

2. Plaintiffs are 44 African-American or Latino present or former members of the Chicago Police Department who hold the career service rank of sergeant and participated in the 1994 lieutenant promotional examination.

3. Plaintiffs have not been promoted to the rank of police lieutenant based on the results of the 1994 Chicago police lieutenant examination.

4. On March 28, 1995, plaintiffs filed a complaint in this action challenging the 1994 Chicago police lieutenant examination process under 42 U.S.C. § 1981 and 42 U.S.C. § 1983. On December 5,1995, plaintiffs filed their First Amended Complaint, adding a Title VII disparate impact claim. On February 9, 1996 plaintiffs abandoned their 1981 and 1983 claims.

5. Plaintiffs contend that the test has a disparate impact upon African-American and Hispanic police sergeants and is an unlawful employment practice under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e.

6. Plaintiffs do not claim that the City intentionally discriminated against plaintiffs or subjected them to disparate treatment.

7. Defendant City of Chicago concedes that the test had a disparate impact on African-American and Hispanic sergeants and contends that the test is job related and consistent with business necessity.

8. The 1994 lieutenants’ test.was taken by 765 police sergeants: 184 (or 24%) of those who took the test were African-American; 55 (or 7%) were Hispanic.

9. The City has made 108 promotions from the list. Six of those promotions (or slightly less than 6%) of those promotions have gone to minorities (5 of those promoted are African-American and 1 is Hispanic).

10. The parties agree that the statistical evidence makes out a prima facie case of disparate impact discrimination.

11. The 1994 promotional test consists of three subtests which shall be referred to in this order as follows: a written job knowledge test, an in-basket simulation, and an oral briefing exercise.

12. Scores on each component were combined to produce a final score.

13. Each component of the test had a disparate impact on minorities:

a. White sergeants received 193 of the top 207, 282 of the top 316, and 350 of the top 413 scores on the job knowledge test,

b. White sergeants received 181 of the top 203, 271 of the top 313, and 356 of the top 442 scores on the in-basket simulation.

c. White sergeants received 171 of the top 195, 303 of the top 383, and 412 of the top 540 scores on the oral briefing exercise.

d. White sergeants received 102 of the top 108 scores.

14. The parties agree that the statistical evidence makes out a prima facie case of disparate impact discrimination for each component of the 1994 lieutenant’s test.

15. The CPD has promulgated a comprehensive set of departmental directives which establish CPD policy and procedure.

16. General Orders set forth CPD policy. A full set of the CPD General Orders that were in effect as of the date of the 1994 Chicago police lieutenant examination is contained in Defendant’s Exhibit 7, which is in evidence.

17. Special Orders set forth CPD procedures. A full set of the CPD Special Orders that were in effect as of the date of the 1994 Chicago police lieutenant examination is contained in Defendant’s Exhibit 8, which is in evidence.

18. Police actions are also governed by the criminal statutes of the State of Illinois and the City’s Municipal Code.

19. All probationary officers are trained on the General Orders, Special Orders and Illinois criminal statutes upon hire.

20. There are four career service ranks in the CPD: police officer, sergeant, lieutenant and captain. Police officers are supervised by sergeants. Sergeants are supervised by lieutenants.

21. Lieutenants are promoted from the rank of sergeant.

22. At the time of trial, there were approximately 252 lieutenants in the CPD.

23. Prior to assuming the position of lieutenant, newly promoted lieutenants participate in a two-week pre-service training session. The training program exposes new lieutenants to management techniques, executive development issues and personnel issues.

24. The CPD is comprised of five bureaus: administrative, technical, staff services, operational services and investigative sendees. The operational services bureau is a field unit that includes the CPD Patrol Division.

25. The majority of newly promoted lieutenants are assigned to the Patrol Division.

26. District Law Enforcement, part of the CPD Patrol Division, is responsible for day-to-day law enforcement for the City of Chicago. It is comprised of 25 districts located throughout Chicago.

27. In each of the 25 districts, there is a district commander who is responsible for overall district operations.

28. Operations in each police district are divided into three hour shifts, called “watches.” District operations during each watch are supervised by a “watch commander.” The position of watch commander is held by an officer with the rank of lieutenant or captain.

Because the CPD is phasing out the rank of captain, the watch commander job is now performed more and more by lieutenants. There is no difference between what a captain does as a watch commander and what a lieutenant does as a watch commander.

29. As watch commander, the lieutenant is responsible for all activities that occur on a given shift in a district. These duties include overseeing the arrest, booking and bonding process, scheduling and assigning officers, conducting roll calls, inspecting personnel and equipment, conducting training, conducting facility inspections, supervising personnel assigned to district administrative activities, reviewing and approving all arrest reports and complaints, directing and reviewing disciplinary investigations of CPD personnel, monitoring the lockup, and personally responding to and assuming command at major criminal incidents occurring within the geographic confínes of the district.

30. At the start of the shift, the watch commander meets with the watch commander from the previous shift to discuss any problems or issues that may be relevant to his or her tour of duty.

31. The watch commander reviews the commanding officer’s book (“CO book”) and any other paperwork or communications from the preceding watch commander, the district commander or any command member of the CPD to ascertain specific duties and responsibilities for his or her shift.

32. The watch commander inspects the district facility and the lockup facility to ensure the health and safety of all persons in CPD custody and to ensure compliance with applicable laws, rules and regulations. The watch commander also checks on the status of arrestee processing and the length of all detainments, and determines whether any prisoners remain who have yet to be released on bond.

33. The watch commander may review supervisor logs.

34. The watch commander may examine the manpower schedules. The watch commander is also responsible for adjusting work schedules in response to unanticipated absences.

35. • Manpower scheduling is governed by specific CPD directives and by the collective bargaining agreement between the City and the police union, the Fraternal Order of Police (“FOP”) (the “FOP contract”).

36. There are at least two roll calls during each shift. During roll call, the officer conducting roll call conducts an inspection of all personnel. Once a week, the officer conducting roll call conducts a weapons and ammunition inspection of all personnel. During roll call, officers and supervisors receive their assignments for the shift. The officer conducting roll call reviews the CO book and notifies officers of court appearances, special work assignments or other items of interest contained therein. The officer conducting roll call also periodically provides roll call training during which training bulletins, new General Orders and Special Orders are reviewed and discussed with subordinates.

37. The watch commander also attends to various administrative duties.

38. The watch commander is responsible for reviewing and signing off on all overtime requests and authorizations.

39. The watch commander has the responsibility to réview time due slips.

40. The watch commander conducts and/or oversees weapons discharge investigations concerning incidents in which a police officer' has discharged his weapon or has been fired upon. The watch commander retains the responsibility for the investigation through any subsequent formal investigation if any person has been struck by a shot from an officer’s weapon.

The watch commander is responsible for ensuring that the crime scene is protected, that proper notifications have been made, that injured persons have received medical attention, that all weapons discharge reports have been prepared, and that proper disciplinary procedures are implemented.

41. If an officer is injured on duty, the watch commander is required to review the injury-on-duty report that, is prepared by the investigating supervisor.

42. The watch commander reviews activity reports prepared by subordinate officers.

43. The watch commander reviews case reports prepared by subordinate officers.

44. The watch commander reviews and approves summary punishment action requests (“SPAR”) for subordinate officers. The SPAR system is an expedited disciplinary process for less serious transgressions by officers (e.g., traffic accidents, tardiness, failure to appear in court).

' 45. The watch commander reviews complaint register (“CR”) investigations. CR investigations are initiated when officers are alleged to have committed more serious transgressions (e.g., use of excessive force, verbal abuse, failure to provide service), and may'-result in discipline of the officers up to and including discharge.

46. The watch commander reviews arrest reports prepared by subordinate officers.

Arrest reports are-reviewed to ensure that they are complete, that charges are justified by the narratives provided by the officer, that there is probable cause to support the charges, that proper notifications have been made, and that arrestees who are eligible for bond are bonded out. Lieutenants must know the elements of crimes to make proper probable cause determinations.

47. The watch commander is responsible for ensuring that arrestee processing is done in compliance with CPD directives and orders.

48. The watch commander assigns officer counseling and other job duty assignments to sergeants.

49. The watch commander investigates incidents in which arrestees are hospitalized.

50. Throughout the shift, the watch commander monitors the activities in the district via the police radio. The watch commander is responsible for responding to and assuming command at major incidents (e.g., police shootings or hostage incidents).

51. The watch commander is required to tour the, district periodically in a police vehicle to provide a command presence.

52. The watch commander supervises the personnel assigned to the district facilities, including all desk personnel, desk sergeants and watch secretaries.

53. The office facilities of watch commanders differ from district to district.

54. The watch commander’s office is a focal point of many of the principal activities in the district. The watch commander’s office is particularly busy at the change of shifts, when officers are getting their notifications.

55. While overall patrol operations for each district are supervised by a watch commander, field operations during each watch are supervised by field lieutenants. Field lieutenants directly supervise the sergeants in the field.

56. Field lieutenants are responsible for all field operations. They attend roll call, assist the watch commander in the inspection process and roll call training process, monitor, supervise and counsel sergeants and police officers, review forms and reports submitted by police officers and sergeants, ensure compliance with police policy and procedures while personally responding to major incidents in the field, investigate actions of police officers, conduct investigations of licensed premises, ensure overall compliance with the FOP contract and supervise check off roll call.

57. After roll call, the field lieutenant goes out into the district in an assigned police vehicle and supervises all field activities during the shift. Police vehicles are rotated among lieutenants from shift to shift. At the end of a shift, the -field lieutenant turns the vehicle over to the lieutenant on the next shift who, in turn, turns the vehicle over to the lieutenant for the. next shift.

58. Field lieutenants conduct investigations of weapons discharge incidents. As part of the investigation of an incident, the field lieutenant prepares a preliminary information weapons discharge worksheet and a weapons discharge report documenting the incident and investigation, and, if an officer is injured, an injury-on-duty report.

59. Field lieutenants may recommend summary punishment action requests for subordinate officers. Such recommending lieutenants investigate and submit SPARs, and review and approve SPARs initiated by subordinates.

60. Field lieutenants conduct CR investigations when a sergeant is the offending officer, and review CR investigations conducted by sergeants regarding police officers. The investigation is a formal due process investigation in which the accused has right to counsel. The formal investigation involves consideration of prior disciplinary and complimentary history and penalty recommendations. The investigation file includes a “Complaint Against Department Member” form and an “Administrative Proceeding Rights” form (in a non-criminal matter).

61. Field lieutenants conduct or ensure thorough investigations of licensed premises (e.g., taverns or other liquor establishments in which incidents occur).

62. Field lieutenants also respond to calls for police service. Lieutenants respond to the scene of major incidents (e.g., homicide) and are responsible to coordinate police activity at the scene, to ensure that proper notifications have been made, to ensure preservation of the crime scene, to ensure safety and health of all individuals involved and to provide necessary information to supervise officers.

63. Lieutenants ensure that complete investigations are conducted regarding CPD members who are suspected of intoxication and drug use.

64. Lieutenants review reports prepared by police officers and sergeants including, but not limited to, arrest reports, case reports, injury-on-duty reports, activity reports, information reports and time due slips.

65. Lieutenants review search warrants, complaints for search warrants, and search warrant data forms to determine whether there is sufficient probable cause to justify the warrant, to ensure that the warrant is accurate, complete, signed and properly planned, and to ensure that proper notifications have been made and that the warrant has been submitted to the State’s Attorney’s office and the court.

66. The field lieutenant does not have an office. Field lieutenants work out of the police car assigned to them for a particular shift.

67. Starting in 1992, the CPD developed and implemented a new policing strategy known as the Chicago Alternative Policing Strategy, or CAPS. The CAPS style of policing represented a departure from the CPD’s incident-driven policing method, which focused on responding to service calls. The CAPS style relies upon a relationship between the CPD and members of the community to identify and solve problems in the community.

68. Under CAPS, police officers meet with community members to discuss problems of crime and disorder, prioritize the problems and develop strategies for addressing the problems. Based on these meetings, officers develop beat plans that chronicle specific criminal problems and strategies for response.

69. All 44 plaintiffs completed all three components of the 1994 Lieutenant examination. Their scores on each of the three components (the higher the number the better the score on each component) and their overall examination performance in relation to the 765 individuals who completed all three components of the examination (1 is the top scorer and 765 is lowest scorer) are as follows:

Name written oral in-basket final rank

Brown, Ernest T 95 11 49 541

Bryant, Lloyd E 92 8 35 750

Butler, Desmond J 87 12 43 616

Byrd, Doris M 106 13 47 354

Carpenter, Reginald 57 13 37 719

Cole, Louis C 112 11 46 461

Crump, Henry E 96 12 33 670

Davis, Theodore R 105 7 35 740

Day, Sandra K 107 12 46 429

Eaglin, Paul R 90 8 38 740

Grayer, Mary A 106 15 44 258

Hardy, Judge F 111 14 35 448

in-basket written final rank oral Name

48 112 429 11 Hargrove, Larry

97 282 14 Harper, Juana J

89 587 12 Harris, Samuel E

95 535 12 Hicks, Eddie C

101 398 13 Jackson, Prentiss E t-

92 662 12 James, William M

89 735 9 Johnson, Forest L

99 475 12 Kimber, Vance T -3

112 611 9 Lewis Jr, Chris

113 543 12 Love, Robert A CO CO

112 330 13 Mastín, Barry icr

38 657 10 Me Caster, Maurice L o

31 749 11 Mial, Paul D

31 699 13 Moran Jr, Reyes P oo to

44 576 13 Morgan, Cheriff A