Finch v. City of Indianapolis (886 F. Supp. 2d 945, 2012)

United States District Court for the Southern District of Indiana 2012-08-10

Money and Finance The Public Health and Welfare

Citations

Full opinion text

Order on Cross-Motions for Summary Judgment

DEBRA McVICKER LYNCH, United States Magistrate Judge.

Introduction

Plaintiffs Joseph W. Finch, David E. Hensley, and Peter W. Mungovan are police officers employed by the Indianapolis Police Department (“IPD”) and later, its successor, the Indianapolis Metropolitan Police Department (“IMPD”). IMPD was created to consolidate the operations of IPD and the Marion County Sheriffs Department. In 2006, and just prior to the actual merging of substantially all the operations of IPD and the Sheriffs Department, IMPD promoted eleven police officers from lieutenant to the merit rank of captain. The plaintiffs contend that but for their Caucasian race, they would have been promoted. Their suit asserts claims for race discrimination under (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), (2) 42 U.S.C. § 1981, and (3) the equal protection clause of the Fourteenth Amendment, enforced via 42 U.S.C. § 1983. They also complain that the City of Indianapolis unlawfully retaliated against them in violation of Title VII for their filing of charges of race discrimination with the EEOC and their pursuit of rights under Title VII. See 42 U.S.C. § 2000e-3(a).

The parties have filed cross-motions for summary judgment. The defendants seek summary judgment on all claims, on various grounds. The plaintiffs seek summary judgment against the City of Indianapolis on their claims under Title VII and section 1983, and against all defendants sued in their individual capacities under section 1983.

Although the parties’ briefing tends to commingle the legal theories on which the plaintiffs’ claims are based, the court must untangle them for proper analysis and resolution. The plaintiffs have not responded to the defendants’ arguments challenging the viability of certain claims against certain defendants, and the court can dispose of those as a preliminary matter. For the analysis and resolution of some claims, a truncated recitation of undisputed material facts suffices, while for others — especially the claims against which a qualified immunity defense has been raised by individual defendants sued in their personal capacities — more detailed explication is necessary and the court will add those facts where necessary.

Preliminary Matters

As noted above, some claims will be addressed only briefly — and without recitation of facts — because the plaintiffs have failed to advance evidentiary or legal support for them.

I. All defendants except the City are entitled to summary judgment on the Title VII claims.

The plaintiffs’ complaint asserts Title VII claims — for race discrimination and for retaliation for complaining of race discrimination — against defendant City of Indianapolis. See Complaint, Dkt. 1, ¶¶ 33 and 34 (“Defendant City has discriminated against [plaintiffs] ... based upon their race ... in violation of ... Title VII ....”) and ¶¶ 36 and 37 (“Defendant City has discriminated against [plaintiffs] ... by retaliating against Plaintiffs because they filed charges of discrimination against the City with the EEOC and pursued their rights under Title VII .... ”).

Only “employers” are liable under Title VII. Fairley v. Fermaint, 482 F.3d 897, 903 (7th Cir.2007). The City of Indianapolis does not dispute that because IPD and its successor IMPD are City instrumentalities, the City of Indianapolis is properly regarded as the plaintiffs’ employer for Title VII purposes. But the plaintiffs’ brief suggests that the City and the Merit Board for the Metropolitan Law Enforcement Agency (“Merit Board”) are responsible for the claimed violations of Title VII (Dkt. 160 at p. 18). Their brief offers no argument or authority that the Merit Board and its members can be held separately liable to the plaintiffs under Title VII. Because the plaintiffs made no showing that the Merit Board or its members acted as the plaintiffs’ employer, the Merit Board and the Merit Board members in their official and individual capacities are entitled to judgment on any Title VII claims against them. See Thanongsinh v. Board of Education, 462 F.3d 762, 771 n. 7 (7th Cir.2006) (Title VII imposes liability against the “employer”; a claim against a person’s office is no different from a claim against the entity and is properly dismissed as duplicative).

Accordingly, the court GRANTS summary judgment to all defendants except the City of Indianapolis on the plaintiffs’ Title VII race discrimination and retaliation claims.

II. All defendants are entitled to summary judgment on the plaintiffs’ section 1981 claims.

Race discrimination in the terms of one’s employment is prohibited under 42 U.S.C. § 1981. See, e.g., Humphries v. CBOCS West, Inc., 474 F.3d 387, 391 (7th Cir.2007). With respect to section 1981, the plaintiffs’ complaint makes specific allegations regarding each individual defendant and charges all “defendants” with race discrimination in violation of section 1981. (Dkt. 1, ¶¶ 38-45). However, the plaintiffs have completely ignored the defendants’ summary judgment arguments addressed to the section 1981 claims. Though the plaintiffs identified as an issue for the court “Are Defendants entitled to summary judgment on Plaintiffs’ cause of action asserted under 42 U.S.C. § 1981?” (Dkt. 160, at p. viii), their briefs never address this claim. If there are bases upon which the plaintiffs’ section 1981 claim could survive summary judgment notwithstanding the defendants’ arguments, it was the plaintiffs’ responsibility to assert them. See Castro v. United States, 540 U.S. 375, 386, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (Scalia, J., concurring) (“Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.”). The plaintiffs’ failure to oppose the defendants’ motion for summary judgment on the section 1981 claim results in judgment for the defendants on this claim. See Mink v. Barth Electric Co., 685 F.Supp.2d 914, 935 (S.D.Ind.2010) (party waived argument that opposing party not entitled to summary judgment on claim when party failed to respond to the opposing party’s contentions and otherwise failed to address the merits of her own claim).

Accordingly, the court GRANTS summary judgment to all defendants on the plaintiffs’ section 1981 claims.

III. All defendants are entitled to summary judgment on the plaintiffs’ claim that they are liable under section 1983 for violation of Title VII.

The plaintiffs also claim that all the defendants, acting under color of law, deprived them of their rights under the equal protection clause of the Fourteenth Amendment. They seek redress under 42 U.S.C. § 1983, a statute that does not itself create substantive rights but provides “a means for vindicating federal rights conferred elsewhere,” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir.2011) (internal quotation omitted), such as the constitutional right to equal protection under the Fourteenth Amendment. Those claims will be addressed in the Analysis section of this Order.

The complaint also asserts, however, that plaintiffs’ Title VII rights are redress-able under section 1983 (Dkt. 1, ¶¶ 49, 51), but their briefing does not address how or why the Title VII claims should be evaluated in the context of section 1983. The court is not aware of any basis for changing or expanding Title VII duties, rights, or remedies by recognition of a claim under section 1983. The court will evaluate the plaintiffs’ Title VII claims only under Title VII — and only against the City of Indianapolis as the employer — and not with reference to section 1983. See Carver v. Sheriff of LaSalle County, 243 F.3d 379, 381 (7th Cir.2001) (Title VII claim “must proceed against the employer as an entity rather than against a natural person”); Alexander v. Chicago Park District, 773 F.2d 850, 855 (7th Cir.1985) (Title VII claim cannot be brought under section 1983); Huebschen v. Department of Health and Social Servs., 716 F.2d 1167, 1170 (7th Cir.1983) (plaintiff cannot bring suit under section 1983 based on Title VII against a defendant who cannot be sued directly under Title VII).

Accordingly, the court GRANTS summary judgment to all defendants on the plaintiffs’ claim that the defendants are liable under section 1983 for violations of Title VII.

IV. The Merit Board and individuals sued in their official capacities are entitled to summary judgment on the plaintiffs’ equal protection claims.

To the extent the plaintiffs’ section 1983 equal protection claims are brought against the individual defendants in their official capacities or against the Merit Board, those claims are duplicative or redundant of the claim against the City and are dismissed on that basis. See Campbell v. Town of Austin, 2004 WL 256343 at *4 (S.D.Ind. Feb. 10, 2004) (citing Monell v. Department of Social Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (official capacity claim is simply another way to plead an action against the entity for which the officer is an agent and is properly dismissed as redundant when suit is brought against the entity as well)).

The court will now turn to the claims and defenses that require more extensive factual and legal analysis.

Summary Judgment Standard

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). A “material fact” is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute as to a material fact exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249, 106 S.Ct. 2505. The party that bears the burden of proof on an issue may not rest on its pleadings, but must affirmatively demonstrate by designating specific facts on each essential element of its case “that there is a genuine issue of material fact that requires trial.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir.2007). Disputes about irrelevant facts do not matter; only factual disputes that might affect the outcome of the suit in light of the substantive law will prevent summary judgment. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; JPM, Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir.1996). Further, “the existence of some metaphysical doubt as to the material facts is [injsufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir.1997) (internal citations and quotes omitted).

The court construes the evidence, and draws all reasonable inferences from the evidence, in the light most favorable to the nonmoving party. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.2009). When evaluating cross-motions for summary judgment, therefore, the court construes the evidence and its reasonable inferences in favor of the party against which the particular motion under consideration is made. Metropolitan Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002). “[I]f genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate.” Olayan v. Holder, 833 F.Supp.2d 1052, 1061 (S.D.Ind.2011).

Undisputed Facts

The facts recited in this section are undisputed by the parties. As the discussion below will demonstrate, the parties’ cross-motions for summary judgment on the plaintiffs’ Title VII claims against the City can be determined on the basis of these undisputed facts. Resolution of the equal protection claims (including qualified immunity) and punitive damages issues requires the explication of additional facts, which the court includes in section III of the Analysis portion of this Order.

Creation of IMPD

In 2005, General Ordinance No. 110, 2005 was passed by the Indianapolis City-County Council and became law. (See Dkt. 161-2). The Ordinance added Chapter 279 to the Revised Code of the Consolidated City and County and established the Indianapolis Metropolitan Police Department (IMPD) through a consolidation of the two police forces within the City’s geographic boundaries — the Indianapolis Police Department (IPD) and the Marion County Sheriffs Department. At the time, defendant Michael T. Spears was the Chief of IPD, a position to which he was appointed. Defendant Frank Anderson was the Sheriff — the head of the Sheriffs Department — an office to which he was elected by voters.

Under the Ordinance^ the two police forces were to begin coordinating their financial and purchasing operations through IMPD effective January 1, 2006, and were to provide law enforcement, as IMPD, for the City effective January 1, 2007. (Section 279-102). Effective after December 31, 2006, all IPD officers and all county sheriff deputies became members of IMPD. (Section 279-103(a)). Merit promotions lists for the separate police forces were deemed to have expired effective January 1, 2006, and the two departments were directed to engage in “joint promotional processes for all merit ranks” before January 1, 2007. (Section 279-104(a)). The Ordinance created a “Transition Authority” to, in general, plan and oversee the consolidation of the two police forces. (Section 279-201). The Transition Authority had three members — the Sheriff (defendant Frank Anderson), the Mayor (defendant Bart Peterson), and the President of the City-County Council (defendant Monroe Gray, Jr.). A transition advisory committee, composed of 15 members, was established, as well as a 43-member steering committee, to address consolidation issues and to make recommendations to, and carry out directions from, the Transition Authority. (Sections 279-203, - 204, -205).

The 2006 Promotion Process

IPD and the Sheriffs Department had differing merit ranks. Within IPD, the rank of captain — the rank just above lieutenant — was a merit rank, while in the Sheriffs Department, the rank of captain was an appointed rank. (Spears Dep., Dkt. 161-8, p. 92, lines 17-22 (regarding IPD ranks) and p. 32, lines 10-18 (regarding Sheriffs Department ranks)). In anticipation of the combined police force as IMPD, and in anticipation of promoting officers from the rank of lieutenant to the rank of captain, a joint promotional process for officers from IPD and the Sheriffs Department — competing against one another for promotion — was established and approved by the merit boards of IPD and the Sheriffs Department. (See Dkt. 161-25, minutes of 8/26/2006 joint meeting of IPD and Sheriffs Department merit boards). The 2006 promotion process included written testing materials, oral interviews, and consideration of background factors such as a college degree or military service, all of which were approved by the merit boards. (Id.).

Fifty-two lieutenants from IPD and the Sheriffs Department completed the applications, examinations, and interviews necessary to be considered for the 2006 captain promotions, and an eligibility list for promotion was created. The eligibility list ranked the 52 officers from highest to lowest in their overall scoring. (See Dkt. 161-9, eligibility list reflecting scoring on all facets of 2006 promotion process).

Under Section 253-207 of the City’s Code (Dkt. 161-1), which was applicable at the time, the Chief of IPD was responsible for making promotions with the approval of IPD’s five-member civilian merit board. Section 253-207 states in relevant part:

Promotions shall be made by the chief of police with the approval of the merit board. Such promotions shall be made to position vacancies identified by the chief of police and designated to be filled by the chief and the director of public safety. In making final selections for promotion, the chief shall promote the candidate receiving the highest promotion score who, in the opinion of the chief and the merit board, is best qualified for the position.

All promotions to the ranks of sergeant, lieutenant and captain shall be made in accordance with this merit system, without regard to the candidate’s political party preference or activities.

(Section 253-207®, (k)).

Chief Spears’s Promotion Recommendations and Their Approval

IPD Chief Michael T. Spears determined eleven promotions to the merit rank of captain should be made, based on various anticipated personnel needs for IMPD (Spears Dep., Dkt. 161-8, p. 69, line 17 to p. 73, line 8), and at a December 14, 2006 meeting of the IPD Merit Board, Chief Spears recommended eleven officers for those promotions. (Minutes of 12/14/06 merit board meeting, Dkt. 161-23 at p. 5). He made the same recommendations to the Transition Authority at a public meeting held December 19, 2006. (Transcript of 12/19/2006 Transition Authority meeting, Dkt. 161-16 at p. 5).

Chief Spears’s recommendations were not all in the rank order provided on the eligibility list. Chief Spears recommended for promotion the candidates ranked one through seven on the list, all of whom were white males and one of whom was a sheriffs deputy. (Dkt. 149-21). At that point, Chief Spears deviated from rank order. Candidate number eight was twelfth on the eligibility list, an African American, and Chief Spears chose him “pursuant to the consent decree.” (Id.). Candidate number nine was ranked thirteenth on the eligibility list, was a sheriffs deputy and is white, and Chief Spears chose him based on a provision of City Code Section 279-104 (creating IMPD) setting a goal “of proportional representation of former police officers and sheriffs deputies throughout the divisions and appointed ranks” of the new IMPD. Candidate number ten was seventeenth on the eligibility list, was a sheriff’s deputy and African American, and Chief Spears chose him “pursuant to the consent decree as well as” the proportional representation goal for former sheriff deputies in the new IMPD as provided in Section 279-104. (Id.). Finally, candidate number eleven was twenty-sixth on the eligibility list, an African American, and Chief Spears chose him “pursuant to the consent decree.”

The consent decree, a court order entered by Judge James Noland of this Court on July 19, 1978, was entered by the City and the federal government to settle a lawsuit by the United States against the City, various agencies, and City officials to redress race discrimination within the Indianapolis police and fire departments. (Dkt. 149-1, hereafter “Consent Decree”). The Consent Decree was viewed by many within the City and IPD as either requiring or permitting the Chief of IPD to make recommendations for promotion out-of-rank order for the benefit of officers of African American race and based on and because of their race. (E.g., Spears Dep., Dkt. 161-8, p. 28, lines 3-8, p. 29, lines 1-12, p. 49, line 15 to p. 50, line 2; Minutes of 10/21/2004 IPD merit board meeting, Dkt. 149-14 at pp. 57-61). (That view, as addressed in more detail later in this entry, was erroneous at least as of, and in connection with, the 2006 promotions at issue in this case.)

The plaintiffs here were ranked eighth (Mr. Hensley), ninth (Mr. Finch), and tenth (Mr. Mungovan) on the eligibility list. (See Dkt. 149-20). The parties do not dispute that had Chief Spears followed rank order in his recommendations, these men would have been promoted to captain as part of the 2006 promotions. The parties also do not dispute that Chief Spears’s recommendations for at least three of the promotions that were made — the officers that were ranked twelfth, seventeenth, and twenty-sixth — took into account the officers’ race as a deciding factor in favor of their promotions. The Merit Board, by a 3 to 2 vote, approved Chief Spears’s recommendations. (Dkt. 161-23). The three members who approved the recommendations are defendants Cordelia L. Burks, Mary Maxwell, and Joseph L. Smith, Jr. Id. The three members of the Transition Authority — defendants Mayor Peterson, Sheriff Anderson, and City-County Council President Monroe Gray, Jr. — ratified Chief Spears’s recommendations. (Dkt. 161-16 at p. 5).

Analysis

Remaining for the court’s summary judgment evaluation are (1) the plaintiffs’ Title VII discrimination and retaliation claims against the City, on which both the plaintiffs and the defendants seek summary judgment; (2) the plaintiffs’ section 1983 claims against the City and all individual defendants (in their individual capacities) for violating the plaintiffs’ rights to equal protection secured by the Fourteenth Amendment, on which both the plaintiffs and the defendants seek summary judgment; and (3) the plaintiffs’ request for punitive damages, on which the defendants seek summary judgment.

I. The plaintiffs are entitled to summary judgment against the City on their claims for race discrimination under Title VII.

Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race ....” 42 U.S.C. § 2000e-2(a)(l).

This case is quite unlike most Title VII race discrimination cases that require detailed elucidation of the evidence under the McDonnell Douglas direct and indirect methods of proof to “sharpen” the analysis “into the elusive factual question of intentional discrimination.” Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir.2012) (addressing prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

Here, the City admits that Chief Spears’s promotion recommendations, which were approved and effected, were race-conscious. At least three candidates for promotion to captain were promoted ahead of plaintiffs Hensley, Finch, and Mungovan because they are African American. Stated another way, had the plaintiffs been African American, they would have been promoted to captain.

The City’s defense to liability under Title VII is that it was permitted (or more precisely, according to the City, required) by the Consent Decree to skip over plaintiffs Hensley, Finch, and Mungovan, and make instead “affirmative action” promotions from lieutenants to captains based on race. The City argues that its racially discriminatory conduct falls within a “safe harbor” from discrimination claims provided in the Consent Decree. It also argues the general proposition, with some support in the case law, that where a person’s actions were mandated by court order, such as a consent decree, damages liability should not result even if that conduct is later found unlawful. The court rejects these arguments for the same reasons it did earlier in this case. (See Dkt. 76). That is, the defense proceeds from an erroneous premise that the Consent Decree required (or permitted) race-based promotion decisions. As this court and the Seventh Circuit previously held in this case, the plain language of the Consent Decree required promotions to be made “without regard to race or color.” Finch v. City of Indianapolis, 2009 WL 1797865 (S.D.Ind. June 24, 2009), aff'd sub nom. Finch v. Peterson, 622 F.3d 725 (7th Cir. 2010). As explained below, the City’s new arguments do not alter those conclusions.

A. The Consent Decree did not mandate, or permit, race-based promotions.

1. The 1978 Consent Decree was supported by evidence of past discriminatory impact.

Although as part of the 1978 Consent Decree, the City did not admit any past intentional practice or policy within IPD (or the Fire Department) to discriminate against blacks, the evidence demonstrated discriminatory impact. The racial composition of the City and Marion County workforce was approximately 16-17% black, according to 1970 U.S. census figures, while the percentage of black police officers within IPD ranged from only 8.9% to 11.3% in the years 1972 through 1978. In addition, from 1972 through May 1977, IPD had hired a total of 216 officers but only 27 of them were African American— with most of the African Americans (20 of the 27) hired between February 1976 and May 1977. (Id., Stipulation of Facts, ¶ 8). Written examinations that IPD used for selecting officers for promotions had never before been validated in accordance with EEOC or Department of Justice guidelines. Id., ¶ 9. Testing results indicated a disparate impact for test failure for black officers. Actual promotions also showed disparate impact against black officers. Data from 1972-1975 promotions to sergeant showed that 66% of black officers taking the promotion tests failed (compared to 33% of whites). Id., 10. Of all promotions to sergeant in this period, 95% of the promotions (108 out of 114 promotions made) were of white officers and 5% (six total) were black officers. Id., ¶ 10. The 1972-1975 data for promotions from sergeant to lieutenant showed that 63% of black officers taking the promotions tests failed them (compared to 44% of the white officers). Id., ¶ 11. Of all promotions to lieutenant during this period, 97% of the promotions (34 out of 35 promotions made) were of white officers; only one black officer (representing the remaining 2.86% of 35) was promoted to lieutenant. Id.

2. The Consent Decree’s guidelines for recruitment and hiring are separate from those that apply to promotions.

The 1978 Consent Decree treats the City’s obligations for the “Recruitment and Hiring” of IPD officers separately from “Promotions” of IPD officers.

a. Recruitment and Hiring

Recruitment and Hiring are addressed in Section IV, which required the City to take certain affirmative steps “to remedy the present effects of hiring practices which may have adversely affected blacks in the past.” (Section IV.A.). In addition to taking affirmative steps to improve and establish an image of IPD within the black community as an attractive employer that does not discriminate against blacks, and to actively recruit blacks to apply to become officers, the City agreed to “appoint, subject to the availability of qualified black applicants, at least twenty-five percent (25%) blacks to all future training classes of [IPD] until” the long-range goal that the number of black officers “more nearly reflects the racial and ethnic composition of the work force of the City of Indianapolis (Marion County) as a whole” is achieved. (Section IV.A.1-2). The 25% mandate was subject to renegotiation upward if the City did not make appreciable progress in achieving the long-range goal that the percentage of black officers coincide with the racial composition of the Marion County work force, as measured from time to time. (Section IV.A.3, 5). There is no evidence that the 25% quota applicable to IPD training classes was ever revised upward.

b. Promotions

Promotions are addressed in Section IX of the Consent Decree. The City agreed to take certain affirmative steps to “remedy the present effects of promotion practices which may have adversely affected blacks in the past.” But contrary to the City’s obligations for recruitment and hiring, promotions were to be made “based upon relevant standards and criteria which will be applied without regard to race or color.” (Section IX.C.1; emphasis added). The “long-term goal” that blacks would be promoted in percentages “reasonably representative” of their percentages in the ranks from which promotions are made was expected to be achieved naturally as the barriers to promotion were removed (such as by the adoption of race-neutral testing, and the wide-availability of skills training, and educational and work assignment opportunities) and over time as the number of blacks recruited, and then hired, as police officers in the first place increased as a result of the Decree’s mandates on recruitment and hiring. Id. See Finch, 622 F.3d at 730 (describing the Consent Decree’s logical framework for increasing the number of African American officers in the ranks of sergeant, lieutenant, and captain, while prohibiting race-based decisions for promotions).

The terms of the Consent Decree regarding promotions are central to this case. Section IX reads:

PROMOTIONS

A. Goals.

In order to remedy the present effects of promotion practices which may have adversely affected blacks in the past, Defendants agree to take the following affirmative steps:

1. As a long-term goal, Defendants agree to adopt and seek to achieve a goal of promoting blacks to the ranks of Sergeant, Lieutenant and Captain within the Police Department [and to certain ranks within the Fire Department] so as to attain a percentage within those ranks which is reasonably representative of the percentage in the ranks from which promotions are traditionally made, the black percentages of which will begin to increase under the provisions of this Decree relative to the recruitment and hiring of police officers and firefighters.

2.In order to assure the fair and equitable promotion of blacks, and because the past selection processes may have had an adverse impact on blacks and have not been validated, no further certification for promotion to the ranks of Sergeant, Lieutenant and Captain within the Police Department shall be made from the results of promotional examinations given prior to the date of February 5, 1978.

B. Periodic Review.

The written procedures for promotions shall be periodically reviewed to assure that they are maintained in such a manner that barriers that tend to discriminate against any candidates on the basis of race or color are eliminated. Copies of such written procedures and any revisions made thereto with respect to the Indianapolis Police Department shall be available for examination by the sworn personnel within the Police Department, the Department of Justice, counsel for the Larkins Plaintiffs, ORS and LEAA. The same information shall be available for examination by the sworn personnel within the Fire Department, the Department of Justice and ORS for the Indianapolis Fire Department.

C. Affirmative Action to Achieve Stated Goals.

1. Promotions shall be based upon relevant standards and criteria which will be applied without regard to race or color.

2. As indicated in Sections V and VIII above, Defendant City has engaged the Jacobs Division of Planning Research Corporation to analyze, evaluate and recommend improvements for the selection process for Sergeant, Lieutenant and Captain in the Indianapolis Police Department. Additionally, Jacobs Division has attempted to develop a written promotional examination for the Indianapolis Police Department in accordance with EEOC Guidelines on Testing and FEA Guidelines on Testing, which will include test manuals and instructional manuals.

3. Defendants shall provide counseling at regular intervals to any officer who desires to apply for promotion to a position which requires additional training and skill development. Such counseling shall inform the officer as to necessary additions to his or her skill and experience which are required for such promotion or advancement.

4. Defendants shall notify all sworn personnel in the Indianapolis Police and Fire Departments, by posting at the Personnel Branch bulletin board, information concerning the availability, time and procedure for application, and the criteria for selection of personnel for enrollment in special courses, classes, training or instruction in any areas of specialization or job skills. Such notice shall be posted at least two (2) weeks prior to the last date of application for any such opportunities.

5. Defendants shall give written notice by mail to all eligible personnel of the date when any promotion examination is scheduled and the deadline for application for such examination.

6. If an officer(s) within the Indianapolis Police Department on the promotional list is passed over for a promotion and an officer ranked lower on the eligibility list is promoted, the officer(s) not promoted shall be given, upon written request to the Chief of Police, the reason(s) that the officer ranked lower on the eligibility list was promoted.

D. Interim Testing.

For the purpose of developing valid promotional selection devices, the Defendants may use any interim promotional selection device of their choice so long as the results are used in a manner which is consistent with the goals set forth in Sections IX(A)(1) and (2), supra. However, any such promotional selection device in the Indianapolis Police Department may not be used more than one (1) time if it has an adverse effect on blacks and it is not shown to be properly validated in accordance with applicable federal guidelines.

3. The promotion provisions of the Consent Decree were construed earlier in this case, both by this court and by the Seventh Circuit.

In earlier proceedings in this case, the defendants moved for judgment on the pleadings on the ground that the Consent Decree required the City to take race into account in promoting over the plaintiffs African American officers who were ranked lower than the plaintiffs on the eligibility list. The defendants asserted that the City’s “compliance” with the Consent Decree shielded the City from liability, as well as the individual defendants under the doctrine of qualified immunity. This court rejected the defendants’ arguments because, as shown above, the Consent Decree does not require the City to consider race in making promotions decisions, but rather expressly excludes consideration of race in those decisions. Finch v. City of Indianapolis, 2009 WL 1797865 (S.D.Ind. June 24, 2009) (Dkt. 76). The court’s denial of qualified immunity was immediately appealable, and the individual defendants appealed.

The Seventh Circuit affirmed this court’s decision, also concluding that “Nothing in [the 1978 Consent Decree] required [city officials] to take race into consideration in making promotions. To the contrary, specific language in the decree required promotions within the Police Department to be made without regard to race or color.” Finch v. Peterson, 622 F.3d 725, 726 (7th Cir.2010). The Seventh Circuit also rejected the defendants’ argument that to effectuate the Consent Decree’s overall goals and purposes to increase the number of African Americans throughout all levels of IMPD, city officials were at least permitted by the Decree to take remedial actions influenced by racial considerations in making promotions. The court stated: “Properly understood, Subsection IX, read as a whole, operates to prohibit so-called ‘raee-norming’ in promotions.” Id. at 730.

4. There is no persuasive basis for revisiting the construction of the promotion provisions of the Consent Decree.

a. The 1996 and 1997 decisions in Black do not persuade the court to revisit the meaning of the Consent Decree.

The City (and the other defendants) ask the court to revisit its construction of the Consent Decree, asserting there is “new evidence” that was not previously considered by this court or the Seventh Circuit that should change the conclusion that the Consent Decree excluded race or color as a factor in promotions. They point to two orders in Black v. City of Indianapolis, Case No. IP 95-0453-LJM, in which Judge McKinney addressed cross-motions for summary judgment in a case where, like this one, white male IPD officers challenged the City’s failure to promote them as unlawful under Title VII because the City promoted instead African American (and female) officers who ranked beneath them on the applicable promotions eligibility list because of those officers’ race (or sex). Because of the defendants’ heavy reliance on Black, this court provides a detailed discussion of those decisions.

The promotions at issue in Black were of police patrol officers to the merit rank of sergeant and took place in January 1993. The City conceded — as it does in this case — that its promotion of African American officers instead of the higher-ranking Caucasian plaintiffs were “affirmative action” promotions made because of the Consent Decree, and to meet the Consent Decree’s goals and remedy a racial imbalance within IPD’s supervisory ranks. (See Dkt. 149-5 at p. 4; Dkt. 149-6 at pp. 2-3). The orders in Black treated the Consent Decree as an affirmative action plan that permitted race-motivated promotion decisions for purposes of Title VII only (but significantly not the equal protection clause) so long as the plan and its implementation in particular circumstances satisfied requirements announced by the Supreme Court in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987).

In the first Black order (“Black I”), the court found that under Johnson, a race-based employment decision made according to an affirmative action plan does not violate Title VII if at the time of the decision there existed “a manifest racial imbalance” and if the rights of nonminority employees were not “unnecessarily trammeled.” (Dkt. 149-5 at pp. 9-12). The court determined that the record lacked sufficient information to evaluate the fairness of the Consent Decree as applied in the 1993 promotions to nonminorities and lacked the necessary statistical data to make the kind of “focused statistical analysis” required to decide whether a manifest racial imbalance existed.

The City then submitted a supplemental motion for summary judgment to supply the kind of record evidence found lacking in Black I, and in the second Black order (“Black II”) the court granted summary judgment to the City. In Black II, the court did not revisit the “undisputed facts” discussed in Black I and incorporated them as an underlying basis for the second order. (Dkt. 149-6 at p. 1). The court stated that the Consent Decree required the City to undertake certain affirmative action in recruiting, hiring, and promoting minority officers, and highlighted the following language from the Consent Decree as particularly relevant: “[The] Consent Decree explicitly requires the City ‘to adopt and seek to achieve a goal of promoting blacks to the ranks of Sergeant, Lieutenant and Captain within the Police Department ... so as to attain a percentage within those ranks which is reasonably representative of the percentage in the ranks from which promotions are traditionally made .... ’ Consent Decree I, ¶ IX, A, 1.” (Dkt. 149-6 at p. 2, ellipsis as in original).

The court evaluated the City’s new statistical evidence within the Johnson v. Transportation Agency framework it had discussed in Black I. To determine whether a manifest racial imbalance existed, the court compared the percentage of African American officers in the pool of officers eligible for promotion to sergeant to the percentage of African American officers that had the rank of sergeant at the time of the January 1993 promotions at issue. Its analysis showed that in January 1993, 23% of patrol officers eligible for promotion to sergeant were African Americans, while only 16% of current sergeants were African Americans, suggesting “that the City has not yet attained the racial balance contemplated by the 1978 Consent Decree.” (Dkt. 149-6 at p. 5). Ultimately, the court decided that “the City did not violate the standard from Johnson by considering race and gender in conjunction with the 1993 promotions” and was thus entitled to judgment on the plaintiffs’ Title VII claims. (Dkt. 149-6 at p. 8).

The City contends that the two Black decisions control the City’s use of the Consent Decree for promotions, so that if considering race in promotion decisions was permitted under Black, then necessarily the City could make race-conscious decisions in 2006 under the auspices of the Consent Decree without running afoul of Title VII. Other than labeling the decisions in Black as a “judicial mandate,” however, the City does not offer any legal basis for requiring the court to reach the same conclusions under these facts and claims as the Black court reached under the facts and law presented there, and the court perceives none. Certainly neither Black decision purported to or did alter any provision of, or otherwise amend, the Consent Decree.

The fundamental reason this court rejects the defendants’ assertion of Black as a justification for the City’s 2006 “Consent Decree promotions” is that the decision does not address the provision of the Consent Decree requiring promotions to be made without regard to race. Conspicuously missing from the orders in Black I and Black II and their discussion of the terms of the Consent Decree is the language of Section IX.C.1 that “Promotions shall be based upon relevant standards and criteria which will be applied without regard to race or color.” It is that language that forecloses any argument that the Consent Decree can be viewed as an affirmative action plan permitting consideration of race as a factor in promotions in certain circumscribed situations consistent with Title VII and under the principles of Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). An undisputed fact upon which summary judgment must be decided in this case is the language of Section IX.C.1, and that language was not construed, applied, or even addressed in Black.

This court does not know why the language in Section IX.C.1 was not addressed in the Black decisions. But it surmises that the parties never mentioned this language and failed to bring it to Judge McKinney’s attention. In this very case, the defendants’ comprehensive briefing regarding the Consent Decree to support their motion for judgment on the pleadings (see Dkts. 52, 58, and 67) never mentioned that the Consent Decree required promotions to be based on relevant standards applied “without regard to race or color” and did not bring it to this court’s attention. The plaintiffs’ opposition briefing did point to this language (Dkt. 64 at pp. 2-3), but, strangely, the defendants’ reply brief continued to ignore the language of Section IX.C.1. (See Dkt. 67).

Courts must generally rely on the parties before it to articulate the relevant facts, discuss applicable law, and argue the application of the law to the facts. When parties do not bring particular facts to a court’s attention — such as relevant provisions of the Consent Decree — a court understandably may not address them. The defendants cannot rely on Black as authority on an issue that was not raised and litigated by the parties or addressed by the court.

b. DOJ’s “acquiescence” in prior race-based promotions does not alter the language of the Consent Decree or the result here.

The defendants also argue that the Department of Justice acquiesced in a view that the Consent Decree permitted the City to make affirmative action promotions based on race. But even if this were true (and there is insufficient evidence to accept it as true), the defendants do not provide any legal basis on which the court could construe the Consent Decree contrary to its plain language because of some longstanding acquiescence or understanding by DOJ and the City that the Consent Decree means something different from what it actually says. After all, the Consent Decree is a court order; any amendment or other alteration in the language of the Decree required an order from the court. That was not done until August 2008, well after the 2006 promotions at issue in this case, when the court granted the City’s and DOJ’s joint motion to dissolve the Consent Decree. (Dkt. 149-2).

In sum, neither the two decisions in Black nor DOJ’s purported acquiescence in the City’s long-standing race-based promotional practices change the undisputed fact and legal conclusion that: “Nothing in [the 1978 Consent Decree] required [city officials] to take race into consideration in making promotions. To the contrary, specific language in the decree required promotions within the Police Department to be made without regard to race or color.” Finch, 622 F.3d at 726. Moreover, as the Seventh Circuit affirmed in this case, that specific language applies to “reverse” discrimination against Caucasians and discrimination against African Americans (and any other race for that matter). The City’s argument — timidly advanced in a footnote (Dkt. 150 at pp. 20-21 n. 8) — that Section DLC.l’s proscription of race-based decisions in promotions applies only to discrimination against African Americans and not against Caucasian officers, is groundless. - There is no textual, logical, or legal support for that argument, and it runs afoul of this court’s and the Seventh Circuit’s decisions in this case.

Because the Consent Decree did not permit or require the City to engage in race-based discrimination in its promotion decisions, and because the City has no other defense to its admitted race discrimination in the promotion decisions affecting plaintiffs Finch, Mungovan, and Hensley, the City is liable as a matter of law to the plaintiffs on their claims for race discrimination under Title VII. The plaintiffs’ remedies under Title VII remain to be determined at trial.

II. The City’s motion for summary judgment on the Title VII retaliation claims of plaintiff Finch must be denied; it is entitled to summary judgment on the retaliation claims of plaintiffs Hensley and Mungovan.

Title VII also prohibits retaliatory action against an employee because he has brought a charge of race discrimination or participated in any proceeding under Title VII. 42 U.S.C. § 2000e-3(a); Silverman v. Board of Education of City of Chicago, 637 F.3d 729, 740 (7th Cir.2011) (“Title VII prohibits an employer from taking an adverse employment action against an employee because she has filed an employment discrimination charge.”).

The City seeks summary judgment on the Title VII retaliation claims because the plaintiffs did not include them in their EEOC charges. The court will address this argument only in the context of Finch’s retaliation claim. Plaintiffs Hensley and Mungovan have failed to advance any factual basis for their retaliation claims (if in fact they intended to pursue them). That leaves the court no basis on which to find that their retaliation claims would meet the exception to the exhaustion requirement discussed below. The defendants are therefore granted summary judgment on the Title VII retaliation claims of Hensley and Mungovan.

Plaintiff Finch asserts that after filing his January 2007 EEOC charge complaining of the City’s failure to promote him in December 2006 (see Dkt. 149-31 at p. 2), he suffered retaliation by being transferred from an IT position for no apparent reason, by later being transferred to a position in which he seemingly was given no authority, by having his disciplinary authority over another officer ignored, and by being denied the benefit of a new police car. (See Dkt. 160 at p. 67).

Title VII claims are subject to an administrative exhaustion requirement, and a plaintiff ordinarily may pursue in court only those claims he included in an EEOC charge or that are sufficiently alike or reasonably related to the allegations made in the EEOC charge. Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir.2002); Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir.1994). The Seventh Circuit has examined this principle for retaliation claims and distinguished between claims of retaliatory conduct that occurred before the filing of the EEOC charge and those that occurred after, and because of, the filing of an initial EEOC charge. Under Seventh Circuit precedent, claims that the employer retaliated against the plaintiff after and because of her EEOC charge do not require a second EEOC charge alleging retaliation. McKenzie v. Illinois Dep’t of Transportation, 92 F.3d 473, 482-83 (7th Cir.1996); Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir.1989) (“[W]e join the other circuits that have spoken to the question in adopting the rule that a separate administrative charge is not prerequisite to suit complaining about retaliation for filing the first charge.”)

The Seventh Circuit has reasoned that a requirement to file a new EEOC charge for retaliatory conduct alleged to have occurred because of the filing of the first charge would create a needless procedural technicality and could deter employees from pursuing retaliation claims for fear that a new charge would prompt still more retaliation. McKenzie, 92 F.3d at 482 (citing Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir.1981) (characterizing a second EEOC charge in this context as a “needless procedural barrier” whose elimination will deter employers from interfering with their employees’ Title VII rights)). See also Troutt v. City of Lawrence, 2008 WL 3287518 at *13 (S.D.Ind. 2008) (“To avoid unduly burdening the EEOC (and to avoid an endless cycle of charge, lawsuit, retaliation, new charge, new lawsuit, etc.), courts may permit employees who have filed a prior charge of discrimination and later allege that they were retaliated against because of that charge to be excused from filing yet another charge.”).

The City contends that McKenzie and like decisions from the Seventh Circuit and other circuits permitting retaliation claims without a second EEOC charge do not survive the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Although National Railroad contains broad language supportive of the City’s argument, National Railroad addressed a statute of limitations issue much different from the exhaustion issue at the heart of McKenzie. It does not clearly overrule or undercut McKenzie, and this court is bound by McKenzie until the Seventh Circuit holds otherwise.

National Railroad addressed the timeliness of an EEOC charge and whether an employee can pursue claims based on conduct that occurred before the filing of his EEOC charge but outside the statute of limitations. Title VII’s limitations period requires an EEOC charge to be filed within 180 days (or 300 days in “dual-filing” states, including Indiana) “after the alleged unlawful employment practice occurred” (42 U.S.C. § 2000e-5(e)(l)), and the Court addressed whether an employee can recover for acts of discrimination that occurred more than 180 (or 300) days before he filed his EEOC charge. The Court stressed that the statute’s limitations period is straightforward and unambiguous, and because a “discrete retaliatory or discriminatory act occur[s] on the day that it “happenfsj,” ” then a party must “file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.” 536 U.S. at 110, 122 S.Ct. 2061. Except for hostile environment claims, the Court rejected a continuing-violation theory that would sweep in old acts of discrimination if they were alleged as part of “serial” conduct tied to acts for which a timely EEOC charge had been made. Id. at 114, 122 S.Ct. 2061.

The issue addressed in National Railroad is materially different from the administrative exhaustion issue faced in McKenzie — whether a second EEOC charge is required to pursue a retaliation claim for conduct alleged to have occurred after and because of the filing of an initial EEOC charge. The Supreme Court’s decision does not purport to abridge the general rule that an employee may pursue claims sufficiently alike or reasonably related to the allegations made in the EEOC charge even if not specifically mentioned in the charge, the basis of the holding in McKenzie. Nor does the decision undercut McKenzie’s rationale that requiring a second charge may tend to insulate employers from liability because their employees would decline to file charges with the EEOC for fear of more retaliation.

Although the Tenth Circuit views National Railroad as requiring an EEOC charge for every act on which a Title VII claim is based, including a charge of retaliation for having gone to the EEOC in the first place, Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir.2003), other circuits have held, or signaled their agreement, that National Railroad does not abrogate the McKenzie-type “exception” to administrative exhaustion. Jones v. Calvert Group, Ltd., 551 F.3d 297, 303 (4th Cir.2009) (deciding that National Railroad does not address extent to which EEOC charge “satisfies exhaustion requirements for claims of related, post-charge events,” such as retaliation for filing the EEOC charge); Wedow v. City of Kansas City, Missouri, 442 F.3d 661, 673-74 (8th Cir. 2006) (permitting plaintiff to pursue retaliation claims for conduct about which EEOC charges were not filed where the EEOC charge at least alleged that the employer was engaging in some retaliatory conduct); Delisle v. Brimfield Twp. Police Dep't, 94 Fed.Appx. 247, 252-54 (6th Cir. 2004) (unpublished decision) (finding that National Railroad does not abrogate rule that post-charge retaliation claims reasonably related to the filed charge do not need a new charge to be actionable). See also Weber v. Battista, 494 F.3d 179, 183-84 (D.C.Cir.2007) (noting disagreement between Tenth Circuit in Martinez and Eighth Circuit in Wedow but finding it unnecessary on the facts before it to choose a side).

The Seventh Circuit has not directly addressed any tension between its McKenzie rule and the Supreme Court’s analysis of the statute of limitations issue in National Railroad, but the court has favorably mentioned its McKenzie rule in a ease post-dating National Railroad, thus demonstrating that the Seventh Circuit does not think McKenzie is overruled by National Railroad. See Horton v. Jackson County Bd. of County Comm’rs., 343 F.3d 897, 898-99 (7th Cir.2003) (dictum cites McKenzie for rule that “retaliation for complaining to the EEOC need not be charged separately from the discrimination that gave rise to the complaint,” but court’s holding concerns whether employee may outside the class action context piggyback a co-employee’s EEOC charge to meet administrative exhaustion requirement). In 2008, then District and now Circuit Judge Hamilton found McKenzie survived National Railroad Troutt v. City of Lawrence, 2008 WL 3287518 at *12 (S.D.Ind. Aug. 8, 2008) (the plaintiffs retaliation claim fits “a well-recognized exception” to the rule in National Railroad that each discriminatory act starts a new clock for filing EEOC charges).

Because the McKenzie rule and its rationale are not in conflict with National Railroad, the court DENIES the City’s motion for summary judgment on plaintiff Finch’s retaliation claims based on his failure to file EEOC charges for those retaliatory acts.

III. On the equal protection claims, the plaintiffs are entitled to summary judgment against some defendants, some defendants are entitled to summary judgment, and questions of fact preclude summary judgment as to other defendants.

The plaintiffs seek summary judgment on their claims, under 42 U.S.C. § 1983, that all defendants violated the plaintiffs’ rights to equal protection secured by the Fourteenth Amendment because the plaintiffs were denied promotions to the rank of captain because of their race. The individual defendants, in addition to defending the plaintiffs’ motion, bring their own motion for summary judgment on the ground they are entitled to qualified immunity and, even if they are not, the plaintiffs as a matter of law are not entitled to punitive damages.

Section 1983 requires a plaintiff to show that he was “deprived of a right secured by the Constitution or federal law, by a person acting under color of law.” Padula v. Leimbach, 656 F.3d 595, 600 (7th Cir. 2011). Here, the plaintiffs are required to show — through direct or indirect evidence — that each defendant intentionally discriminated against them based on race. See Davis v. Wisconsin Dep’t of Corrections, 445 F.3d 971, 976 (7th Cir.2006) (section 1983 equal protection claim requires proof of intentional racial discrimination).

There is no respondeat superior liability under section 1983. For an individual, one is responsible only for one’s own actions and can be liable only on proof of his discriminatory animus. Smith v. Bray, 681 F.3d 888, 899 n. 5 (7th Cir.2012). The individual defendants, sued in their individual capacities, do not challenge that their roles in the promotional decisions as either the Chief of IPD (defendant Spears), members of the Merit Board (defendants Burks, Maxwell, and Smith), or members of the Transition Authority (defendants Peterson, Anderson, and Gray) were under color of law. All, except Chief Spears, contend there is no evidence they knew Chief Spears’s promotion recommendations — which they followed — were race-conscious, and all argue that, if they did know, they are entitled to qualified immunity as a matter of law.

For the City, a municipal corporation can be liable as a person under section 1983 where “action pursuant to official municipal policy” caused the rights violation and injury. Monell v. Department of Social Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Polka v. City of Chicago, 662 F.3d 428, 434 (7th Cir. 2011). The City does not challenge that the promotion decisions at issue satisfy the Monell standard.

To evaluate the parties’ motions on the equal protection claims, additional facts must be addressed.

A. Additional facts are pertinent to analysis of the equal protection claims and defenses.

In this section, the court discusses those additional facts material to the plaintiffs’ section 1983 equal protection claims that are undisputed in the record, and identifies those about which there are disputes requiring a jury’s resolution. These facts trace the decision-making process from Chief Spears to the Merit Board to the Transition Authority effecting the December 2006 promotions to captain.

Chief Spears’s Understanding of the Consent Decree

Chief Michael T. Spears, a white male, was appointed to the position of Chief of IPD in 2005 and served as Chief for five years. (Spears Dep., Dkt. 161-8, p. 31, line 21; p. 7, lines 14-18). He previously served as an Assistant Chief, beginning in 1998. (Id., p. 6, lines 2-5). Chief Spears has never read the Consent Decree (Id., p. 29, line 21 to p. 30, line 2), but he was aware through personal observation while an Assistant Chief that men who had served as Chief before him “routinely used the Consent Decree to help ensure diversity in their promotional recommendations”; in Chief Spears’s view, “it was a regular occurrence in the promotional processes.” (Id., p. 25, lines 3-24; p. 27, lines 7-10). Throughout his time with the police department (which he joined as a patrol officer in January 1982, id., p. 5, lines 6-7), Chief Spears understood — and believes his understanding was shared by management and “really the organization” as a whole— “that the Consent Decree recommended that there be 25 percent representation [of African Americans] in promotions and in hiring.” (Id., p. 28, lines 3-8). Chief Spears believed that for promotions, if there were enough African American candidates in rank order to fill promotions, then deviations from rank order were not necessary or “you wouldn’t have to ... deviate as much” from rank order, but “if there wasn’t 25 percent African American representation in rank order then [the Chief] would try to find other candidates to get close to that number.” (Id. p. 29, lines 1-12). Chief Spears had heard from others (various chiefs, public safety directors, attorneys) for many years, and understood, that 25% was the goal under the Consent Decree for the number of promotions that should be made to African Americans. (Id., p. 49, lines 15 to p. 50, line 2).

The first promotion recommendations Chief Spears made in his role as chief occurred in 2005 when he was appointed Chief. Those recommendations, which involved seven or eight promotions to the merit rank of sergeant and one to the merit rank of lieutenant, were all in rank order of the applicable promotion eligibility list. (Id., p. 31,