Appendix — Thoele v. City of Chicago

st | a Supreme Court, U.S.

895 074 ve FILED

SEP 30 1985

No.

IN THE

JOSEPH F. SPANIOL, JR«

CLERK

Supreme Court of the Gnited States

OCTOBER TERM, 1985

MAURICE THOELE, LOUIS AKADO, HUGH HERATY, GARVIN NIX,

JOSEPH LORENZ, MICHAEL GRIEGEL, WILLIAM McCORRY. DEN-

NIS JYRKOWSKI, JOSEPH MUCIA, ROBERT MURRAY, JAMES ORR,

RICHARD KIMBLE, JOHN KACHKA, ALEX McCRAE, FRANK SAD-

LER, THOMAS MINASOLA, GEORGE HEAD, LEONARD MIJKA,

JOHN VOLLAND, RONALD JABLON, RICHARD RICCIO, ARTHUR

BISCHOFF, JAMES GEOGHEGAN, JOHN DUFFY, DANIEL McCRORY,

WILLIAM DEVONEY, ROY WALKER, ALBERT POHL, ROBERT

KEATING, RUSSELL ALONGI, KENNETA BRINGE, JOHN CULLO-

TON, JOHN TOLLEY, JOHN J. MURPHY, HUGH O’MALLEY, CARL

NEUMULLER, JAMES BEGLEY, JAMES MORGAN, WILLIAM

O’BRIEN, RAYMOND GREENWOOD, THOMAS CRONIN, THOMAS

BRADY, TERRENCE McCUE, ROBERT TILL, FRANKLIN CRAW-

FORD, RAYMOND GIEHOOB, DANIEL MORAN, PATRICK LOGAN,

TERRENCE FORBES, RALPH MORETH, JAMES P. BROWN, PAUL

C. CEFFALIO and CHARLES R. LOFTUS, individually and on behalf

of all others similarly situated,.

V.

CITY OF CHICAGO, CHICAGO POLICE DEPARTMENT, RICHARD

J. BRZECZEK and CHARLES H. POUNIAN,

Respondents.

Petitioners,

APPENDIX TO THE PETITIO” FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

JOHN L. GUBBINS*

JEFFREY C. PAULSON

JOHN GUBBINS, LTD.

20 N. Clark St., Suite 2600

Chicago, Illinois 60602

(312) 750-9115

* Counsel of Record Attorneys for Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

-

wee

INDEX TO APPENDIX

Bigby v. City of Chicago, slip opinion, (7th Cir. July

Dn See be Li aed aoheeedetvatinees

Bigby v. City of Chicago, slip opinion, (N.D. III.

OE ha eke dudes sethesnedisees

Dilulio v. Board of Fire and Police Commis-

sioners, 682 F.2d 666 (7th Cir. 1982) ......

PAGE

11

eee

his a oy

: a

ae

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

MAURICE THOELE, et al.,

Petitioners,

vs.

CITY OF CHICAGO, et al.,

Respondents.

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 84-2284

WILLIAM C. BiGBY, et al.,

Plaintiffs,

and

MAURICE THOELE, et al.,

Intervening Plaintiffs-Appellants,

We

CITY OF CHICAGO and

CHICAGO POLICE DEPARTMENT,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 80 C 5246—Prentice H. Marshall, Judge.

ARGUED APRIL 18, 1985—DECIDED JULY 1, 1985

Before CUDAHY and POSNER, Circuit Judges, and PELL,

Senior Circuit Judge.*

* Pursuant to Circuit Rule 16(e) (rehearing en banc, sua sponte,

before decision), this opinion was circulated, before publication, to

all the judges of the court in regular active service, because it

overrules Dilulio v. Board of Fire & Police Comm’rs, 682 F.2d

666 (7th Cir. 1982). No judge voted to hear the case en banc.

App. 2

POSNER, Circuit Judge. A group of black police

sergeants brought suit against the City of Chicago under

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq., alleging that the City had discriminated

against them by refusing to promote them to lieutenant,

because they had failed a lieutenants’ examination which

they contended was racially biased. A group of white and

Hispanic — sergeants was allowed to intervene in the

suit, to challenge the exam on a different ground: that

it — was not related to what a lieutenant does, and

therefore violated the intervenors’ rights under the due

process clause of the Fourteenth Amendment. The district

judge, after a bench trial, held in favor of the plaintiffs

(the black sergeants) but against the intervenors. The

judge’s entire discussion of the intervenors’ claim is as

follows: ‘Although we have found defendants’ 1977 lieu-

tenants examination invalid under Title VII, it does not

follow that it was arbitrary and capricious so 2s to en-

title the intervenors, Maurice Thoele, et al. to xsecover

under the Due Process Clause of the fourteenth amend-

ment. While they may be the beneficiaries of the Bigby

plaintiffs’ victory, they are not entitled to any relief in

their own right.”’ They appeal.

It might seem that as “beneficiaries” of the plaintiffs’

victory (from which, incidentally, the defendants have not

appealed), the intervenors would have no standing to com-

plain that the district court had failed to award them

“relief in their own right”; it might seek that by knock-

ing out the exam the plaintiffs had gotten everything the

intervenors wanted. But the district judge ordered the

immediate promotion of 11 black sergeants to lieutenant.

If he had found that the intervenors’ constitutional rights

had been infringed as well as the plaintiffs’, he surely

would have ordered some of the intervenors promoted im-

mediately, instead or in addition. Their claim is not moot.

The district judge rejected the claim on the ground that

the lieutenants’ examination was not « rbitrary or capri-

cious. But the basis of this conclusion 1s unexplained. The

opinion contains many devastating criticisms of the lieu-

App. 3

tenants’ examination en route to the conclusion, apropos

the black sergeants’ claim, that the exam is not “job

related” within the meaning of cases interpreting Title

VII. It is true that an exam might fail to survive the ex-

acting scrutiny to which Title VII subjects examinations

that have a disproportionate impact on a protected group

such as blacks yet still not be so unreasonable as to create

constitutional doubts unrelated to discrimination. Indeed,

it would be quite odd if Title VII provided the measure

of what is due process of law in public employment. This

must have been what the judge thought. But what is un-

clear from the district judge’s opinion—which has not a

good word to say about the exam—or from the record

before us on this es is why he thought the exam,

though not job-related, was yet not arbitrary, capricious,

or in a word irrational. If it were obvious why, we could

uphold the district judge’s decision — his failure to

explain. But it is not obvious. So if we thought that there

was a constitutional right, unrelated to racial or other dis-

crimination, to a rational test for promotion to a higher

rung in the civil service of a state or municipality, we

would remand the case for the judge to explain why he

thought the lieutenants’ test unreasonable, though not job-

related in a Title VII sense. But we do not think there

is such a right. We first show how we reached this con-

clusion as a matter of principle, and then show that the

case law supports our conclusion notwithstanding the con-

trary precedent of Dilulio v. Board of Fire & Police

Comm ’rs, 682 F.2d 666 (7th Cir. 1982).

The due process clause of the Fourteenth Amendment

forbids a state to deprive anyone of life, liberty, or prop-

erty without due process of law. To make out a case

under the clause one must therefore show first tha: one

was deprived of life, liberty, or property, and second that

the deprivation was brought about without due process

of law. Neither element is present here.

The Supreme Court has held that the job of a tenured

civil servant is property. See, e.g., Cleveland Bd. of Educ.

v. Loudermill, 105 S. Ct. 1487, 1491-92 (1985). So if a City

App. 4

of Chicago policeman, who under the law of Illinois can-

not be fired without cause, see Ill. Rev. Stat. 1981, ch.

24, { 10-1-81.1, is fired, this is a deprivation of property;

and he has only to show that it was done without due

process of law in order to prove a violation of the Four-

teenth Amendment. But these sergeants did not have a

property interest in the rank, which they had not yet at-

tained, of lieutenant. It is true that state law requires

promotions of government employees, including policemen,

to be “on the basis of ascertained merit and seniority in

service and examination.” Ill. Rev. Stat. 1981, ch. 24,

{ 10-1-13; see Chicago Municipal Code ¢{ 25.1-3, 25.1-5 (1977).

(The statutory provisions for police forces in smaller

-- municipalities are slightly different. See Ill. Rev. Stat. 1981,

ch. 24, §§ 10-2.1-6, 10-2.1-15. So far as the issues in this

case are concerned, the current Chicago Municipal Code

(1982) is identical to the 1977 Code in effect when these

sergeants were denied promotion.) The statute and ordi-

nance create an expectation that the examinations used

for promotions in the civil service will be fair but, as the

Illinois courts have held, not so firm and definite an ex-

ctation as to be “property” in a constitutional sense.

, e.g., Sullivan v. Board of Fire & Police Comm’rs,

103 Ill. App. 3d 167, 172, 430 N.E.2d 636, 640 (1981) (con-

struing the provisions relating to smaller municipalities—

provisions actually more protective of promotion rights

than the provisions applicable to Chicago); ef. Confedera-

tion of Police v. City of Chicago, 547 F.2d 375, 376 (7th

Cir. 1977). For it is not the examination that the appli-

cant is interested in—no one likes taking tests—but the

job. And with few lieutenants available no one can have

much confidence of doing well enough on the exam to

become a lieutenant, especially since the grade on the ex-

amination is only one factor that the promoting author-

ities take into account in deciding whether to promote;

the others are seniority and any evidence of merit besides

the examination grade, such as the officer’s efficiency

rating by his superiors. See, e.g., Chicago Municipal Code,

§ 25.1-5(6Xb) (1977); Lenert v. Wilson, 56 Til. App. 2d 325,

206 N.E.2d 294, 297 (1965). One has no “right” te a good

efficiency rating from one’s superior; rating is an exer-

naa

App. 5

cise of the superior’s discretion. See Lenert v. Wilson,

supra, 56 Ill. App. 2d at 332-34, 206 N.E.2d at 298, cf.

Zuelke v. Board of Fire & Police Comm’rs, 79 Ill. App.

3d 1080, 1082, 398 N.E.2d 1080, 1082 (1979). Yet without

such a rating one is most unlikely to be promoted to lieu-

tenant.

Furthermore, the promoting officials are authorized to

choose among the highest-rated applicants, and no criteria

are provided for the choice. See Ill. Rev. Stat. 1981, ch.

24, { 10-1-13; Chicago Municipal Code { 25.1-5(5) (1977).

Construing the counterpart provision in the statute gov-

erning the police forces of smaller municipalities, McCoy

v. Board of Fire & Police Comm’rs, 79 Ill. App. 3d 742,

744, 398 N.E.2d 1020, 1022 (1979), holds that “the pro-

motion of a patrolman to sergeant is one of discretion,”

so that the plaintiff “chad no vested right to promotion.”

The same is true of promotion from sergeant to lieuten-

ant. Indeed it is more strongly true, since discretionary

factors loom larger as one moves up in a hierarchy. Pro-

motion to lieutenant’s rank is not a matter of right and

is not governed by fixed rules which if complied with auto-

matically entitle the applicant to promotion. “To have a

property interest ...a person... must have more than

a unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.”” Board of Regents

v. Roth, 408 U.S. 564, 577 (1972) (emphasis added). That

is missing here.

Nor do we think the intervenors were deprived of their

liberty. There is indeed a concept of liberty of occupa-

tion; it goes back to the eighteenth century, see, e.g.,

Madison, Essay on Property, in 6 Madison, Writings 101

(Hunt ed. 1906 [1792], and is the animating concept be-

hind a number of old decisions in which the Supreme

Court struck down state laws that interfered with that

liberty. See, e.g., Smith v. Texas, 233 U.S. 630, 637-38

(1914); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

Although the Court has since abandoned the idea that the

due process clause is a general charter of economic free-

dom, it has continued to provide limited protection for

liberty of occupation. See, e.g., Hampton v Mow Sun

App. 6

Wong, 426 U.S. 88, 102 (1976). Important examples are

cases decided in the 1950s and early 1960s concerning the

reasonableness of conditions on admission to the bar. See,

e.g., Schware v. Board of Bar Examiners, 353 U.S. 232

(1957). And cases such as Codd v. Velger, 429 US. 624

(1977) (per curiam), which hold that firing a public worker

under conditions that “stigmatize” him may invade his

liberty even if he has no property right in his job, seem

to rest on the idea that stigmatization may prevent him

from getting another position in the same line of work.

See Lawson v. Sheriff of Tippecanoe County, 725 F.2d

1136, 1138-39 (7th Cir. 1984); Bone v. City of Lafayette,

No. 82-1976, slip op. at 6-8 (7th Cir. May 29, 1985); Smith

v. Board of Educ., 708 F.2d 258, 265 (7th Cir. 1983).

But the examination challenged in this case, while it

may prevent some sergeants from becoming lieutenants

in the Chicago police force, does not exclude anyone from

an occupation. To be a policeman is to follow a particular

calling, and to be excluded from that calling is an infringe-

ment of liberty of occupation. But a particular rank in

the police force is not an occupation, just as the army

is not a series of separate occupations, ranging from buck

private to general of the armies, and just as the private

practice of law is not composed of two occupations—

partner and associate. Of course a profession may have

distinct occupations; the medical profession has nurses as

well as doctors. Cf. Smith v. Texas, supra, 233 U.S. at

639. But ranks within an occupation—head nurse versus

rank-and-file nurse, for example—are not “occupations”

themselves; and while preventing someone from advanc-

ing in his occupation can be a cruel deprivation, it would

stretch the idea of liberty of occupation awfully far, it

seems to us, to treat a bar to promotion as a depriva-

tion of that liberty. Cf. Munson v. Friske, 754 F.2d 683,

693 (7th Cir. 1985).

But even if being denied a promotion because one had

flunked an unfair examination could be a deprivation of

liberty within the meaning of the due process clause of

the Fourteenth Amendment, the intervenors would lose;

there was no denial of due process. The usual though not

App. 7

exclusive modern meaning of the term is notice of charges

and an opportunity for a hearing appropriate to the nature

and gravity of those charges. See, e.g., Mathews v.

Eldridge, 424 U.S. 319, 348-49 (1976). There was no denial

of due process in that sense. It is not as if the city had

told the sergeants that they could not take the exam, and

refused to give them a chance to be heard on why they

were being barred. The sergeants are not complaining

about lack of nctice or lack of an opportunity for a hear-

ing or lack of any other procedural safeguards. They com-

plain that the poor design of the examination violates due

process. This has nothing to do with administrative, judi-

cial, arbitral, or any other procedure; it has to do with

the substantive criteria for promotion.

This observation does not end the case, however. Oxy-

moron though it is, “substantive due process” continues

to be a recognized concept of constitutional law. The best

known modern instance is the right to an abortion, see

Roe v. Wade, 410 U.S. 113 (1973), a right that rests on

the due process clause of the Fourteenth Amendment but

that has nothing to do with notice and hearing; but there

are other examples within the general area of the family

and sex. See, e.g., Moore v. City of East Cleveland, 431

U.S. 494 (1977). The appellants in this case have alleged

the denial of another form of substantive due process.

They claim a constitutional right to be tested for promo-

tion by examinations reasonably related to the actual

needs of the position for which they have applied.

We do not believe, however, that this is a valid federal

constitutional claim, even if there is (as we doubt) a sense

in which the appellants may be said to have been deprived

of liberty by being subjected to an unfair test that they

flunked. They may have a claim under state law. Cf.

Burns v. Sheriff's Dept. Merit Comm’n, 86 Ill. App. 3d

226, 407 N.E.2d 1134 (1980); Beard v. Board of Police

Comm’rs, 130 Ill. App. 3d 692, 474 N.E.2d 918 (1985).

Nothing said in this opinion is intended to prejudge that

claim. In fact they appended such a claim as a pendent

to their federal constitutional claim, and we interpret the

district judge’s silence about their state claim as a deci-

App. 8

sion to relinquish pendent jurisdiction over it, a decision

that seems reasonable in the circumstances but that in

any event the intervenors do not challenge in this court.

Whatever the original meaning of “due process of law,”

and whatever the intentions of those who drafted and rati-

fied section 1 of the Fourteenth Amendment, the concept

has been used to invalidate state action unrelated to judi-

cial or administrative fe arene or to specific rights enu-

merated in the Bill of Rights only when that action was

deeply & yt to the feelings of the Supreme Court

Justices. In an earlier day it was action restricting eco-

nomic liberty beyond the narrow bounds thought proper

by the classical economists and the ideologists of laissez-

faire; more recently it has been action restricting freedom

of choice in intimate personal relations. A civil service ex-

amination unfair in the sense not of oppressing some racial

or ethnic group for whose members the examination may

be culturally inaccessible, or even just of flunking more

members of one such group than of another, but of being

a stupidly designed test hopelessly maladapted to the pur-

poses for which it is being given, does not shock the con-

science. To hold that it does would result in making the

federal courts a super Civil Service Commission, review-

ing examinations for promotions in every civil service in

the United States. The federal courts do not need this

additional burden. Cf. Bishop v. Wood, 426 U.S. 341, 349

and n. 14 (1976).

All this is not to say that the Constitution gives black

police sergeants more rights than white ones, by enabling

only blacks to complain in federal court about the reason-

ableness of the examination for police lieutenants. The law

gives more rights to victims of discrimination than to non-

victims; but the victims can be white as well as black.

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273,

280 (1976); Rucker v. Higher Education Aids Bd., 669

F.2d 1179, 1181 (7th Cir. 1982). The intervenors do not

complain of racial discrimination. A federal forum may be

necessary to assure the vindication of constitutional rights

against racial discrimination, but for remedies against a

bad exam a state forum ought to be sufficient. There is,

App. 9

indeed, a conflict between the constitutional rights as-

serted by the plaintiffs and by the intervenors, since, as

suggested in our discussion of mootness, if the intervenors

won their case this might reduce the amount of relief

available to the plaintiffs.

What must give us pause, though, is our decision in

Dilulio v. Board of Fire & Police Comm’rs, 682 F.2d 666

(7th Cir. 1982), which held that white policemen in Illinois

who were not alleging racial discrimination had stated a

claim under the due process clause of the Fourteenth

Amendment just by showing that the test for police ser-

geant which they had flunked did not bear a “direct and

substantial” relationship to a sergeant’s job. Jd. at 669.

We based this conclusion on the Supreme Court’s deci-

sions dealing with liberty of occupation, but we did not

distinguish between exclusion from an entire occupation

and exclusion from a particular position or rank in the

occupation, nor between fair procedure and other ideas

of due process.

Dilulio stands alone except for a single decision by a

district court in this circuit which naturally considered

itself bound by Dilulio. See Ka Nam Kuan v. City of

Chicago, 563 F. Supp. 255, 257 (N.D. Ill. 1983). Occasional

references in other cases to the possibility of a property

interest in promotion merely assume there might be such

an animal, en route to holding that the plaintiff had failed

to prove a violation of the Constitution. See Hermes v.

Hein, 742 F.2d 350, 355 (7th Cir. 1984); Lavash v. Kountze,

604 F.2d 103, 105-06 (1st Cir. 1979) (per curiam); Bara

vy. Aurora Civil Service Comm’n, 580 F. Supp. 212, 214-16

(N.D. Ill. 1983). Many cases are contrary to Dilulio. See,

e.g., Robb v. City of Philadelphia, 733 F.2d 286, 293-94

(3d Cir. 1984) (a case factually almost identical to Dilulio

and to the present case); Clark v. Whiting, 607 F.2d 634,

638, 641 (4th Cir. 1979); Burns v. Sullivan, 619 F.2d 99,

104-05 (1st Cir. 1980); Doyle v. University of Alabama,

680 F.2d 1323, 1326 (11th Cir. 1982); Beitzell v. Jeffrey,

643 F.2d 870, 875-79 (1st Cir. 1981); Meyr v. Board of

Educ., 572 F.2d 1229, 1232 (8th Cir. 1978); cf. Levitt v.

University of Texas, No. 84-1700, slip op. at 4271-72 (5th

App. 10

Cir. May 10, 1985); Sandlin v. Johnson, 643 F.2d 1027

(4th Cir. 1981). The most significant of the cases is Web-

ster v. Raymond, 599 F.2d 793 (7th Cir. 1979), for it was

a previous decision of this circuit, squarely contrary to,

yet not cited in, Dilulio. Webster unanimously rejected

a claim that denial of promotion to a higher rank in the

civil service (in that case, promotion from teacher to prin-

cipal) is a deprivation of liberty or property within the

meaning of the due process clause. See 599 F.2d at

796-802. Begg v. Moffitt, 555 F. Supp. 1344, 1347 n. 7

(N.D. Ill. 1983), tries to reconcile the two cases on the

ground that Webster was about “procedural” due process

and Dilulio about “substantive” due process; but Web-

ster is about substantive due process, too—the court

in Webster said so, see 599 F.2d at 801-02. In Altman v.

Hurst, 734 F.2d 1240, 1243 (7th Cir. 1984) (per curiam)

(dictum), we cited Webster for the proposition “that no

liberty interest is implicated where a plaintiff is denied

a promotion, since he remains free to seek alternate em-

ployment if dissatisfied with his job.”

Under the rules of this circuit a panel decision cannot

be overruled without circulation of the overruling decision,

before publication, to all the judges of the court who are

in active service. See 7th Cir. Rule 16(e). That was not

done in Dilulio; evidently the panel that decided Dilulio

was unaware of Webster. This is not surprising; the briefs

in Dilulio do not cite Webster, and Dilulio was decided

without oral argument (a circumstance in which some will

find an implicit message concerning the value of oral argu-

ment). Naturally the authority of Dilulio is less than it

would be if it had considered and rejected Webster. We

are forced to choose between Webster and Dilulio. We

choose Webster. It accords with the great weight of

authority and the recent understanding of this circuit

reflected in Altman v. Hurst, and expresses the better

view as an original matter.

The judgment of the district court dismissing the claim

of the intervenors is

AFFIRMED.

App. 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 80 C 5246

WILLIAM C. BicBy, et al.,

Plaintiffs,

and

MAURICE THOELE, et al.,

Plaintiffs-Intervenors,

V.

City OF CHICAGO, et al.,

Defendants.

MEMORANDUM OPINION

Prentice H. Marshall, District Judge

This is an action brought by 41 black sergeants (Bigby

plaintiffs) in the Chicago Police Department challenging

the Department’s 1977 lieutenants’ promotional examina-

tion under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §2000e et seq. A class has been cer-

tified pursuant to Rule 23 (bX2) of the Federal Rules of

Civil Procedure in behalf of all black persons who have

been adversely affected by the examination. On the eve

of trial Maurice Thoele and other white and hispanic ser-

geants intervened as plaintiffs contending that tie exami-

nation violated rights guaranteed them under the Due

Process Clause of the fourteenth amendment. The defen-

dants in the case are the City of Chicago, the Superinten-

dent of the Chicago Police Department and the Director

of Personnel of the City of Chicago.

App. 12

This memorandum opinion will stand as our findings of

fact and conclusions of law pursuant to Rule 52(a) of the

Federal Rules of Civil Procedure.

This is a disparate impact case. The basic premises are

well established. See, e¢.g., Griggs v. Duke Power Co., 401

U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S.

405 (1975); Connecticut v. Teal, 102 S [sic].

As the Court said in Teal:

To establish a prima facie case of discrimination, a

plaintiff must first show that the facially neutral em-

ployment practice had a significantly discriminatory

impact. If that showing is made, the employer must

then demonstrate that ‘any given requirement [has]

a manifest relationship to the employment in ques-

tion,’ in order to avoid a finding of discrimination.

102 S. Ct. at 2531.

For the reasons hereinafter stated, we hold that plain-

tiffs proved a prima facie case and that defendants failed

in their burden.

On January 5, 1976, we entered a prohibitory injunction

in United States v. City of Chicago, 411 F. Sup. 218 (N.D.

Ill. 1976), aff'd 549 F. 2d 415 (7th Cir. 1977) dealing with

the employment of patrol officers and the promotion of

sergeants by the Chicago Police Department. Five months

later defendants began preparation of an examination for

the promotion of lieutenants.

The lieutenants’ test was completed in 1977. It is com-

prised of three parts: a written examination, an oral inter-

view, and the average of the applicant’s last four per-

formance ratings as a sergeant. The scores of the three

segments were combined in a 40-30-30 ratio to produce

a composite final score. Applicants were placed on the

final eligibility list in rank c. wr of their composite scores.

The examination was taken by 1,062 persons, 835

(78.63%) were white, 188 (17.7%) were black, 38 (3.58%)

were hispanic and one was asian. Composite scores on the

eligibility list range from a top of 95.91 to 70.

App. 13

The top 108 persons on the list have been promoted in

rank order. Ninety-three (86.11%) are white, eleven

(10.19%) are black and four (3.7%) are hispanic. The overall

rate of promotions for black applicants is 52% of the rate

of promotions for white applicants. If, as defendants have

urged, the top 271 were promoted, the black to white pro-

motion rate would be 66% and if 291 were promoted, the

rate would be 65.5%. These rates demonstrate a disparate

impact under the “80% rule” of the Uniform Guidelines

on Employee Selection Procedures. 29 C.F.R. $1607.4D

(1981). Connecticut v. Teal, 102 S. Ct. 2525, 2529 n. 4

(1982); United States v. City of Chicago, 663 F. 2d 1354,

1357 n. 8 (7th Cir. 1981). Indeed, the disparate impact

under the 80% rule persists as low as 355 on the eligibil-

ity list. When one realizes that the Department has never

promoted more than 245 lieutenants from a particular

roster, the depth of the disparate impact is determinative.

Furthermore, the evidence shows that each component of

the examination had a disparate impact upon black ap-

plicants whose scores were high enough to have a prac-

tical chance of being promoted.

A disproportionate number of white applicants received

scores of 71 and above on the written test: 23 blacks and

150 whites received such a score. The “success rate’’ for

blacks on the written test was 12.23%. That is 68% of

the “success rate” for whites which was 17.69%.

The scores from the oral interviews likewise had a

disparate impact under the 80% rule for scores of 88 and

above. Fifth-eight blacks and 301 whites received scores

of 88 and above, the “success rate” for blacks (10.22%)

is 78% of the “success rate” for whites (13.12%).

Documents provided by the defendants established that

four of the raters at the oral boards gave consistently

lower scores to blacks than to whites. Defendants’ expert,

Alvares, recoguzed this disparity. Plaintiffs’ evidentiary

analysis demonstrated that the disparate impact or the

oral scores was attributable to the four low raters.

App. 14

The written and oral scores were combined to produce

70 points of the maximum final score of 100. The com-

bined written and oral scores had a disparate impact

under the 80% rule rule for scores of 58 and above; 47

blacks and 261 whites received composite scores of 58 and

above. The “success rate” for blacks (25.27%) is 78% of

the ‘“‘success rate” for whites (32.30%).

The performance ratings showed a disparate impact

under the 80% rule for scores of 88 and above. Eighty-

six blacks and 476 whites received scores of 88 and above.

The “success rate” for blacks (46.24%) is 78.5% of the

“success rate” for whites (58.91%).

The final cumulative scores have a disparate impact

under the 80% rule for scores of 84 and above. Fifty-three

blacks and 302 whites received such scores. The ‘success

rate’”’ for blacks (28.49%) is 76% of the “success rate’”’ for

whites (37.38%). Defendants’ suggestion that the disparity

is reduced as one progresses down the roster to the 271st

and 291st position has been previously noted as erroneous

for there the black-white success ratio is 66% and 65.5%.

Defendant urges that disparities in the high 60 and 70

percentiles should not be regarded by the court as es-

tablishing a prima facie case of discrimination under

Griggs, Albemarle and Teal. Their position loses sight of

the fact that the Supreme Court in Teal and the court

of appeals for this circuit in United States v. City of Chi-

cago, 663 F. 2d 1354, 1857 n. 8 have approved the Uni-

form 80% guideline. Furthermore, a 4/5 disparity, which

is what the 80% rule tolerates, is itself a significant dis-

parate impact. The line is a generous one which should

not be watered down by lax judicial application.

Defendants argue that a conclusion that plaintiffs have

proved a prima facie case on the basis of the foregoing

Statistics is contrary to our conclusion in United States

v. City of Chicago, 411 F. Supp. 218, 239 (1976) that the

1970 lieutenants’ examination and performance ratings

were not impermissibly discriminatory. At the time of our

1976 decision, the Uniform 80% rule had not been promul-

App. 15

gated and, accordingly, it had not been approved by the

Supreme Court and the court of appeals. Furthermore,

the proof here is of greater precision and persuasion that

was presented with respect to the 1970 examination. We

hold that plaintiffs have proved a prima facie case in the

present proceeding.

Indeed, defendants recognized as much when, more than

a year prior to trial, they did not deny plaintiffs’ Rule

36 request that ‘examination number 7081 [the lieuten-

ants’ examination] . . . had a disparate impact upon black

applicants.” By their failure to deny that request, defen-

dants admitted it. That was a judicial admission by the

defendants that the examination had a disparate impact

upon black applicants. We question their ability to con-

tradict it now. Rainbolt v. Johnson, 669 F. 2d 767, 768

(D.C. Cir. 1981). “A judicial admission, deliberately drafted

by counsel for the express purpose of limiting the facts

and issues, is traditionally regarded as conclusive, and an

admission under Rule 36 falls into this category.” 8 C.

Wright & A. Miller, Federal Practice and Procedure,

§2264, p. 743 (footnote omitted). “Any evidence inconsis-

tent with the stipulated admissions cannot be considered

by the court.” Shakman v. Democratic Organization of

Cook County, 481 F. Supp. 1815, 1346 n. 35 (N.D. II.

1979).

Apart from the Rule 36 admission, however, plaintiffs

have established a prima facie case placing upon defen-

dants the burden of demonstrating that “any given re-

quirement [has] a manifest relationship to the employment

in question.” Griggs, 401 U.S. at 432. The test must be

“predictive of or significantly correlated with important

elements of work behavior which comprise or are rele-

vant to the job or jobs for which candidates are being

evaluated.” Albemarle, 422 U.S. at 431. At trial, defen-

dants sought to meet this burden with proof of content

validity.

When a claim of content validity is made, the employer

must show that the tasks on the examination substantially

App. 16

represent equivalent tasks on the job. United States v.

City of Chicago, 549 F. 2d 415, 434 (7th Cir. 1977). Such

a showing must be preceded by a thorough task analysis

of the job to be performed. United States v. City of Chi-

cago, 573 F. 2d 416, 425 (7th Cir. 1978) (Fire Department

litigation). The evidence shows substantial flaws in defen-

dants’ “task analysis’. In addition, the examination fails

to measure relevant job functions.

According to defendants’ evidence, the job analysis in-

cluded 30 to 40 interviews with field lieutenants, during

which a questionnaire was completed. Thereafter another

questionnaire was administered to 20 lieutenants. Those

given the first questionnaire were limited to field lieu-

tenants even though lieutenants are engaged in staff and

non-field work. Furthermore, the persons who filled out

the questionnaire were the “best men” available, resulting

in a non-representative sample.

The second defect in the job analysis was defendants’

failure to retain any source data. “It is essential that the

sample design, the questionnaires and the manner of inter-

viewing meet the standards of objective surveying and

statistical techniques.” Pittsburgh Press Club v. United

States, 579 F. 2d 751, 758 (8d Cir. 1978). Incredibly, de-

fendants in the throes of the 1976 employment/promotion

litigation, did not retain any of the completed question-

naires and did not even have a copy of the questionnaire

that was actually administered. Nor did defendants main-

tain records showing the identity of the persons who filled

out the questionnaire. Thus, there is no beginning “record

of validation’ United States v. City of Chicago, 549 F.

2d 415, 482 (7th Cir. 1977).

After the job analysis had been completed, defendants’

next step was to determine how the dimensions of the job

of lieutenant should be measured. Initially, they planned

a written test of job knowledge as a screening device to

be followed by an ‘‘assessment center’’.

The assessment center approach was abandoned as too

expensive, although no estimate of the costs involved in

App. 17

using that technique was ever prepared. Defendants’ out-

side expert, Alvares, had concluded that all dimensions

of the job could not be measured by a written test. There-

fore, oral interviews were used in an attempt to measure

dimensions which were not covered in the written exam.

Alvares conceded, however, that there is no data which

shows that the oral scores actually measured these dimen-

sions or indeed measured anything other than “halo.”

The final component of the exam—performance ratings—

was used without any data to show that the ratings

measured actual performance. Defendants were explicit-

ly warned by Alvares that “the justification for the per-

formance evaluation is weak.” (Plaintiffs’ exhibit 15). He

also advised against using any performance rating given

after y announcement of the exam, but that advice was

ignored.

The written test consists of 84 multiple choice questions.

Information from department “general orders” was used

as the source of the questions. The evidence is in total

disarray as to how and by whom the general orders were

selected. A panel of high ranking “experts” was recruited,

but they were not provided with copies of the orders.

They were given a check list keyed to the general orders.

But the checklists could not be found and they have never

been produced. Thus the basic source of the written ex-

amination is a mystery.

Equally unanswered is the question, Who wrote the ac-

tual test? According to Alvares, all of the questions used

on the written exam were written by non-police graduate -

students at Bowling Green University where Alvares is

a professor. According to defendants’ witness Joyce, some

of the questions were prepared by staff members of the

Department of Personnel. Yet another version was offered

by Deputy Chief of Patrol Charles Pepp who testified that

he along with other high ranking officials prepared ques-

tions for the written test.

It is equally unclear who reviewed the multiple choice

questions before they were incorporated in the written

App. 18

examinations. When Joyce was deposed in 1981, he iden-

tified Sam Nolan, Fred Rice, Thomas Lyons, James Rior-

dan, and Patrick Needham, as the high ranking police of-

ficers who reviewed the written test questions. But Nolan,

Rice and Lyons each denied having reviewed the written

exam. At trial, Joyce explained the contradiction by his

“faulty” memory. He then stated that Nolan (contrary to

Nolan’s testimony), Needham, Spiotto and Killackey were

the reviewers.

Documentary evidence produced by defendants indicates

that 122 questions were prepared at Bowling Green and

reviewed by Needham, and Spiotto. Their efforts were,

according to Joyce, incorporated into a loose-leaf notebook

which was marked defendants’ exhibit 5. When Needham

testified, he stated that he was not familiar with the

notebook.

The effectiveness of the screeing process by Needham

and Spiotto was dubious. Of the 84 questions used on the

exam, Needham and Spiotto were unable to answer cor-

rectly 17. In his deposition (admissible as the admission

of defendant City), Needham described some of the ques-

tions as “‘silly stuff’ and stated that “most of these ques-

tions I would have pitched if I had seen them.” The test

was “not what we would have liked by any stretch of

the imagination.”

In preparation for trial, plaintiffs asked Needham and

four other high ranking police officials to review the 84

test questions actually used. They could agree that only

11 of the 84 questions were very important for a lieuten-

ant to know. Thus, as in Firefighters’ Institute v. City

of St. Louis, 616 F. 2d 350 (8th Cir. 1980), it appears that

“the examination measured items of knowledge that were

not necessary for successful performance of [the] job.”

An important part of test validation is the “retransla-

tion” of test iteins to job dimensions. Alvares and Joyce

undertook this task. Their differences are so extreme as

to border on the ludicrous. Alvares found 42 questions

related to dimension number 11 while Joyce found none;

App. 19

Joyce found 39 items related to dimension number 3 and

Alvares found 19. The only inference that can be drawn

from the retransiation is that guess and conjecture were

ee a between the items and the dimensions to

2 tested.

The evidence presented at trial demonstrates that high-

er scores do not necessarily dem .strate greater knowl-

edge of significant policies and pr cedures of the Depart-

ment. Virtually the entire difference in individual final

scores on the written test is attributable to only 48 of

the 84 questions. They are “significantly correlated”’ with

the final score. The disparate impact of the written test

arises solely from the “significant” questions. According-

ly, defendants must establish that the validity of the test

is enhanced by these questions. The evidence was to the

contrary.

As previously noted, plaintiffs requested Needham and

four other high ranking police officers to review the ques-

tions on the exam. These experts concluded that at least

24 of the 48 significant questions failed to measure im-

portant aspects of the job of lieutenant in a reliable

manner.

In his review of the results of the lieutenants’ exami-

nation—a review which he undertook while employed by

the City in its Department of Personnel—Joseph Schreiner

conciuded that the written score ‘“‘may not truly repre-

sent any meaningful construct.” The evidence presented

at trial is in accord with Shreiner’s finding: there is no

basis to conclude that the scores on the written test had

“a manifest relationship to the employment in question.”

Griggs, 401 U.S. at 482.

The oral interviews were used in an attempt to measure

dimensions of the lieutenants job which were not trans-

lated in the written test. Defendants’ expert Alvares con-

ceded, however, that there is no data to show that the

dimensions were actually measured by the oral interviews.

Furthermore, the performance of the raters was doubt-

ful. As stated in one of defendants’ internal reports (plain-

tiffs’ exhibit 60):

App. 20

The quality of the rater’s judgment is suspect be-

cause individual raters have extremely consistent and

reliable assessments of a candidate’s ability, but the

assessment between raters agree poorly. It would re-

quire nine raters to attain internal consistency reli-

ability of .90, given this poor agreement. Though there

were ten separate scales on the orals, they effectively

measure only one global ability assessment.

The raters were instructed to ask verbatim the questions

which had been written at Bowling Green. As Alvares

testified, the more unstructured an interview, the less

valid its results. A training session was held to insure

that the raters followed these instructions. But not all of

the raters attended the training session. In addition, the

evidence shows that the instructions were not followed

by all of the raters. The evidence is that the interviews

concerned matters other than the questions and were

shorter than the time allotted in the instructions.

Once again, crucial documents relating to the oral boards

were not retained by defendants. Over Alvares’ objection,

background information about applicants was provided to

the raters at each oral interview. Alvares never saw the

form used to provide this information and defendants

failed to produce any of the forms during discovery or

trial. Although raters were not to have known the results

on the written examination, one candidate testified that

his written scores were discussed by the panel at his oral

interview.

Finally, as previously noted, documents which were pro-

vided by the defendants demonstrated that four of the

raters at the oral boards gave consistently lower scores

to blacks than whites. Plaintiffs have demonstrated that

the disparate impact of the oral scores was attributable

to these four raters.

In his October 12, 1978 memorandum (plaintiffs’ exhibit

15), Alvares suggested that the race differences on the

oral scores “best . . . remain undiscussed.” Defendants

failed to adjust for the race differences. Their failure

destroys any claim of validity for the oral scores.

App. 21

In the earlier litigation concerning the promotion of ser-

geants, we expressed some concern about performance

ratings in promotional decisions. Initially, we enjoined

their use. In the final decision, we vacated that injunc-

tion. In that litigation, we concluded, in the absence of

the Uniform 80% rule, that the performance ratings used

for the promotion of sergeants were not discriminatory.

Here we have concluded, using the 80% rule, that plain-

tiffs have established a prima facie case that the perfor-

mance ratings do have a discriminatory disparate impact

upon black lieutenant applicants. That being the case, the

burden rests upon defendants to validate the performance

ratings. They have failed to do so.

Defendants’ consultant Alvares pointed out that “the

justification for the performance evaluation is weak.”

(Plaintiffs’ exhibit 15.) He aiso testified that there is no

data to show that the performance ratings actually meas-

ure performance.

The evidence shows that the fourth rating was given

following the announcement of the lieutenants’ promotion

exam so that the rater knew the potential effect of the

rating.

The ratings are subject to forced averaging at 85 (on

a scale of 100). Performance ratings are frequently decided

upon at a staff meeting. A global assessment is given to

a sergeant and subscale ratings are then calculated to

average the firal rating.

However, certain high cluster units are exempt from

the forced average. Here all can receive excellent marks.

Former Superintendent Brzeczek conceded that perfor-

mance ratings are influenced by job assignments.

In most units, the average performance score is 87.8,

but in the high cluster units, the average score is over

92.4. The higher scores in the high cluster units have a

great impact upon the final rank on the lieutenants’ test.

The 4.6 point increase in performance ratings would be

reflected in a 1.38 point increase in the final score which

would move a person from 108 to number 57 on the list.

App. 22

Blacks in high cluster units are not rated in the same

way as are whites. Although 36 of the highest scoring

150 sergeants came from the high cluster units, only one

of these 36 is a black. High cluster assignments are not

7 in. ‘ti are learned about and applied for by word

of mouth.

Defendants have failed to establish that the performance

rating system is related to performance as a sergeant.

The relative weight given to each of the segments of

a multi-segment exam such as this, is of great importance

in assessing a claim of content validity. The draft of de-

fendants’ final validation study acknowledges that the

relative weights were “arbitrarily assigned.” (Plaintiffs’

exhibit 16 at 5.) The evidence at trial showed that the

40-30-30 weight is without emperical basis and is “only

so much window dressing.” (Plaintiffs’ exhibit 60 at 2.)

As explained by Joseph Schreiner in a memorandum he

authored while employed by the City in its Department

of Personnel:

... the relative ratios between the standard devia-

tions of the 3 test components is indicative of the

relative importance of the 3 components to the total

score. The average component score has no effect on

the final ranking; only the component standard devia-

tion does. The multiplier weight has no effect on the

true importance of a component to the total score,

except to the extent it modifies the component’s

standard deviation. Thus, the .4 - .3 - .38 weighting

is only so much window dressing, for it is not in-

dicative of the true importance of each of the com-

ponents to the final score.

* * *

All other things being equal, it will be best for a can-

didate’s final score if he did well on the written,

rather than the orals, or the efficiencies, for the scor-

ing procedure allows this higher standing to be trans-

lated into more points. In terms of influencing the

final score, the relative importance of the three is

App. 23

not 4-3-3. It is 6-3-2. (emphasis in original) (Plaintiffs’

exhibit 60 at 2-3.)

More than three-quarters of the variance in final scores

is attributed to the written score alone. Forty-eight of

the 84 questions on the written exam explain 95% of the

variance in written scores. Half of those 48 questions were

poorly written or not job related by the five departmental

experts recruited by plaintiffs. There can be little doubt

of the lack of job relatedness in the final score. It was

for this reason that Alvares recommended “that the less

said [about how the scores are combined at the end of

the process] the better.” (Plaintiffs’ exhibit 15).

Defendant’s expert Alvares acknowledged that there

was a lack of any emperical basis for the combination of

scores. This —_ with the extreme influence which the

written scores had on final rankings demonstrates that

the combination of three scores on tests which were not

job related did not produce a job related final score.

The final list of eligibles shows that 41 applicants (rang-

ing in final rank from 89 to 130) received scores between

88 and 89. Rank order promotion could result in an ap-

plicant with a score of 88.53 being selected over an ap-

plicant with a score of 88.49. This difference in scores in

infinitesimal. It is less than one question on the written

test. It could be the result of a lucky guess or a one point

difference in a single performance rating. As the defen-

dant Pounian conceded, there is no way to tell that a per-

son with a score of 88.53 would be a better lieutenant

than one with a score of 88.49.

But the vice here is not so superficial as 108 vs. 109.

Defendants concede that they could not justify a decision

based upon such miniscule differences in final scores. But

they are aiso unable to justify the promotion of the top

108 of the list over the next 108. As their consultant

Alvares testified, there is no data to show that the first’

108 on the list will be better lieutenants than the next

108. Nor, of course, is there any data from which one

could say whether number 216 would be better or not

as good as number 1.

App. 24

The Uniform Guidelines require that an employer show

“that a higher score . . . is likely to result in better job

performance” in order for scores to be used in rank order.

Uniform Guidelines, §14(CX9). We have previously adopted

this standard when we held that in order to establish

validity the defendants must demonstrate that scores are

“a valid predictor of performance on the job.” United

States v. City of Chicago, 385 F. Supp. 548, 559 (N.D.

Ill. 1974). Such evidence is lacking here.

Rank ordering satisfies a felt need for objectivity, but

it does not necessarily select better job performers. In

some circumstances, the virtues of objectivity may justify

the inherent artificiality of the substantively deficient

distinctions being made. But when test scores have a

disparate racial impact, an employer violates Title VII if

he uses them in ways that lack significant relationship to

job performances. Guardians Association of New York

City v. Civil Service Commission, 630 F. 2d 79, 100 (2nd

Cir. 1980).

Emperical evidence is necessary to validate rank order

selection from a test which has a disparate racial impact.

Firefighters Institute v. City of St. Louis, 616 F. 2d 350,

358 (8th Cir. 1980). The complete absence of any evidence

to justify rank order promotion requires that the prac-

tice be disapproved.

Although we have found defendants’ 1977 lieutenants

examination invalid under Title VII, it does not follow

that it was arbitrary and capricious so as to entitle the

intervenors, Maurice Thoele, et al. to recover under the

Due Process Clause of the fourteenth amendment. While

they may be the beneficiaries of the Bigby plaintiffs’ vic-

tory, they are not entitled to any relief in their own right.

All members of the Bigby class have been denied equal

employment opportunities contrary to Title VII of the

Civil Rights Act of 1964, as amended. The basic remedy

for this discrimination is an equalization of promotions.

There is presently pending a motion by defendants to pro-

mote 40 persons to the rank of lieutenant from the 1970

App. 25

list. The first 11 should be members of the Bigby class

in their rank order on the eligibility roster. Thereafter,

the promotions should be made in accordance with the

ratios of the applicant pool: 78.63% white, 17.7% black,

and 3.58% hispanic.

The immediate promotion of 11 class members is neces-

sary to undo the disparate impact of promotions already

made. Only 11 of the 108 persons promoted—10.18%—have

been black. The immediate promotions of 11 class mem-

bers will bring the black proportion to 18.18% which is

in line with the 17.7% black composition of the applicant

pool.

Another important element of the remedy provided by

Title VII is back pay. Albemarle Paper Co. v. Moody,

422 U.S. 405, 421 (1975). Because it is impossible to deter-

mine which class members would have been promoted if

defendants that employed a job related test, class back

pay is appropriate. Stewart v. General Motors, 542 F. 2d

445, 452 (7th Cir. 1977). The amount of back pay to be

distributed to the class is based upon the loss to the class

as a result of the discriminatory selection process. Hameed

v. International Association, 637 F. 2d 506, 520 (8th Cir.

1980). Plaintiff urges that each class member should re-

ceive an aliquot share of the class back pay pool.

Defendants, concentrating on liability, have not re-

sponded to plaintiffs’ proposed back pay formula. They

should promptly do so in order that the back pay may

be embraced in the final decree, which we direct plain-

tiffs to present.

One additional remedy is called for in light of the record

in this case: monitoring. The facts surrounding the prep-

aration, documentation and analysis of the lieutenants’ ex-

amination make plain that careful monitoring of future test

development is essential. The need for monitoring is made

evident by the circumstances surrounding the defendants’

production and failure to produce crucial documents dur-

ing the course of discovery and trial.

App. 26

Defendants’ witness Joyce testified that he had located

a set of general orders which had been used in the prep-

aration of the exam, and that he had delivered the docu-

ments to defendants’ counsel. The documents were not

produced prior te trial nor were they referred to in de-

fendants’ response to plaintiff’s rule 34 request. Follow-

ing Joyce’s testimony, we directed an inquiry to counsel

who responded that, ‘everything that I had I turned over,

as far as I know, and I do not have any such set of gen-

eral orders in my file.” (Tr. 500.) We then made plain that

a set of general orders were crucial to defendants’ case.

Magically, the general orders were produced the follow-

ing day! Later, Joyce testified that the documents had

just been discovered ‘sometime last week.” (Tr. 1158.)

Defendants’ failure timely to produce documents is com-

pounded by their policy of non-retention of crucial docu-

ments: the forms rating the importance of general orders,

questionnaires used in the job analysis, rosters of

who participated in the surveys, the summary of back-

ground information used at oral interviews, and finally,

the Alvares memo in which he expressed his doubts about

the validity of the examination. (Plaintiff's exhibit 15.)

Although addressed to defendant Pounian and then his

colleagues Joan Cole and Joyce, none could recall receiving

it. The contents of the memo were noteworthy. Alvares

called defendants’ attention to the lack of support for the

use of performance ratings, the problems involved in the

arbitrary combination of the written, oral and performance

scores, and the existence of raters who favored whites

over minorities. Prior experiences in this litigation leave

us with nagging doubts as to the professed ignorance of

the memo.

Certain it is that the Alvares memorandum was revised

to “cover everything in as positive a light as possible.”

(Plaintiffs’ exhibit 15.) Thus, the language in the draft—

that the adequacy of content validation “is still a matter

of emperical speculation’”’ was removed from the final re-

port. In addition, Alvares’ characterization of the 40-30-30

weights as “arbitrary” was excised because it was “too

App. 27

strong.” (Tr. 150.) Also omitted was Alvares’ statement

that “it was impossible to distinguish between the relative

importance” or the orals and performance ratings. Defen-

dant Pounian claimed not to know why this phrase was

crossed out. (Jd. 155). Finally, while the draft recognized

the “artificial ‘game-playing’ that frequently happens when

individuals try to raise their evaluations immediately prior

to the exam,” (Plaintiffs’ exhibit 15 at 8), this criticism

is nowhere contained in the final report.

It was the revised final report which defendants pro-

duced for plaintiffs’ inspection. The original draft would

never have come to light had it not been that Alvares was

called upon to produce documents by way of subpoena.

Scmewhat akin to the “non-retention policy” is defen-

dants’ failure to documents important activities in the

preparation of the examin ‘ion. Much of the work sup-

posedly done in preparing ‘he test can only be recon-

structed from the testimony of a witness who acknowl-

edged that his memory is “faulty.” (Tr. 1151.) The identity

of many of those who participated in the preparation of

the exam is a total mystery and there is conflict among

the testimony of high ranking officers with regard to their

participation. We are utterly at a loss to comprehend how

defendants, having been found to have violated Title VII

just five months before they commenced the preparation

of this examination, could be so neglectful in their record-

keeping with respect to this examination.

Finally, the evidence shows that defendants have nade

little or no use of their sophisticated computer capacity.

Important analyses that could have been performed were

not performed. And those that were undertaken were

either ignored or undertaken solely to defend this case.

No adequate computer analysis was made of the perfor-

mance ratings. Nor was any evaluation of the disparate

impact of each component of the examination undertaken.

Defendants virtually ignored the complex analysis under-

taken by Alvares of the oral scores in his findings that

some raters gave significantly lower scores to blacks.

App. 28

The evidence in the case requires monitoring to ensure

“that a fair test can be created without substantial fur-

ther delay.” Castro v. Beecher, 459 F. 2d 715, 738 (1st

Cir. 1972). We reserve at this time articulating the precise

dimensions of the monitoring relief. One form worthy of

consideration by the parties is that invoked in Firefighters

Institute v. City of St. Louis, 616 F. 2d 350, 368 (8th Cir.

1980). The parties must work together to develop a valid

examination. Defendants should disclose to plaintiffs’

counsel and experts, under an appropriate protective

order, all steps involved in the test development. Plain-

tiffs’ counsel and their experts should be invited to all

planning meetings, and should receive copies of all reports

and memoranda generated in the preparation of the ex-

amination. Plaintiffs’ counsel should be permitted to ad-

vance constructive criticisms. To ensure that defendants

do not again embark on a course calculated to be indefen-

sible under Title VII, we should retain jurisdiction over

future test developments.

Defendants’ pending petition to modify the injunction

prohibiting promotions to the rank of lieutenant of police

and for permission to promote 40 sergeants to the rank

of lieutenant in rank order from the existing roster is

denied. Plaintiffs’ counsel is directed to present a decree

in conformity with the views expressed herein with notice

to defendants.

ENTER:

/s/ Prentice H. Marshall

District Judge

DATED: April 18, 1984.

App. 29

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Name of Presiding Judge,

Honorable PRENTICE H. MARSHALL

Cause No. 80 C 5246 Date April 18, 1984

Title of Cause WILLIAM C. BicBy, et al. and MAURICE

THOELE, et al. v. City OF Cuicaco, et al.

ORDER

Defendants’ pending petition to modify the injunction

prohibiting promotions to the rank of lieutenant of police

and for permission to promote 40 sergeants to the rank

of lieutenant in rank order from the existing roster is

denied. Plaintiffs’ counsel is directed to present a decree

in conformity with the views expressed in the attached

opinion with notice to defendants. (DRAFT)

/s/ PRENTICE H. MARSHALL

App. 30

Domenic DiIULIO, et al.,

Plaintiffs-Appellants,

V.

BOARD OF FIRE AND POLICE COMMISSIONERS

OF the CITY OF NORTHLAKE, et al., Defendants-

Appellees.

No. 80-1966.

United States Court of Appeals,

Seventh Circuit.

Submitted April 6, 1982

Decided June 30, 1982.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge,

and CUDAHY, Circuit Judge.

PELL, Circuit Judge.

At issue in this case is the constitutional validity of an

examination required for the promotion of appellants,

police patrolmen, to the position of police sergeant.’

I

In our appraisal of appellants’ claims we must accept

their version of the facts properly before the district court

because that court granted summary judgment against

them.2 Bishop v. Wood, 426 U.S. 341, 345, 347, 96 S.Ct.

2074, 2077, 2078, 48 L.Ed.2d 684 (1976).

1 The action was brought pursuant to 42 U.S.C. § 1983 and the

due process and equal protection clauses of the Fourteenth Amend-

ment of the United States Constitution. Dam , as well as

declaratory and injunctive relief, are being sought.

2 In granting summary judgment for appellees the district court

was required to resolve all ey: disputes as to material facts

in favor of appellants. Fed.R.Civ.P. 5&c).

App. 31

Appellants were hired prior to December 10, 1977, as

police patrolmen by the Board of Fire and Police Commis-

sioners of the City of Northlake, Illinois. Promotion within

the Northlake Police Department is governed by state law

and the Rules and Regulations of the Board of Fire and

Police Commissioners of the City of Northlake (the

Board), Jll.Rev.Stat. ch. 24, § 10-2.1-1 et seg., pursuant to

which, promotions are based ape merit, seniority, and

competitive examinations. In all cases where it is prac-

ticable, vacancies are to be filled by promotion. A pro-

motion roster must be prepared based on the competitive

examinations, ascertained merit, and’ seniority. Vacancies

must be filled by one of the three candidates at the top

of the roster, and a high ranking candicate cannot be

passed over more than twice.

“(In determining next in order of rank in promotional

examinations, . . . [the Board] extend[s] the examination

successively through all the orders of rank in the services

in an endeavor to qualify suitable eligible or eligibles for

the vacancy or vacancies existing before extending the

examination to the general public.’’ And “{njo examina-

tion shall be given if a vacancy exists at that time and

an eligibility list is in existence.” The names of candidates

on the promotional roster may be removed by the Board

after two years only if all existing vacancies are filled

prior to cancellation. Jll.Rev.Stat. ch. 24, § 10-1-13.

The competitive written promotional exam accounts for

55% of the total score in the promotional scheme.* A score

of 70 is required to pass the written exam. It is statutorily

provided that the examination shall be conducted by the

Board and that the “examinations shall be practical in

character and relate to the matters which will fairly test

the capacity of the persons examined to discharge the

duties of the positions to which they seek [promotion].”’

[ll.Rev.Stat. ch. 24, 10-2.1-6.

8’ The other factors in the promotional scheme are ascertained

merit and seniority in service.

App. 32

On December 10, 1977, the Board held a promotional

examination for the rank of sergeant.* The plaintiffs, seek-

ing promotion to the rank, unsuccessfully participated in

said examination.®

Appellants’ cause of action is based on their claim that

the promotional examination was “arbitrary, capricious,

and discriminatory and lacked and was devoid and not in

furtherance of any substantial, rational, reasonable an [sic]

or compelling, relationship to any legitimate promotional

scheme for the rank of sergeant, purpose or objective, in

violation and derogation of due process of law and the

equal protection of the laws guaranteed under the Four-

teenth Amendment . . . because it was not validated nor

job related.’® This case is not moot as we cannot state

with assurance that there is no reasonable expectation

that the alleged violation will recur, nor have interim

relief or events completely and irrevocably eradicated the

effects of the alleged violation. County of L. A. v. Davis,

—_ 625, 631, 99 S.Ct. 1379, 1883, 59 L.Ed.2d 642

1979).

4 The Board stated that since 1970 it has used independent test-

ing agencies to develop and conduct the written promotion examl-

nations.

5 Three plaintiffs did not achieve the minimum score necessary

for placement on the promotion roster. Our plaintiff passed the

examination and was ranked seventh on the promotion roster.

6 Appellants cite specific questions contained in the promotional

exam which they argue are representative cf the examination’s

alleged lack of job relatedness or validity: “a. Would you drink

blood if you had to? b. Do you believe God has talked to you per-

sonally? c. When you wake up in the morning, is your heart beat-

ing? . . . The above questions represent approximately 450 similar

questions that had to be answered either as never, most never,

probably not, probably, most probably, more likely . . . none of

the questions related to police work . . . . [Some of the other cited

questions defly] a correct answer without requiring the examinee

to explain his answer. . . . [Other cited] questions required a self-

evaluation by the examinee which evaluation was self-opinionated

and would have no bearing on his performance as a police of-

ficer. . . . [And] the last section of the written examination was

not validated or job related in that it required knowledge of crimes

that police officers do not ordinarily encounter [examples cited].”

— eee

App. 33

II

To satisfy the prerequisite for an assertion of the consti-

tutional requirements of due process, a party must impli-

cate a protected interest in either life, liberty, or prop-

erty. Board of Regents v. Roth, 408 U.S. 564, 569, 570, 571,

92 S.Ct. 2701, 2705, 2706, 33 L.Ed.2d 548 (1972). The dis-

trict court disposed of appellants’ due process claim by

concluding that since state law does not grant appellants

“a proprietary interest in a validated or otherwise certi-

fied job-related promotional examination, it is clear that

no constitutionally protected interests are involved in the

present matter.” We believe that the district court’s sole

focus on a property interest without regard to a liberty

interest was in error. Appellants’ promotion was not a

matter subject to the Board’s grace, nor was it a matter

left to the unfettered discretion of the Board. Compare,

Board of Regents v. Roth, 408 U.S. at 567, 92 S.Ct. at

2704. As we explained in Part I, the promotion scheme

was based on evaluation of merit, seniority, and com-

petitive examination. While the state can require high

standards of qualifications, these standards must have a

rational connection with the applicant’s fitness or capacity

to be a police sergeant. Schware v. Board of Bar Ex-

aminers, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).

Attaching unreasonable and arbitrary ~equirements is vio-

lative of constitutional due process. Smith v. Texas, 233

U.S. 630, 639, 34 S.Ct. 681, 683, 58 L.Ed. 1129 (1914);

Smith v. Alabama, 124 U.S. 465, 480, 8 S.Ct. 564, 570,

31 L.Ed. 508 (1888); State v. Walker, 48 Wash. 8, 92 P.

775 (1907).7 In the instant case, at issue is not the state’s

right to require an examination, but the rational relation

between the particular questions formulating the exami-

7 Of course the Fourteenth 4..-*ment applies only to govern-

ment actions. It is conceded h. hat appellees have acted pur-

suant to authority conferred by s-ate law. See Part I, supra. The

limitation against arbitrary action restricts the power of a state

“no matter by what organ it acts.” Missouri v. Dockery, 191 U.S.

165, 24 S.Ct. 58, 48 L.Ed. 133 (1908).

App. 34

nation and the functions of the job of police sergeant. We

hold that appellants have sufficiently implicated a liberty

interest in promotion which cannot be denied without con-

stitutional due process.®

While the state may test a person for the job, it may

not test a person in the abstract. Constitutional due

process guarantees that no person will be arbitrarily

deprived by the government of his liberty to engage in

any occupation. “(T]he liberty guaranteed by the Four-

teenth Amendment . . . without doubt . . . denotes not

merely freedom from bodily restraint but also the right

of the individual . . . to engage in any of the common

occupations of life. . . .” Meyer v. Nebraska, 262 U.S.

390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), cited in Board

of Regents v. Roth, 408 U.S. at 572, 92 S.Ct. at 2706;

Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct.

1895, 1904, 48 L.Ed.2d 495 (1976); Traux v. Raich, 239

U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915). In Graves

v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331

(1926), the Supreme Court upheld the constitutionality of

a state statute prohibiting the practice of denistry without

a diploma from a dental college of good standing, as

against the contention that the requirement violated con-

stitutional due process. The Court did not uphold the re-

quirement of a diploma per se, but rather the rationale

for requiring a particular type of diploma in that case.

As the Court stated, “clearly the fact that an applicant

for a license holds a diploma from a reputable dental col-

lege has a direct and substantial relation to his qualifi-

cation to practice dentistry.” Id. at 428, 47 S.Ct. at 123

(emphasis added).

8 “If (a state] purported to confer arbitrary discretion to with-

hold a license, or to impose conditions which have no relation to

the applicant’s qualifications to practice [a profession], the statute

would, of course, violate the due process clause of the Fourteenth

Amendment.” Douglas v. Noble, 261 U.S. 165 at 168, 43 S.Ct. 303

at 304, 67 L.Ed. 590.

SOR > ee

App. 35

Similarly, at issue in the instant case is whether the

particular promotion examination has a direct and substan-

tial relation to appellants’ qualifications to be police

sergeants.® In Konigsberg v. State Bar of California, 366

U.S. 36, 81, S.Ct. 997, 6 L.Ed.2d 105 (1961), (Konigsberg

II) the Supreme Court upheld the state’s refusal to license

a). applicant to the bar because of his refusal to answer

questions. Again Konigsberg II did not sanction the ask-

ing of any questions regardless of their rational relation

to the functions of the profession. What was critical in

Konigsberg II was that the particular questions at issue

were found to be substantially relevant to the applicant’s

qualification and thus in accordance with due process guar-

antees. Appellants’ assertion in the instant case is analogous

to the assertion of an applicant for admission to the State

Bar whose prior membership in the Communist party and

his use of aliases were not rationally related to the quali-

fications required for membership in the legal profession

as to serve as a rational basis for the state to deny him

permission to take the bar exam. Schware v. Board of

Bar Examiners, supra. In Schware the Supreme Court

held that plaintiff had sufficiently asserted a liberty in-

— to employment guaranteed by the due process

clause.?°

® “{I}t does a man little good to stay alive and free and prop-

ertied, if he cannot work [in his chosen occupation]. The distinc-

tion between the state’s power to license doctors and to license

street vendors is one of degree. The fact that a doctor needs a

good knowledge of biology is no excuse for os his license

because he has little or no knowledge of constitutional law.” Bar-

sky v. Board of Regents, 247 U.S. 442, 478-74, 74 S.Ct. 650, 666-67,

98 L.Ed. 829 (1954) (Douglas, J. dissenting).

10 Appellants’ claim is not precluded by the fact that they can-

not be certain that they would have achieved a sufficient score

so that they would have been promoted had they been given a

job-related examination. in Schware, the plaintiff could not be cer-

tain that he would have in fact passed the bar examination; never-

theless he was allowed to challenge, on due process grounds, the

state’s denial to him, based on a finding of unfitness to practice

law, of permission to take the examination.

(Footnote continued on following page)

App. 36

Ill

Normally in a case such as this, where only constitu-

tional due process interests are sufficiently asserted, a

plaintiff has the burden of moving forward and the

ultimate burden of proving that the state-established re-

quirements for the employment he sought are not rational-

ly related to the functions of the job.1! The state is not

10 continued

The district court concluded that plaintiffs have no proprietary

interest in a job-related promotion exam. However, because we

hold that plaintiffs asserted a due process claim based on a lib-

erty interest, and because the due process requirements of a ra-

tional relationship between the examination and the job functions

of a sergeant are the same in this case, whether plaintiff is recog-

nized to have a liberty or proprietary interest, it is unnecessary

for us to determine if plaintiffs have a proprietary interest recog-

nized under state law.

11 Also compare the burden of proof in a case involving the con-

stitutional standard for adjudicating claims of invidious racial dis-

crimination, on the one hand, and Title VII discriminatory impact

claims on the other hand: Under Title VII plaintiff establishes a

prima facie case of racial discrimination by merely showing “that

the tests in question select a for hire or promotion in a

racial pattern significantly different from that of the pool of ap-

licants.” Albermarle Paper Co. v. Moody, 422 U.S. 405, 425, 95

.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). The burden then shifts

to the defendant to show that the testing system has been vali-

dated for job relatedness through proof “by professionally accepta-

ble method” that the testing system is “ ‘predictive of or sig-

nificantly correlated with important elements of work behavior

which comprise or are relevant to the job or jobs for which candi-

dates are being evaluated.’ ” Id. at 431, 95 S.Ct. at 2378. The Title

VII plaintiff may then attempt to show that the defendant’s test

validation was merely a pretext by proving “that other tests or

selection devices, without a similarly undesirable racial effect,

would also serve the employer’s legitimate interest in efficient and

trustworthy workmanship.’ ” Jd. at 425, 95 S.Ct. at 2375 (citation

omitted).

On the other hand, “racial discrimination within the meaning of

the equal protection clause could not be demonstrated solely by

a racially disproportionate impact. Rather . . . for constitutional

purposes it is necessary to show an intent or purpose to dis-

(Footnote continued on following page)

App. 37

constitutionally mandated to establish an examination as

a requirement for promotion. Constitutiona! due process

requires only that whatever requirements are established

by the government must have a ratiuvne! relation to the

job’s performance. Once the plaintiff puts into question

the rationality of the requirements, the defendants may,

but they are not constitutionally required to, articulate

the rationality of the requirements by relying on the

results of a professional validation study. There is no one

method which is required for appropriately evaluating the

relationship of an employment requirement to job per-

formance.!2 Washington v. Davis, 426 U.S. at 247, 96

S.Ct. at 2051.

11 continued

criminate by reason of race. Thus, the Court has differentiated

between the standard necessary to prove a violation of Title VII

and the standard required under the Constitution. Under Title

VII, a disproportionate racial impact remains — to establish

a prima facie case while under the Constitution evidence of inten-

tion must be oo United States v. City of Chicago, 549 F.2d

415, 435 (7th Cir. 1977), citing, Washi v. Davis, 426 U.S. 229,

238-39, 96 S.Ct. 2040, 2046-47, 48 L.Ed.2d 597 (1976).

12 The inquiry as to the rational relationship of a promotion ex-

amination to job performance is not limited to equal protection

claims based on adverse racial impact. The district court was in-

correct to assume that the inquiry as to the validity of the pro-

motion examination is limited to claims of adverse racial impact.

The district court — too heavy a reliance on EEOC “Guide-

lines” which provide that “use of a selection procedure is in com-

pliance with these guidelines . . . if such use does not result in

adverse impact on any race, sex, or ethnic group.” 29 CFR

§ 1807.16, cited at note 2 of district court’s order (emphasis added

by the district court). The EEOC guidelines focus on racial im-

pact because they are the enforcing agency’s administrative inter-

pretation of Title VII, Griggs v. Power Co., 401 U.S. 424,

433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158 (1971), and Title VIi

is specifically geared to employment discrimination practices. As

we explained, a professional validation study is merely a statutory

requirement under Title VII, but it is not a constitutional require-

ment. However, an examination allegedly lacking in a personal

relationship to the functions of the job to which it is geared is

not foreclosed from constitutional due process inquiry for having

(Footnote continued on following page)

App. 38

The distinction elucidated between constitutional claims

under the Fifth and Fourteenth Amendments and a Title

VII claim, is crucial because, unlike under Title VII, the

inquiry in the instant case, resting solely on alleged vio-

lation of constitutional due process, should not focus on

the quality of a particular validation study, or on the

availability of other employment selection procedures that

would have a less discriminatory impact. Jd. at 247-48,

96 S.Ct. at 2051. In the instant case, plaintiffs may not

simply challenge the quality of the validation study with-

out showing a lack of rational basis between the promo-

tion requirements and a sergeant’s job functions. In the

due process context, there is no basis for courts to in-

quire as to whether or not a particular promotion method

is most efficacious. And if defendants choose to articulate

the rationale of the established procedures by depending

on a validation study, it is not open to judicial inquiry

whether a different validation study would have been

superior. The judicial inquiry is over once a rational basis

between the requirements and the job’s functions is

shown.

IV

While in the usual case the plaintiffs would have the

burden of proving a lack of rational connection between

the particular promotion examination and the functions

of the job sought,!* in the instant case defendants had

the burden of proving that there was no genuine issue

of material fact and that they were entitled to a judg-

ment as a matter of law because defendants moved for

a summary judgment. Fed.R.Civ.P. 56. The record dis-

12 continued

the distinguishing characteristic of being nondiscriminatory in its

alleged irrationality. Whether the rights implicated are based on

due process, equal protection, or Title VII, merely affects the

burdens of proof.

13 We agree with the district court that plaintiffs did not suffi-

ciently assert a claim of denial of equal protection.

‘hin oe or er Olea FO

App. 39

closes that the defendants articulated a rational relation-

ship between the particular questions challenged in plain-

tiffs’ complaint and the actual job functions of police

sergeants.!* In challenging the motion for summary judg-

ment plaintiffs are not required to prove their contentions,

but they are required to present enough specific facts as

to raise a genuine issue as to the material issue of the

rational relationship between the promotion examination

uestions and the job functions of police sergeants.

houdhry v. Jenkins, 559 F.2d 1085, 1089 (7th Cir. 1977).

Thus it was up to the plaintiffs to raise an issue that the

examination questions could not rationally guage an ex-

aminee’s ability to perform the actual functions of police

sergeants, or that the asserted functions were not in fact

rationally related to a police sergeant’s performance. Plain-

tiffs could not challenge the motion for summary judg-

ment by relying on allegations contained in their complaint

or on affidavits that merely stated conclusory allegations,

as did the affidavit of the plaintiffs’ counsel. Fed.R.Civ.

P. 56. The only other affidavit submitted by plaintiffs was

one from an individual who asserted that he is qualified

in psychology and has expertise in analyzing promotional

tests for policemen. We conclude that this affidavit did

not raise genuine issue as to a fact material to the al-

leged constitutional violation. The affidavit merely raised

an issue as to the quality of the professional validation

study conducted to evaluate the promotion examination.

14 The defendants’ rationale from the record was that: the ques-

tions challenged by plaintiffs are job-related in that they were

validated for determining intellectual ability, logical deduction,

common sense, leadership, and decision-making ability, traits

desired of sergeants since they are police supervisory personnel;

the “criteria used in developing the test represented major or

critical work behavior as revealed by careful job analysis. These

critical work behavioral elements were developed by research

teams, police chiefs, and division commanders. They were applied

to existing sergeants and finally to patrolmen taking promotional

examinations for the rank of sergeant. These behavioral elements

were tested and retested prior to [the December 10, 1977] test.”

App. 40

But as we emphasized in Part III, defendants are not con-

stitutionally required to conduct a professional validation

study of the promotion examination. The facts articulated

by the defendants directly addressed the sole material

issue of constitutional magnitude in this case, namely the

rational relation between the contents of the examination

and the job performance of police sergeants. Plaintiffs’ af-

fidavits clearly do not raise a genuine issue as to this sole

material issue.

V

For the foregoing reasons, the judgment of the district

court is affirmed.