*1 janitor of a inmate makes it clear that it
would have a matter of a few min- Spicer
utes’ time and effort to remove posed
eliminate the risk he to Erickson. nothing.
But WDC did And a reason- jury, here,
able under the circumstances response
could find that lack of to be reasons,
unreasonable. For these
judgment of the district court is Affirmed. ADAMS, Peggy Adams,
Edward Helen
Adams, al., et Plaintiffs-
Appellants, CHICAGO,
CITY OF Defendant-
Appellee. 05-4145,
Nos. 05-4150.
United States Court of Appeals,
Seventh Circuit.
Argued June 2006.
Decided Nov.
Rehearing En Banc Denied
Dec. 2006.* * Judge participate Rovner did not petition. in the con- sideration of this
610 examination, had a
based on on race. impact that discriminated based summary judg- granted court The district determining po- Chicago, ment to officers could not demonstrate the lice of availability of an alternative method that was valid and less promotion discriminatory than the examination used. affirm. I. 10,000
Chicago employs approximately
officials, including
sworn law enforcement
8,000
1,200 sergeants.
police officers
officers, and lieu-
Sergeants supervise the
tenants,
turn, supervise
sergeants.
Chicago’s
promoting
methods for
officers
proven to be a conten-
up these ranks has
(argued), Chicago,
N. Flaxman
Kenneth
spawned litigation
tious issue that has
over
IL,
Plaintiff-Appellant.
past
several decades.1
Maloney Laytin (argued), Office
Kerrie
Responding
continuing
controver-
Appeals Divi-
Corporation
Counsel
Chicago’s mayor ap-
sy
over
sion,
IL,
Chicago,
Defendanb-Appellee.
pointed
panel
in 1990 to make recom-
concerning
mendations
future
FLAUM,
Judge,
Before
Chief
recommendations, Chicago
Based
those
WILLIAMS,
MANTONand
Circuit
hired an outside consultant
to create a
Judges.
promotional
present
examination.
MANION,
Judge.
Circuit
suit,
Hispanic
challenge
black and
examination
resulting
1994
Minority Chicago police officers sued
promote
officers to
ex-
City
Chicago, claiming
of
a 1994
made
on the examination
motions
based
sergeant,
amination for
examination con-
ensuing
promotions
1997
scores.
See,
City Chicago,
geants
challenged Chicago’s
e.g.,
and lieutenants
Banos v.
of
roster);
retiring
previous promotional
of
889,
Cir.2005)
(7th
(minority sergeants
890
City
Chicago, 870 F.2d
United States v.
lieutenant);
of
challenged
promotions to
1998
1256,
(7th Cir.1989) (white
female
Chicago,
City
v.
307
Allen
351
sergeants challenged
1988
to lieu-
(7th Cir.2003) (minority
challenged
tenant); Bigby City
Chicago,
v.
sergeant);
v.
1998
Barnhill
(7th Cir.1985) (minority and white
1055
City
Chicago,
F.Supp.2d
950
sergeants challenged
exam
(white
(N.D.Ill.2001)
challenged
male officers
promotions);
v.
for lieutenant
United States
sergeant); Bryant City
Chicago,
F.Supp.
(7th
Chicago, 200 F.3d
Cir.
(N.D.Ill.1976) (minorities
of
2000)
chal
and women
sergeant),
(minority sergeants challenged 1994
lenged
promotion to
the 1971 exam for
lieutenant);
(7th
Deveraux v.
part,
d
tions
Chicago administered its first written
cedures,
regulations sergeants
and other
examination for
officers
over
cen-
(also
needed to know. Part II
multiple-
tury
in
ago
1894. It did not
pro-
make
choice) tested the administrative func- motions from
sergeant
officer to
based on
performed by sergeants,
tions
including merit until after the task force’s recom-
reviewing reports
determining
and
Nonetheless,
mendations in 1998.
the offi-
patterns.
crime
Candidates who did cers submit
Chicago
could have and
on
I
II
presumed
well
Parts
and were
to should have
instituted merit component
know the fundamentals and were then
for promoting
sergeants.
officers to
The
given
to take the third
that,
point
out
beginning
in
test,
part of the
an oral examination
used merit
twenty
to fill
percent
based on a
briefing.
written
of D-2 positions. D-2 positions retain the
police officers,
rank of
but
City Chicago,
Adams v.
function as de-
(7th
tectives,
Cir.1998).
youth officers,
gang
and
Each of the
crimes
three
specialists. Furthermore,
parts
weighted equally
officers note
scores
that pursuant
ranked.
the task
ranking generated
force’s recom-
pro-
mendations,
list,
Chicago
thirty
made
highest
percent
motional
with the
score listed
its
from
sergeant
first and entitled to
officer to
promotion.
the first
and from sergeant
parties agree
lieutenant based on
this examination
beginning
in 1998.
ranking
Chicago
had a
Since
disparate impact on
considered merit in appointing D-2
posi-
minorities.
made
lieutenants,
tions and
on
and since
ranking
August
panel
based
1996, and,
recommended merit
here,
March
considerations
relevant
prospective
22, 1997,
sergeant promotions,
the offi-
retiring
pro-
before
argue
cers
that Chicago
motional
could have
list. Earlier in
proceed-
these
merit in making thirty percent of
ings,
the officers
sought
injunction
motions to
prohibit
They
claim
making
further ser-
that this consideration
geant promotions,
would have
which the district
court
equally valid, less discriminatory
denied and
we affirmed. Id.
Chicago’s
and that
failure to
continued,
litigation
As the
mayor
consider merit therefore violated Title VII.
appointed a task force to make recommen-
dations for the
process. The
Faced with
these claims
a well-trod-
task force issued
report
January
den field of litigation, the district court
1997, which included a recommendation
Chicago’s promotion-
excluded evidence of
future,
al
made after
merit,
motions to
upon
be based
reasoning that the evidence was irrelevant
with the
tests used to assure
a subsequent
inadmissible as
remedial
“a minimum level
competence.”
evidence,
measure. Without this
the dis-
Adams,
less
liability.”
v. El-
Probus
summary
the defendant’s
granted
court
district
ingly, the
(7th
Inc.,
1207, 1210
Cir.
Mart
appeal.
Chicago. The
judgment to
1986)
Co. v. Bath Iron
(citing Pub. Serv.
(7th
II.
F.2d
Cir.
Corp., 773
Works
Co.,
1985);
v. Honda Motor
Flaminio
the district
review de novo
Cir.1984)).
plain
sum
Chicago’s motion for
grant
court’s
readily ap-
not
language of this rule does
viewing the facts
mary judgment,
claims,
are
disparate impact
which
ply
light
in the
most favor
drawing inferences
injury
“an
naturally described as
*4
officers,
non-
who are the
able
by an event.” Even
allegedly
harm
caused
Allen,
at 311.
351 F.3d
moving parties.
analysis
apply
if
to
Rule
our
we were
outset,
address the district
At
we
requires
claim
us
disparate impact
of this
of the 1998
of evidence
court’s exclusion
availability of an
alternative
address
thirty
that
provided
which
method,
will be
promotional
as
discussed
promotions
of the
be based
percent
subsequently
A
enacted method
below.
ad
regarding
“decisions
merit. Since
availability of the alternative
bears on the
pe
of evidence are
mission and exclusion
at an earlier time. Because we
culiarly
competence
of the dis
within
availability
of an alterna-
must discuss
court,”
review the district court’s
trict
we
method,
situation falls within the
tive
this
in limine for an abuse
“rulings on motions
exception
contained in Rule
ambit
Moore,
of discretion.” Heft
explicitly
require
“does not
which
(7th Cir.2003) (internal
quota
subsequent
reme-
exclusion
omitted).
noted, the
citation
As
tion and
dial measures when offered
another
pro
that the later
court reasoned
district
feasibility
...
purpose,
proving
such as
rank were irrelevant
motions to different
another
precautionary measures.” Since
determining the available methods
here,
purpose is at issue
Rule 407 is an
anal
sergeant promotions
and also
for the exclusion of the
improper basis
methods
ogized
changes
method.
measures
that
subsequent
remedial
under Federal Rule of
should be excluded
evi-
The district court also excluded this
407. The officers contest these
Evidence
relevancy, concluding that
dence based on
rulings
appeal.
City’s] promotion prac-
“evidence of [the
“[w]hen,
an tices well after the
at issue is
provides
Rule 407
that
after
by an irrelevant
to the issue of what
informa-
injury
allegedly
or harm
caused
event,
if taken
were available when
measures are taken
tion/alternatives
made.” In ad-
injury
disputed promotions
made the
were
previously, would have
occur,
dressing hiring practices, the Sixth Circuit
likely to
evidence of the
harm less
explained
proving
that “in
the exis-
is not admissible to
has
subsequent measures
conduct,
hiring proce-
of a
culpable
a de-
tence
viable
prove negligence,
dure,
the court should consider evidence
product’s
a defect
product,
fect
might
introduce on a
plaintiff
that
design,
warning
or a need for a
or instruc-
Certainly any subse-
variety
of factors.
previously
tion.”
have
noted
We
company
promote
quent practices
of Rule 407 is to
purpose
“[t]he
Complete
take
be relevant.” Chrisner v.
by removing the disincentive to
safety
Trans., Inc.,
safety measures that would Auto
post-accident
Cir.1981).
that evidence of sub-
agree
victim could introduce
exist if the accident
may be
have
sequent procedures
relevant
made
of the 1997 pro-
motions
availability
procedure
of a
based on merit. To
proving the
with
succeed
claim,
this
Consequently,
alternative “must be avail-
earlier time.
the district
able, equally valid and less
discriminato-
excluding
court abused its discretion
ry.”
We therefore whether the offi- sergeant consider 1997 or that available Chi cers cago meet this The officers refused to adopt burden. this alternative earlie as an r.2 an pose could Without Chi- agree Judge 2. We that "[a] with Williams' statement reasonable alternative is not unavail- develop a expert hired another cago claims fail. We officers’ adopt, the cago to ap- examination and new explain. will procedure. The merit selection propriate evaluating the merit procedure No for. job performing months expert spent the time of sergeants existed potential position and devel- of the analysis fact, promotions.3 the contested selection based on criteria for merit oped ex- the 1994 created the consultant when necessary analysis of the skills amination, which the resulting merit selection position. based, considered Chicago had never were training of select involved nominators, accounta- then held who were were insti- written exams years after nominations, accuracy of their ble for the parties officers. police for the tuted further review of nominees that as of agreed also Board and the Su- the Academic Selection the contested date of Depart- Police perintendent had never developed, and City had never This F.3d at 309-10. ment. it, a mechanism developed had through from recommendation process, rank of promotions to the for merit cedure about nineteen spanned plementation, validat- sergeant that had ever been making was then used months. Merit procedure lack of a validated ed.” sergeant promotions. To August 1998 since, expert who creat- as significant, that merit should have been demonstrate testified, it is difficult the examination ed sergeant promotions, the 1997 ratings objective, reliable merit obtain demonstrating officers bear the burden litigious climate supervisors process was that a valid merit selection *6 favoritism, may “they be accused where 22, 1997, only one available on bias, discrimination” based perhaps even the task force recommended month after ratings. on the develop- and before the considering merit and appropriate process, criteria ment 16, 1997, January task subsequent The it. 42 adopt refused to and that the use of did recommend report force 2000e-2(k)(l)(A)(ii). § U.S.C. sergeant, in future merit undisputed part in due to the perhaps burden, the officers submit meet this To examination. impact of the 1994 that merit evaluations could have been recommendation, however, pro- sooner, already This since merit was plemented criteria for merit noting selecting positions. “the in the D-2 spective, developed by January in suggest should be force did task existing merit selection broadly using and Superintendent distributed.” recommendation, as a model” for for detectives Chi- receiving After mayor’s pan- has not 3. The vice chairman simply because the defendant able inquiry viability of completed own into the the creation of the el testified before J., (Williams, dissenting issue, minority police alternative.” at 1994 examination 16.) opinion post As the remainder of this at expressed great organizations "a dis- officer search, however, thorough explains, after any subjective components of test trust of record to be devoid of we find the including any perform- processes, reliance on feasibly developed could have accordance with this evaluations.” In ance applied a valid merit selection method for and submission, panel the cre- recommended sergeant during be- promotions to the month by consul- examination outside ation of an of merit selection tween the recommendation materials, without a defined set of tants over This remains at issue. merit consideration. plaintiffs' to demonstrate. burden record, pool Nothing sergeants seeking in how- promotion to ever, D-2 process indicates that the could lieutenant significantly smaller than the sergeants. in toto for Both be pool seeking promotion of officers to ser- sergeant positions D-2 and were filled geant. For example, 765 ser- officers. the D-2 positions, Unlike geants sought promotion lieutenant, however, sergeant positions were su- 4,700 while sought promotion Thus, pervisory. pro- the merit selection sergeant. The officers have not shown super- cess needed discern evaluate that a valid evaluation method was avail- visory attributes in the non-supervisory able on large scale. Although rank officers. the D-2 merit (address- See promotion process existed it does in merit limitations evaluation when available, not follow that had an number of promotion candidates for in- equally valid for promoting offi- crease). Furthermore, to sergeants cers at that time based on the were, motions to lieutenant unsurprisingly, procedure. D-2 was no There challenged in federal court. Brown v. promoting sergeants “re- (N.D.Ill. Chicago, F.Supp.2d adopt” apply fuse[d] 1997. 42 of 2000e-2(k)(l)(A)(ii). case, In that U.S.C. district court not ed that procedures put “criteria and point officers next to certain pro- place” for making the 1995 merit lieutenant, motions from which (which motions past job were based on incorporated in 1995. Again, performance) and, “were abbreviated as lieutenants parties agree, inferior” to the merit not a process does demonstrate that evaluations subsequently used 1998. Id. be available for or that Chicago at 892. here do present refused to an available alternative evidence that evaluation of past officers’ all, method. First of unlike evaluating performance or an alternative evaluation non-supervisory for a promotion method was sufficient for as- supervisory position, both the sergeant *7 certaining potential sergeants, the merit of positions and lieutenant are supervisory. let alone that such an Thus, demonstrate inferior sergeants’ perform- evaluations of would be valid to the rank- already ance encompassed supervisory the ings from aspects. the 1994 examination The have not alone.4 shown the Thus, availability of a the officers have not merit evaluation of demonstrated Chicago officers that that to an adopt would evaluate attributes for refused available Furthermore, sergeant position. the considering the method for merit in making Judge emphasizes sergeant 4. Williams in her issue dissent motions to at in this case. See eight-day during period City the 1095, which the City Chicago, F.Supp.2d Brown v. of implemented promotions sergeant merit (N.D.Ill.1998). course, Of a state (between 28, February to lieutenant 1995 and injunction violating court excuse is no for 8, J., (Williams, dissenting, March law, federal indicate but it does that the 16.) post at the note that lieutenant merit adopt” did not to an available "refuse[ ] alter- promotions immediately were almost en- 2000e-2(k)(l)(A)(ii). § native. 42 U.S.C. Re- joined by violating the Illinois courts for state gardless, applicant the size and scale of the Rodriguez, law. See 365, Ill.App.3d McArdlev. pool supervisory lack officers’ of ex- 709, 1356, 213 Ill.Dec. 659 N.E.2d perience distinguish the available methods (1995). injunction by was invalidated promotions used for to from the 6, litigation, notably July federal but not until motions to lieutenant. more than 16 months after the method, adopt or refused to such geants, in 1997. U.S.C.
sergeant promotions
2000e-2(k)(l)(A)(ii).
February
by
§
the date
the
Therefore,
promotions.
their
contested
that
sum,
the
assert
while
impact
Accordingly,
claim fails.
to ser-
promotions
thirty percent
of the
judgment
district
we
AffiRM
merit, a
on
geant
be made based
should
court.
by Chi-
subsequently adopted
proposition
have not demonstrated
cago, the officers
WILLIAMS,
Judge, dissenting.
Circuit
February
that this method
majority
plain-
that
concludes
an
that
refused
1997 or
tiffs failed
demonstrate
existence of
explained
method. As we
they
fact because
question
material
above,
statutory
requires
scheme
that a
produce
did
evidence
substan-
a viable alterna-
plaintiffs to demonstrate
tially equally valid alternative was avail-
employer
opportunity
an
give
tive and
at the time of
(citing able
III. bottom, question At relevant manner. the whether simply The officers have not demonstrated is there is in the jury Chicago had an alternative method avail- record from which a reasonable could that at the potential able to the of ser- conclude the time of contested evaluate required have used the rule that City the could them be clean shaven racially because of the promotions proposal. discriminatory an- 30% (“The pact of this id. at “yes.” rule. See question Regardless to this is swer plaintiff-appellant firefighters twelve formulating the a of whether this case are all African-American men sergeants for was who pseudofolliculitis suffer from barbae for either D-2 complex more than that or (‘PFB’), a bacterial disorder which causes promotions, the fact that the lieutenant men’s they faces to become infected if City successfully implemented had essen- generally shave them. It recognized is the for these tially system same ranks is that PFB disproportionately Afri- afflicts powerful evidence that the alternative was men.”). can-American The firefighters sergeant promotions for the proposed that “shadow beards” would con- City refused to it. stitute a less-discriminatory alternative least, very the question At material value, equal with safety but the Eleventh pace fact remains as to whether the Circuit firefighter concluded that the plain- investigation City’s nature into the tiffs had failed to introduce sufficient evi- possibility using 30% merit dence to issue raise an of material fact for was This is un- reasonable. where voluminous City had submitted by the of this derscored timeline case—as safety-necessity evidence of the no- of its describes, majority opinion City’s policy. beard See id. 1122-23. This case Force Task recommended use of the is not Fitzpatrick, like where a less-dis- merit promotions proposal 30% more than criminatory literally alternative did not ex- month ques- one before the scientifically ist verifiable reasons. contrast, City only it tion. took Similarly, the Second Circuit has observed days to eight move from Task Force’s cases, housing disparate impact implementation recommendation to when question proposed whether alternative system promot- examined is by objec- available should determined be logical lieutenants. There is discon- tive factors such as cost. See Hack v. City’s between the nect idea that own College, President and Fellows Yale force had recommended use of task this (2d Cir.2000) (“Factors such system majority’s conclusion that as the burdens of pro cost other alternative was unavailable more than posed policy to a are relevant determina explanation month one later. The for this tion as to whether the defendant’s refusal majority disconnect is that the has unnec- to adopt housing procedure an alternative essarily complicated question of avail- reasonable.”), abrogated on other ability. An alternative unavailable N.A., grounds by Swierkiewicz Sorema when, reasons, for verifiable the defendant U.S. S.Ct. L.Ed.2d adopt it. A cannot reasonable alternative (2002). simply
is not unavailable because the de- An was available here. completed inquiry fendant has not its own question There is a of material fact toas the viability into of the alternative. took proper steps whether *9 trueA situation of no viable alternative viability assessing promptly being available can found in the City’s timing be Elev plementing it. While in Fitzpatrick Circuit’s decision v. may perfectly enth have reasonable in this Atlanta, case, By Cir. for trial. question was a Fitzpatrick, firefighters deferring black calculation defendant’s challenged Department implement Fire the time needed an Atlanta alternative, invites abuse our decision
valid faith. I there- acting in bad
by defendants majori- dissent respectfully
fore summary grant affirmance of
ty’s
judgment. Plaintiff-Appellee, VIA,
Tonisha LaGRAND, investigator, a DCP
Sandra capacity,
in her individual
Defendant-Appellant.
No. 04-4011. Appeals, Court of
United States Circuit.
Seventh Sept. 2006.
Argued
Decided Nov.