Horan v. City of Chicago

Full title: JEFFREY HORAN, et al., Plaintiffs, v. CITY OF CHICAGO, Defendant

Court: United States District Court, N.D. Illinois

Date published: Sep 30, 2003

Case No. 98 C 2850 (N.D. Ill. Sep. 30, 2003)

Opinion

Case No. 98 C 2850

September 30, 2003

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MATHEW KENNELLY, District Judge

The plaintiffs, all of whom are white persons employed by the Chicago Fire Department, have sued to challenge a series of CFD promotional decisions made by the City of Chicago from 1997 through 2000. The promotions were made from lists compiled following seven promotional examinations: the 1991 fire captain examination #39104; the 1993 fire lieutenant examination #39202; the 1994 fire engineer examination #39305; the 1995 fire battalion chief examination #39308; the 1998 fire engineer examination #39702; the 1999 fire captain examination #39802; and the 2000 fire lieutenant examination #39903.

Those who qualified for promotion were ranked on lists based on their scores on a written examination and an oral examination, with weight given to their seniority. Promotions were made starting at the top of the list and moving down the list in rank order. At certain junctures, the City skipped over the candidate(s) ranked next on the list and selected the next-ranked African-American or Latino candidate. We will refer to these as "affirmative action promotions." The City justified the affirmative action promotions on several grounds, stating that it acted as it did to rectify past discrimination against African-Americans and Latinos in CFD hiring and promotion practices; to comply with a federal court consent decree concerning CFD hiring and promotion; to comply with Title VTI of the Civil Rights Act of 1964; to comply with the collective bargaining agreement between the City and Chicago Fire Fighters Union, Local No. 2; and to achieve diversity in the CFD's promotional ranks.

The plaintiffs claim they were passed over for promotion as a result of the City's decisions and allege that as a result, their promotions were delayed or denied. They contend that the City violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by taking race into account in making these promotional decisions. The plaintiffs' suit is brought pursuant to 42 U.S.C. § 1983.

The Court held a bench trial on plaintiffs' claims in October-November 2002. This constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

The parties' stipulated facts

The parties entered into extensive stipulations of fact which the Court adopts as part of its findings in this case. The stipulated facts, which we adopt using the language employed by the parties, are as follows:

A. Background

1. Seven (7) Chicago Fire Department ("CFD") promotional examinations are the subject of these lawsuits: the 1991 fire captain examination #39104; the 1993 fire lieutenant examination #39202; the 1994 fire engineer examination #39305; the 1995 fire battalion chief examination #39308; the 1998 fire engineer examination #39702; the 1999 fire captain examination #39802; and the 2000 fire lieutenant examination #39903.

2. The career-service ranks within the CFD consist of firefighter, engineer, lieutenant, captain and battalion chief. Firefighters are eligible to take the promotional examination for engineer; firefighters and engineers are eligible to take the promotional examination for lieutenant; lieutenants are eligible to take the promotional examination for captain; and captains are eligible to take the promotional examination for battalion chief.

3. Chicago Fire Fighters Union, Local No. 2 ("Local No. 2") is the exclusive collective bargaining representative for all career — service ranks in the CFD.

4. The City of Chicago ("The City") and Local No. 2 are parties to a collective bargaining agreement ("the CBA").

5. The applicable CBA governs, in part, promotions to the career-service ranks in the CFD.

6. Article IX, Section 9.3.B.1. of the CBA provides in part that career-service promotional examinations shall consist of the following three (3) criteria: written, oral/proficiency and seniority ("the administered examination"). The weights to be accorded the components of the administered examination shall be consistent with the requirements of federal law and are subject to review by the Department of Justice. The City announces the weights of the components of the administered examination at the time the Department of Personnel ("the DOP") officially announces the examination.

7. Article IX, Section 9.3.B.1. of the CBA also provides in part that effective for administered examinations given after January 1, 1997, the total weight assigned to the written component shall be no less than 30%; the total weight assigned to the oral/proficiency component shall be no less than 30%; and the total weight assigned to the seniority component shall be no less than 20% of the final score of the administered examination. The maximum seniority score shall be awarded as follows: (a) 96 or more months for promotion to engineer or lieutenant; (b) 144 or more months for promotion to captain; and (c) 204 or more months for promotion to battalion chief. Lesser amounts of seniority shall be awarded on a pro-rata basis. Additional credit shall be given to candidates who have associate and/or bachelors degrees in fire science at the time of the administered examination as follows: (a) Any lieutenant or captain promotional candidate who has an associate or a bachelors degree in fire science will receive the full education credit; and (b) Any battalion chief promotional candidate who has a bachelors degree in fire science will receive the full education credit.

8. Article IX, Section 9.3.B.4. of the CBA provides in part that effective for administered examinations given after January 1, 1997, up to 10% of the promotions to each of the career-service ranks of lieutenant, captain and battalion chief may be made by the Fire Commissioner on the basis of performance. The following criteria must be met by any applicant prior to being eligible for performance promotion: (a) Passing the applicable administered examination with a score of 70 or better; and (b) Meeting the following time in rank requirements: (i) 84 months in the rank(s) of firefighter and/or engineer for promotion to lieutenant;(ii) 60 months in the rank of lieutenant for promotion to captain; and (iii) 60 months in the rank of captain for promotion to the rank of battalion chief.

9. A September 26, 1997 side letter was appended to and made a part of the CBA. In that side letter, the City and Local No. 2 agreed that if the City makes out-of-rank-order promotions for affirmative action purposes from examinations administered after January 1, 1997, the City will use a band width of one (1) standard error of difference ("SED") rather than two (2) SEDs. In other respects the City will use the sliding/fixed band methodology it had used in making promotions from the 1993 lieutenant examination #39202 and the 1994 engineer examination #39305.

10. The wrap-around agreement has been implemented for candidates passed over for promotion for affirmative action reasons on the eligible lists based on the 1991 captain examination # 39104, the 1993 lieutenant examination #39202, the 1994 engineer examination #39305 and the 1994 battalion chief examination #39308.

11. Since March 31, 1980, the City has been a party to a consent decree entered by Judge McGarrin United States v. Albrecht, Nos. 73 C 661, 80 C 1590 (N.D. HI.). The Albrecht decree provides in part that the City, "as a long range goal, shall seek to promote black and Hispanic persons in sufficient numbers so as to increase substantially the minority composition in each of the promotional ranks of the [CFD] with the objective that each such rank become more representative of the racial and ethnic composition of the rank or ranks from which promotion to it are made."

12. For future promotional eligible lists, the 1980 Albrecht decree provides in part that "[s]uch new eligibility lists and/or the promotions made therefore shall be consistent with the long term goal for the promotion of blacks and Hispanics within t he [CFD]" set forth in Paragraph No. 11, above.

13. For future promotional eligible lists, the 1980 Albrecht decree also provides in part "[a]ny qualifications, tests or other selection standards or procedure for promotion in the [CFD] that the [City] may use or adopt shall be designed so as to eliminate or reduce any adverse impact against black or Hispanic applicants for promotion, and otherwise shall be consistent with the Uniform Guidelines on Employee Selection Procedures, 43 Fed. Reg. 38290."

14. In addition, for future promotional eligible lists, the 1980 Albrecht decree also provides in part that "[a]ny qualifications, tests or other selection standards or procedures for promotion in the [CFD] which are adopted or used by the [City] shall be sufficiently objective to prevent, or otherwise shall be designated to ensure against, any unlawful discrimination against blacks and Hispanics seeking promotion."

15. Further, for future promotional eligible lists, the Albrecht decree provides in part that "[t]raining opportunities shall be provided to persons within the [CFD] who desire to seek promotion within the department. Such training opportunities shall be provided prior to the initiation of any promotional selection procedures and they shall be appropriate to the rank involved"

B. 1991 Fire Captain Examination #39104

16. The 1991 fire captain promotional examination #39104 was announced on July 23, 1991. Applications for the 1991 fire captain examination were taken between July 23, 1991 and September 4, 1991.

17. Fire captain promotional examination #39104 was developed and administered by the City's Department of Personnel ("the DOP"). Fire Captain promotional examination #39104 consisted of three parts: a written multiple-choice test, an oral board interview and credit for seniority.

18. In June of 1991, a panel of representatives from the DOP and subject matter experts (incumbent battalion chiefs and deputy district chiefs) met and reviewed and revised the list of tasks for the job of fire captain that was generated during the development of the 1987 fire captain promotional examination #68737. The panel rated each of the tasks as to criticality (i.e., whether a fire captain needs to be able to perform the task on the first day he is promoted).

19. Next, the panel assigned each critical task to one of the five categories that were used in developing the 1987 fire captain examination: Administration, Fireground Procedures, Tactics and Other Responses, Personnel Supervision, Training and Miscellaneous. The panel also adopted the weighting for each category that was used in the development of the 1987 fire captain examination. The panel then divided the tasks into one of the five categories. No task was placed in the Miscellaneous category.

20. Thereafter, the panel reviewed and revised the knowledge, skills and abilities ("KSA's") for the job of fire captain generated during the 1987 fire captain examination process. The panel rated each of the KSA's in terms of importance and criticality.

21. Finally, the panel grouped each important KS A into one or more of the job dimension categories.

22. In July of 1991, a panel of representatives of the DOP and subject matter experts (six (6) fire captains and one (1) battalion chief) met to link the critical tasks with the source materials proposed for use in developing fire captain promotional examination #39104. A source material could be linked to more than one task.

23. Only those sources linked to critical tasks were used to develop the Study Guide published with the announcement for fire captain promotional examination #39104. Only materials identified in the Study Guide were used to construct examination items.

24. A total of 557 fire lieutenants took the written multiple choice component of fire captain promotional examination #39104. Of those, 447 (80.25%) were white, 80 (14.36%) were black, 28 (5.03%) were Hispanic and two (2) (0.36%) were classified as Other.

25. The written component of fire captain promotional examination #39104 was given on September?, 1991.

26. All candidates who took the written component of fire captain promotional examination #39104 were eligible to take the oral board component, which was administered between November 20, 1991 and December 19, 1991. The oral board component consisted of four categories of questions and an overall rating. Each category had a pool of five questions and the two raters, exempt members of the CFD, each asked one question from each of the categories.

27. A total of 528 candidates took the oral board component of fire captain promotional examination #39104. Of those, 420 (79.55%) were white, 79 (14.96%) were black, 27 (5.11%) were Hispanic and two (2) were in other racial categories. The two (2) who fell into other racial categories were included as whites for purposes of analyzing the results of the oral board component.

28. There were no statistically significant differences among race groups on the written component of fire captain promotional examination #39104. Under the 80% rule in the EEOC's Uniform Guidelines on Employee Selection Procedures, there was adverse impact against minorities at the top of the list based on the raw scores on the written component. For Hispanics, adverse impact continued until a written score of 85. For blacks, adverse impact occurred until a written score of 83.

29. There were no statistically significant differences among race groups based on the average raw score on the oral board component of fire captain promotional examination #39104. However, there were statistically significant differences on the oral board component based on the week a candidate took that part of the test. The oral board raw scores were standardized by week to adjust for this difference. Also, there were statistically significant differences among questions that the oral board raters selected from the question pool. The difference in question difficulty was corrected by standardization. In addition, there were statistically significant differences among raters. To account for the fact that some raters were harder graders than others, the oral board scores were standardized by rater. None of these standardization processes was based on race.

30. Seniority scores were calculated by crediting one point per month of active service to a maximum of 30 and adding that total to a base of 70. All candidates who took this examination had at least two and a half years of active service and received a score of 100 on the seniority component.

31. The results of fire captain promotional examination #39104 were weighted as follows: 45% written, 45% oral and 10% seniority. The passing score was set at 70.

32. The City developed an eligible list for fire captain promotional examination #39104, listing in rank order, by cumulative score, the 383 fire lieutenants who attained passing scores of 70 or above on fire captain promotional examination #39104.

33. In a July 14, 1992 letter, Commissioner of Personnel Glenn E. Carr recommended to then Fire Commissioner Raymond E. Orozco that affirmative action promotions from the eligible list derived from fire captain promotional examination #39104 were warranted and proposed that subsequent promotions from that list should be made at a ratio of 20% over the black and Hispanic composition of the rank below (i.e., fire lieutenant).

34. Between July 16, 1992, and March 1, 1997, the last date covered in the Consolidated Chicago Firefighter Promotion Cases, Nos. 87 C 7295, et al, 1999 WL 1289125 (N.D. Ill. Dec. 30, 1999) (Holderman, J.), there were eight (8) personnel orders issued by the CFD, making 117 promotions to fire captain from fire captain promotional eligibility list #39104. Of these 117 promotions to fire captain from fire captain promotional eligibility list #39104, 18 promotions were made on a non-rank order basis and claimed by the City to be justified for the reasons articulated in Commissioner Carr's July 14, 1992 letter to then Commissioner Orozco. Of these 18 affirmative action, non — rank order promotions, 12 promotions went to black fire lieutenants and six (6) to Hispanic fire lieutenants.

35. On January 29, 1998, then Fire Commissioner Edward P. Airman issued Personnel Order ("P.O.") No. 98-007, effective February 1, 1998. P.O. No. 98-007 included the following 14 candidates with the following scores and ranks:

Personnel Order No. 98-007 feff. (2/1/98)

Name Race Score Rank Date of Hire

Lewis J. Bottando White 87.45 120 12/22/73 John F. Leonard White 87.40 121 3/1/80 Thomas L. Luczak White 87.33 122 2/1/73 Michael T. Lally White 87.31 123 11/1/68 John R. O'Brien White 87.22 124 11/1/68 John J. Sullivan White 87.11 125 9/2/69 James N. McCann White 87.09 126 11/16/78 Thomas E. Gniot White 86.95 127 2/14/80 Michael Strohmayer White 86.84 128 2/1/83 David M. Prieto Hispanic 85.11 156 2/1/80 Patrick C. Murphy White 86.64 129 2/19/80 Winston D. Williams Black 84.75 164 1/2/80 Matthew Thomas Black 84.48 167 3/1/77 Anthony L. King Black 84.39 169 2/19/80 36. Ten (10) of the 14 candidates promoted to fire captain were promoted in rank order from the eligible list based on fire captain examination #39104. The other four (4) promotions (Prieto, Williams, Thomas and King) were made out of rank order from the eligible list and claimed by the City to be justified for affirmative action reasons as stated in the July 14, 1992 letter from Commissioner Carr to Commissioner Orozco.

37. All of the candidates promoted out-of-rank-order from the eligible list based on fire captain examination #39104 were eligible to be fire captains because they received a passing score of 70 or higher on that test.

38. The CFD did not make any further promotions from fire captain eligible list #39104 after the captain promotions made effective February 1, 1998. On May 28, 1999, the DOP officially canceled the eligible list based on fire captain examination #39104 and adopted the eligible list based on the subsequent fire captain examination #39802. The first round of promotions from fire captain eligible list #39802 were made effective July 1, 1999.

39. Pursuant to the wrap-around agreement in the CBA between the City and Local No. 2, four (4) candidates from the eligible list based on fire captain examination #39104 were placed at the top of the eligible list that resulted from fire captain examination #39802. Those four (4) candidates were promoted to fire captain on P.O. No. 99-011, which was issued by then Fire Commissioner Edward P. Airman on June 18, 1999 and became effective on July 1, 1999. Those four (4) candidates achieved the following scores and ranks on fire captain examination # 39104:

Personnel Order No. 99-011 (eff. 7/1/99)

Name Race Score Rank Date of Hire

John J. Micotto[*] White 86.61 132 2/1/77 Sean W Burke White 86.57 134 ½/8O Michael C. Deckelmann White 86.43 135 4/1/67 William G. Cattorini White 86.34 137 1/1/68 [*] John J. Micotto is a plaintiff in Horan.

40. Pursuant to an arbitration award, the City was ordered to make two (2) additional wrap-around promotions to candidates from the eligible list based on fire captain examination #39104. One of those additional wrap-around promotions was made in P.O. No. 2001-018, issued by Fire Commissioner James T. Joyce on July 24, 2001, and effective on August 1, 2001. William F. Graves, who received one of those additional wrap-around promotions, achieved the following score and rank on fire captain examination #39104:

Personnel Order No. 2001-018 (eff. 8/1/01)

Name Race Score Rank Date of Hire

William F. Graves* White 86.30 139 6/16/71 *William F. Graves is a plaintiff in Horan.

41. James McDermott, the other white candidate in line to receive a wrap-around promotion from the eligible list based on fire captain examination #39104 pursuant to the arbitration award, was terminated by the CFD and he is contesting his termination in arbitration. The City and Local No. 2 have agreed to postpone making the final wrap-around promotion from the eligible list based on fire captain promotional examination #39104 until that arbitration has concluded.

42. Pursuant to an arbitration award, the candidates promoted to fire captain in that second set of wrap-around promotions retroactively received captain's pay from July 1, 1999, the effective date of the first set of wrap arounds, to August 1, 2001.

43. A total of 14 promotions to fire captain were offered and accepted effective February 1, 1998 (the only round of promotions from the 1991 captain examination at issue in this litigation) from fire captain promotional eligible list #39104. Of those 14 promotions to fire captain from fire captain promotional eligible list #39194, four (4) were made on a non-rank order basis and claimed by the City to be justified for the reasons articulated in Commissioner Carr's July 14, 1992 letter to then Commissioner Orozco. Of these four (4) non-rank order promotions three (3) promotions went to black fire lieutenants and one (1) to an Hispanic fire lieutenant.

C. 1993 Fire Lieutenant Examination #39202

44. The 1993 fire lieutenant promotional examination #39202 was announced on December 1, 1992. Applications for fire lieutenant promotional examination #39202 were taken between December 1, 1992 and December 31, 1992. Persons holding the rank of firefighter or fire engineer were eligible to take that examination.

45. Fire lieutenant promotional examination #39202 was developed by HRStrategies, Inc. Arthur Andersen Co. administered the test and secured the test documents. Fire lieutenant promotional examination #39202 consisted of three parts, a written multiple choice test, an oral board interview and credit for seniority.

46. After gathering background information about the CFD and prior testing procedures, HRStrategies, Inc. did a content-oriented job analysis of the position of fire lieutenant. This process began by having subject matter experts (incumbent fire lieutenants) determine the tasks and duties of the job. The lieutenants then evaluated the tasks in terms of importance to the job. Important tasks were then grouped into dimensions or categories. Next, higher-ranking subject matter experts (incumbent fire captains and battalion chiefs) determined the knowledge, skills and abilities ("KSA's") required to perform the job of fire lieutenant. These KSA's, after being evaluated in terms of importance, were used to develop specific items for the test, thus ensuring the content validity of the selection device.

47. The four (4) task categories or dimensions and their weights based on their relative importance to the job were Supervision and Administration (23%), Incident Response (45%), Training (20%) and Fire Prevention Inspection (11%). The goal of HRStrategies, Inc. was to develop a test that would be related to these job categories and the KSA's linked to the specific tasks within each job category.

48. The process described above is detailed in the May, 1993 "Technical Report on the Development of a Promotional Examination for Chicago Fire Department Lieutenant," which was prepared by HRStrategies, Inc.

49. The test applicants were provided with a list of source materials to study. These source materials included general orders, CFD memos, special directives and training bulletins. The applicants also were provided with test-taking tips prepared by HRStrategies.

50. HRStrategies, Inc. worked with high-ranking subject matter experts (fire captains and battalion chiefs) to develop the written multiple choice component of fire lieutenant promotional examination #39202. The written component of the test had three (3) parts, an Open Book section, a Closed Book section and a Work Sample section. Three (3) forms of the written test were created. All three (3) forms contained the same questions but the questions were in different orders on alternate versions of the test.

51. The written component of fire lieutenant promotional examination #39202 was administered on January 30, 1993 to 2,068 candidates who had applied to take the test. Of those, 1,362 (65.9%) were white; 505 (24.4%) were black; 176 (8.5%) were Hispanic; 13 (0.6%) were Asian-American; and 12 (0.6%) were American Indian.

52. Those who passed the written component of fire lieutenant promotional examination #39202 were allowed to take the oral board component. A passing score on the written component was selected that would enable approximately three (3) times as many candidates as were anticipated to be promoted off of the resulting eligible list to advance to the oral board component. At the time the passing score was determined, it was projected that 350 promotions would be made based on fire lieutenant promotional examination #39202. Therefore, a passing score was set that would allow about 1,050 candidates to continue on in the promotional process. That point was the mean of the total distribution of scores. The written score was then converted to a 100-point scale in which 70 served as the pass point. This calculation was not based on race.

53. At a score of 70 on the written component, 1,091 (52.7% of all test takers) were allowed to proceed to the oral board component of fire lieutenant promotional examination #39202. Eight (8) of the 13 Asian-Americans (61.5%), seven (7) of the 12 American Indians (58.3%), 136 of the 505 African-Americans (26.9%), 73 of the 176 Hispanics (41.5%) and 867 of the 1,362 whites (63.7%) who took the written component passed.

54. HRStrategies, Inc. worked with another group of high — ranking CFD officers who served as subject matter experts to develop the oral board component of fire lieutenant promotional examination #39202. The oral board consisted of three (3) questions. The three (3) questions covered the categories of Supervision and Administration, Training and Incident Response. There were variations on the questions for each category.

55. The oral board component of fire lieutenant promotional examination #39202 was administered between March 2, 1993 and March 20, 1993. Of the 1,091 candidates eligible to take the oral board component, 33 did not take that test and two (2) arrived for the test but withdrew from consideration after the instructions had been read Of those 35 who did not complete the oral board, one (1) was American Indian and 34 were white.

56. A total of 1,056 candidates completed the oral board component of fire lieutenant promotional examination #39202.

57. To calculate the oral board score, the average of the independent ratings from the three (3) interviewers were taken for each of the three (3) questions. These three (3) oral-board averaged ratings for each candidate were standardized to convert the scores to a common mean and standard deviation. This process was not based on race. Those standardized oral scores were then converted to a scale in which a score of 100 was the maximum possible and a score of 70 was the pass point. This process also was not based on race.

58. To determine seniority credit, from a base score of 70, one (1) point was added for each month of service on the CFD, up to a maximum of 100 points.

59. The results of fire lieutenant promotional examination #39202 were weighted as follows: 60% written (combined Open and Closed Book 30% and Work Sample 30%), 30% oral, and 10% seniority.

60. Final test results of fire lieutenant promotional examination #39202 had an adverse impact against blacks and Hispanics under the 80% rule in the EEOC's Uniform Guidelines.

61. The City adopted a banding approach, slightly modified from the one HRStrategies, Inc. recommended, in making promotions based on the results of fire lieutenant promotional examination #39202. The City did use a band width of 6.02 points, or two (2) SEDs on that test, which HRStrategies, Inc. recommended

62. In or about May of 1993, an eligible list was created containing the rank order scores of the 1,056 candidates who took both the written and the oral components of fire lieutenant promotional examination #39202.

63. In a December 6, 1993 letter, Commissioner of Personnel Glenn E. Carr recommended to then Fire Commissioner Raymond E. Orozco that promotions from fire lieutenant promotional examination #39202 be made on an affirmative action basis. Commissioner Carr proposed that promotions be made at a ratio of 20% over the black and Hispanic composition of the ranks (firefighter and fire engineer) eligible for promotion to fire lieutenant, so long as any promotions out of rank order for affirmative action purposes are made within a band that was approximately six (6) points. A 6.0 band represented two (2) SEDs on that test.

64. Between August 16, 1993, and January 1, 1997, there were eight (8) personnel orders issued by the CFD, making 251 promotions to fire lieutenant from fire lieutenant promotional eligible list #39202. Of these 251 promotions to fire lieutenant, 55 promotions were made on a non-rank order basis and claimed by the City to be justified for reasons articulated in the December 6, 1993 letter from Commissioner Carr to Commissioner Orozco. Of these 55 affirmative action, non-rank order promotions, 38 promotions went to blacks and 17 to Hispanics.

65. On January 29, 1998, then Fire Commissioner Edward P. Airman issued P.O. No. 98-007, effective February 1, 1998. P.O. No. 98-007 included the following 13 fire lieutenant candidates with the following scores and ranks:

Personnel Order No. 98-007 (eff. 2/1/98)

Name Race Score Rank Date of Hire

Lawrence E. Flynn White 92.39 222 10/18/76 Edmund J. Jantz White 92.39 222 2/19/80 Ernest W. Peyronet American Indian 92.38 224 5/1/90 Terrence J. Casey White 92.36 225 7/16/77 Dominic G. Gibson White 92.31 227 2/20/80 Robert J. Koranda White 92.28 228 2/1/82 Martin G. Gaughan White 92.26 229 12/3/90 Thomas E. Misiewicz White 92.24 230 12/3/90 Brian J. Gillhooly White 92.23 231 2/19/80 John P. Joyce White 92.22 232 2/17/87 Patrick W. Blake White 92.21 234 2/1/82 Alan J. Lamm White 92.21 234 2/17/87 William J. Toman White 92.21 234 11/1/86 66. All 13 of the candidates promoted to fire lieutenant on P.O. No. 98-007 were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39202.

67. On February 13, 1998, then Fire Commissioner Edward P. Airman issued P.O. No. 98-009, effective February 16, 1998. P.O. No. 98-009 included the following 20 fire lieutenant candidates with the following scores and ranks:

Personnel Order No. 98-009 (eff. 2/16/98)

Name Race Score Rank Date of Hire

Gary E. Kuykendall White 92.20 237 2/17/87 John P. McCollam White 92.20 237 11/1/86 Randall W. Walz White 92.20 237 12/16/78 Terrence W. McShane White 92.19 240 2/15/80 Timothy T. Sampey White 92.19 240 7/16/86 Donald E. Mikesh White 92.18 242 3/1/80 Michael C. Gaughan White 92.14 243 2/18/80 John P. Spencer White 92.12 244 2/19/80 Kevin K. Bernaciak White 92.09 245 2/19/80 Bruce A. Kiel White 92.09 245 2/19/80 Patrick B. Harmon American Indian 92.07 247 12/1/88 Peter E. Biondo White 92.06 248 2/20/80 Michael J. Czerwionka White 92.06 248 7/16/86 Bruce E. Colby White 92.05 250 12/18/80 James P. McAndrew White 92.04 251 12/3/90 Robert H. Kuehl White 92.03 252 12/22/73 Roni L. Thielson White 92.03 252 10/18/82 Wayne R. Gayda White 91.97 254 2/15/80 Silvery B. Mitchell Black 86.35 605 8/3/87 Manuel Almodovar Hispanic 86.22 612 7/16/86 68. Eighteen (18) of the 20 fire lieutenant candidates on P.O. No. 98-009 were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39202. The other two (2) of those promotions (Mitchell and Almodovar) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 6, 1993 letter from Commissioner Carr to Commissioner Orozco.

69. On May 29, 1998, then Fire Commissioner Edward P. Airman issued P.O. No. 98-016, effective June 1, 1998. P.O. No. 98-016 included the following 30 fire lieutenant candidates with the following scores and ranks:

Personnel Order No. 98-016 (eff. 6/1/98)

Name Race Score Rank Date of Hire

Robert T. Gahagan White 91.93 255 11/16/78 William M. Malone White 91.91 255 2/14/80 Mark L. Imburgia White 91.91 257 8/3/87 James C. Dziedzic White 91.90 258 10/11/78 Roger R. Luedtke White 91.88 259 3/1/80 Lawrence M. Brackin White 91.87 260 2/19/80 Paul R. Gesiakowski White 91.85 261 8/3/87 Michael T. Kelly White 91.85 261 5/1/90 Terrence A. Lein White 91.85 261 11/1/89 Michael R. Wsol White 91.84 264 10/16/78 Steven F. Ives White 91.82 265 2/1/83 Jeffrey H. Peretz White 91.82 265 11/16/78 Peter M. Eck White 91.81 268 5/2/88 Wayne M. Varney White 91.77 269 9/4/79 Louis W. Bruno White 91.76 270 10/16/78 Lawrence P. O'Brien* White 91.72 273 2/20/80 Connell P. O'Connor White 91.72 273 2/14/80 John W. McAndrew White 91.66 276 11/1/89 Michael J. Reno White 91.66 276 11/1/89 William A. Dougherty White 91.64 278 8/16/77 Michael J. Kammerer White 91.64 278 2/10/75 Alan R. Dean White 91.62 281 2/4/80 Alfred D. Hain White 91.61 282 9/4/79 Edward J. Ryan White 91.61 282 2/19/80 Victor M. Rodriguez Hispanic 86.11 618 2/1/83 Eddie L. Banks Black 85.98 623 2/16/85 Willard J. Burton Black 85.98 623 7/16/77 Anthony L. Williams Black 85.96 627 2/19/80 Gloria J. Marshall Black 85.95 628 5/2/88 Adalberto Nunez Hispanic 85.94 629 7/16/86 *Michael R. Wsol and Lawrence P. O'Brien are plaintiffs in Horan.

70. Twenty-four (24) of the 30 fire lieutenant candidates on P.O. No. 98-016 were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39202. The other six (6) promotions (Rodriguez, Banks, Burton, Williams, Marshall and Nunez) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 6, 1993 letter from Commissioner Carr to Commissioner Orozco.

71. On June 9, 1998, then Fire Commissioner Edward P. Airman issued P.O. No. 98-017, effective June 16, 1998. P.O. No. 98-017 included the following 15 fire lieutenant candidates with the following scores and ranks:

Personnel Order No. 98-017 (eff. 6/19/98)

Name Race Score Rank Date of Hire

John R. Colby White 91.60 284 2/17/87 Thomas A. Senderak White 91.60 284 2/19/80 Kevin M. Hicks White 91.59 286 7/16/86 David W. Chimino White 91.55 287 9/4/79 Joseph P. Summerville White 91.50 288 2/18/80 Jeffrey A. Mayer White 91.46 289 8/3/87 John W. Benuzzi White 91.44 290 2/20/80 Robert J. Molinari White 91.44 290 7/16/86 John D. Richards White 91.37 292 2/17/87 Nicholas C. Cavaligos White 91.36 293 7/16/86 Jose Nodal Hispanic 85.89 635 11/1/88 Albert S. Harvey Black 85.81 643 2/20/80 Richard C. Ford Black 85.72 645 2/1/83 Lagrant K. Davis Black 85.63 650 2/20/80 Stephen E. Whitman Black 85.59 652 2/19/80 72. Ten (10) of the 15 fire lieutenant candidates on P.O. No. 98-017 were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39202. The other five (5) promotions (Nodal, Harvey, Ford, Davis and Whitman) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 6, 1993 letter from Commissioner Carr to Commissioner Orozco.

73. On June 16, 1998, then Fire Commissioner Edward P. Airman issued P.O. No. 98-017A, effective June 16, 1998. On that promotion order, Joseph P. Summerville and John D. Richards, whose names appear on P.O. No. 98-017, were deleted Summerville voluntarily waived the fire lieutenant promotion offered to him and Richards failed the drug screen. P.O. No. 98-017A replaced Summerville and Richards with the following two (2) fire lieutenant candidates with the following scores and ranks:

Personnel Order No. 98-O17A (eff. 6/16/98)

Name Race Score Rank Date of Hire

Gerald L. Hughes White 91.35 294 8/3/87 Robert L. Panatera White 91.35 294 3/1/80

74. Both of the two (2) fire lieutenant candidates on P.O. No. 98-017A were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39202.

75. On June 18, 1999, then Fire Commissioner Edward P. Airman issued P.O. No. 99-011, promoting 21 fire lieutenant candidates, effective July 1, 1999. Those candidates had the following scores and ranks:

Personnel Order No. 99-011 (eff. 7/1/99)

Name Race Score Rank Date of Hire

John T. Heeter White 91.75 271 11/1/89 Joseph P. Summerville White 91.50 288 2/18/80 John D. Richards White 91.37 292 2/17/87 Joseph E. Musolino White 91.34 296 10/10/78 Timothy J. Fitzgerald White 91.33 297 2/18/80 Thomas J. Tragos White 91.27 299 5/2/88 William B. Windt White 91.27 299 2/15/80 Kevin J. Graves White 91.20 302 2/1/83 David D. Maty White 91.19 304 2/20/80 Tamara L. O'Hern-Cronk White 91.17 305 5/2/88 Roger J. Farrell White 91.16 306 7/16/86 John J. Leyden White 91.15 307 5/1/90 Mark S. Runas White 91.14 308 2/17/87 Joseph Elmore White 91.13 309 2/20/80 Clifford R. Gartner White 91.10 310 9/4/79 Patrick J. Joyce White 91.10 310 2/21/80 Terrence P. Sheppard White 91.10 310 2/16/83 Dennis J. Darling* White 91.06 313 2/19/80 Michael L. Imburgia White 91.06 313 11/1/88 Stanley A. Williams Black 85.42 663 7/16/86 Marvin L. Johnson Black 85.35 664 2/15/80 *Dennis Darling is a plaintiff in Horan.

76. Nineteen (19) of the 21 fire lieutenant candidates promoted effective July 1, 1999 on P.O. No. 99-011 were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39202. The other two (2) promotions (Williams and Johnson) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 6, 1993 letter from Commissioner Carr to Commissioner Orozco.

77. On P.O. No. 99-011, 24 fire lieutenant candidates were promoted, effective July 16, 1999. Those candidates had the following scores and ranks:

Personnel Order No. 99-011 (eff. 7/16/99)

Name Race Score Rank Date of Hire

John W. Fox White 91.03 315 7/16/86 Kurt Janus White 91.01 316 5/2/88 Brendan P. McCormick White 90.98 317 12/3/90 Jeffrey Cunningham White 90.97 318 3/3/87 Robert J. Hirtzer White 90.97 318 2/19/80 Robert R. Fletcher White 90.95 321 2/16/77 Patrick G. Ponti White 90.94 322 12/3/90 Kenneth P. Kozlowski White 90.91 323 2/19/80 Michael D. Pool White 90.90 324 8/3/87 Patrick A. Wietlspach White 90.90 324 2/15/80 John M. Leonard White 90.89 326 2/15/80 Steve F. Manfreda White 90.89 326 3/1/80 David B. McElroy White 90.87 328 2/14/80 Harold D. Turrentine White 90.87 328 11/1/86 Scott T. Whalen White 90.86 330 2/20/80 Thomas S. Banks White 90.83 333 2/18/80 Robert J. Jurewicz White 90.83 333 7/16/86 Thomas E. Hughes White 90.82 336 12/22/73 William S. Kendrick Black 85.27 668 2/1/83 Carlos A. Moreno Hispanic 85.27 668 11/1/89 Ronald R. Hall Black 85.26 670 12/3/90 Antonio Knezevich Hispanic 85.14 674 2/1/83 Sharrieff L. Lanier* Black 85.13 676 2/19/80 Franklin M. Blyden Black 85.11 679 2/19/80 *Sharrieff L. Lanier was formerly known as Leonard White.

78. Eighteen (18) of the 24 fire lieutenant candidates promoted effective July 16, 1999 on P.O. No. 99-011 were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39202. The other six (6) promotions (Kendrick, Moreno, Hall, Knezevich, Lanier and Blyden) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 6, 1993 letter from Commissioner Carr to Commissioner Orozco.

79. On July 13, 1999, then Fire Commissioner Edward P. Airman issued P.O. No. 99-011 A, effective July 16, 1999. On that promotion order, Joseph P. Summerville, whose name appears on P.O. No. 99-011, was deleted Summerville voluntarily waived the fire lieutenant promotion offered to him.

80. All of the candidates promoted out of rank order from the eligible list based on fire lieutenant promotional examination #39202 were eligible to be fire lieutenants because they received a passing score of 70 or higher on that test.

81. All of the candidates promoted out of rank order for affirmative action purposes from the eligible list based on fire lieutenant promotional examination #39202 received a score within 6.02 points of the candidates promoted in rank order at the same time they were promoted, except as to John T. Heeter (white) and John Summerville (white) whose names appear on P.O. No. 99-011 (effective July 1, 1999). Heeter and Summerville's scores were above the band. Heeter would have been promoted earlier but was not eligible because he was in an inactive status on duty disability. Summerville waived an earlier promotion offered to him. When a candidate is ineligible or waives, the band slides down to the next candidate on the list who has not yet been promoted.

82. The CFD did not make any further promotions from fire lieutenant eligible list #39202 after the lieutenant promotions made effective July 116, 1999. On November 9, 2000, the DOP officially canceled the eligible list based on fire lieutenant examination #39202 and adopted the eligible list based on the subsequent fire lieutenant examination #39903. The first round of promotions from fire lieutenant eligible list #39903 were made effective November 16, 2000.

83. Pursuant to the wrap-around agreement in the CBA between the City and Local No. 2, 21 candidates from the eligible list based on fire lieutenant promotional examination #39202 were placed at the top of the eligible list that resulted from fire lieutenant promotional examination #39903. Those 21 candidates were promoted to fire lieutenant on P.O. No. 2000-26, which was issued by Fire Commissioner James T. Joyce on November 13, 2000 and became effective on November 16, 2000. Those 21 candidates achieved the following scores and ranks on fire lieutenant promotional examination #39202:

Personnel Order No. 2000-26 (eff. 11/16/00)

Name Race Score Rank Date of Hire

Robert T. O'Toole* White 90.81 337 2/1/83 Roman T. Paluch* White 90.78 338 12/3/90 Thomas M. Miller* White 90.77 339 11/1/86 Craig V. Foch* White 90.75 340 7/16/86 Stanley Wozniak* White 90.75 340 10/16/78 James M. Banks* White 90.74 342 11/16/78 John A. McCarthy* White 90.74 342 3/1/80 Scott L. Wisniewski* White 90.73 344 2/15/80 Michael J. Roche* White 90.66 347 11/01/86 Steven M. Brady* ** White 90.64 348 12/3/90 Brian E. Smith* White 90.63 349 5/1/90 John Bucher* White 90.61 350 2/17/87 Michael T. Roche* White 90.61 350 11/1/89 Theodore J. Eck* White 90.60 352 2/15/80 Richard E. Lynch* White 90.58 355 2/16/85 Kenneth M. Vaclavik* White 90.58 355 2/16/85 Kurt L. Rouette* White 90.57 357 4/16/70 Robert P. Casey* White 90.56 359 2/4/82 John E. Hall White 90.55 360 2/17/87 Gregg M. Reynolds* White 90.55 360 11/1/88 James P. Kleinick* White 90.54 362 2/15/80 *Robert J. O'Toole, Thomas Miller, Roman J. Paluch, Craig V. Foch, Stanley Wozniak, James M. Banks, John A. McCarthy, Scott L. Wisniewski, Michael J. Roche, Brian E. Smith, Steven M. Brady, John Bucher, Michael T. Roche, Theodore J. Eck, Richard E. Lynch, Kenneth M. Vaclavik, Kurt L. Rouette, Robert P. Casey, Gregg M. Reynolds and James P. Kleinick are plaintiffs in Horan.

**Plaintiff Steven M. Brady was listed on P.O. No. 2000-26 but later waived his promotion.

84. Pursuant to the wrap-around agreement in the CBA between the City and Local No. 2, an additional 24 candidates from the eligible list based on fire lieutenant promotional examination #39202 were included on P.O. No. 2001-018, which was issued by Fire Commissioner James T. Joyce on July 24, 2001 and became effective August 1, 2001. Those 24 candidates achieved the following scores and ranks on fire lieutenant promotional examination #39202:

Personnel Order No. 2001-018 (eff. 8/1/01) Name Race Score Rank Date of Hire

Steven M. Brady* ** White 90.64 348 12/3/90 James G. Roccasalva* White 90.54 362 2/18/80 James C. Holtz* White 90.53 364 4/15/76 Terry D. Benner* White 90.52 365 7/16/86 John W. Chwarzynski* White 90.50 366 2/17/87 Keith B. Oliver* White 90.49 367 12/3/90 Kevin B. Clark* White 90.47 369 11/1/89 James M. Blake* White 90.45 372 12/1/88 Thomas J. Schergen* White 90.44 272 2/14/80 Dennis M. Oswald White 90.40 276 11/1/89 Terence P. Totte* White 90.36 277 10/10/78 Daniel E. O'Farrell, Jr.* White 90.32 278 7/16/86 Joseph A. Brennan, Jr.* White 90.28 279 10/10/78 Ronald E. Michi White 90.25 381 2/18/80 Joseph F. Trotta* White 90.25 381 2/18/80 James F. Ward White 90.25 381 7/16/86 Kevin E. Nitsche* White 90.24 384 12/1/88 John V. Gariti* White 90.23 385 7/16/86 Andrew B. Kooistra* White 90.22 386 12/1/88 William G. Duffy* White 90.21 387 9/4/79 Eugene H. Kuc White 90.21 387 9/4/79 Scott M. Lynch White 90.20 389 5/1/90 Joel E. Burns* White 90.18 390 11/1/89 Timothy M. Corcoran White 90.17 391 2/1/83 *Steven M. Brady, James G. Roccasalva, James C. Holtz, Terry D. Benner, John W. Chwarzynski, Keith B. Oliver, Kevin B. Clark, James M. Blake, Thomas J. Schergen, Terrence P. Totte, Kevin E. Nitsche, John V. Gariti, Andrew B. Kooistra, William G. Duffy and Joel E. Burns are plaintiffs in Horan.

*Plaintiff Steven M. Brady was listed on P.O. No. 2001-018 but later waived his promotion.

85. Pursuant to an arbitration award, the candidates promoted to fire lieutenant in that second set of wrap-around promotions retroactively received lieutenant's pay from November 16, 2000, the date of the first set of wrap arounds, to August 1, 2001.

86. A total of 98 promotions to fire lieutenant were offered and accepted subsequent to March 1, 1997 and up to and including the ones made effective July 1, 1999 (the rounds of promotions from the 1993 lieutenant examination at issue in this litigation). Of those 98 promotions to fire lieutenant from fire lieutenant eligible list #39202, 15 were made on a non-rank order basis and claimed be the City to be justified for the reasons articulated in Commissioner Carr's December 6, 1993 letter to then Commissioner Orozco. Of those 15 non-rank order promotions, 11 promotions went to black candidates and four (4) went to Hispanic candidates.

D. 1994 Fire Engineer Examination #39305

87. The 1994 fire engineer promotional examination #39305 was announced on September 16, 1993. Applications for fire engineer promotional examination #39305 were taken between September 24, 1993 and September 30, 1993. All firefighters with one year's seniority and a driver's license issued on or after April 1, 1990 with a classification of B or a driver's license issued prior to April 1, 1990 with a classification of C or D were eligible to take the examination.

88. The City retained HRStrategies, Inc., a management consulting firm, to develop fire engineer promotional examination #39305. The City also retained the public accounting firm of Arthur Andersen Co. to administer the test and to secure the test documents. Fire engineer promotional examination #39305 consisted of three parts, a written multiple choice test, a pump simulator test and credit for seniority.

89. After gathering background information about the CFD and prior testing procedures, HRStrategies, Inc. did a content-oriented job analysis of the position of fire engineer. This process began by having subject matter experts (incumbent fire engineers) determine the tasks and duties of the job. The engineers then evaluated the tasks in terms of their importance to the job. Important tasks were then grouped into dimensions or categories. Next, higher-ranking subject matter experts (incumbent fire lieutenants and fire captains) determined the knowledge, skills and abilities ("KSA's") required to perform the job of fire engineer. These KSA, after being evaluated in terms of importance, were used to develop specific items for the test, thus ensuring the content validity of the selection device.

90. The four task categories or dimensions and their weights based on their relative importance to the job were Incident Response (46%), Morning Equipment Checkout (29%), Apparatus Maintenance, Equipment Tests and Training Exercises (19%) and Maintenance of Physical Plant (6%). The goal of HRStrategies, Inc. was to develop a test that would be related to these job categories and the KSA's linked to the specific tasks within each job category.

91. The process described above is detailed in the June, 1994 "Technical Report on the Development of a Promotional Examination for Chicago Fire Department Engineer," which was prepared by HRStrategies, Inc.

92. The test applicants were given a training bulletin that provided essential information for the examination. They also were sent a handout describing each component of the test and suggestions on how to study and prepare for those test components.

93. HRStrategies, Inc. worked with two high-ranking CFD officers and the chief engineer to develop the pump simulator test, the first component of fire engineer promotional examination #39305. The purpose of that test was to try to simulate supplying a pressurized stream of water at a fire scene, one of the essential duties of a fire engineer.

94. Prior to the administration of fire engineer promotional examination #39305, the CFD offered training in pump operations to all candidates who wanted such training. Once the candidates arrived at the test site, they were given a brief written overview of the pump simulation and watched a short video about the pump simulators.

95. Eight-hundred and one (801) candidates were scheduled to take the pump simulator component of fire engineer promotional examination #39305. However, 251 of those candidates did not take the pump simulator component. Of the 550 candidates who took the pump simulator component, four (4) (.7%) were Asian American, three (3) (.5%) were American Indian, 163 (29%) were black, 43 (7.8%) were Hispanic, and 337 (61.3%) were white.

96. The candidates were allowed to choose whether they would use a Waterous or a Hale simulator.

97. The pump simulator component of fire engineer promotional examination #39305 consisted of four (4) fireground problems. The mean score of blacks on the first problem was statistically significantly lower than the mean score of whites and Hispanics. The mean scores of blacks and Hispanics on the last three (3) problems were statistically significantly lower than the mean scores of whites.

98. To determine the score on the pump simulator component of fire engineer promotional examination #39305, each of the four (4) problems was standardized to place all four (4) scores on a common scale and to give each pump simulator problem the same weight. The four (4) scores were then added together to create a final pump simulator score, which was then standardized so that it could be combined with the other test components. These standardization processes were not based on race.

99. The written multiple choice component of fire engineer promotional examination #39305 consisted of two (2) parts. One part was a Closed Book test to assess a candidate's knowledge of CFD equipment, CFD general orders, the CFD engineer's manual and other CFD documents. Four (4) fire lieutenants served as subject matter experts in the development of the Closed Book test. The second part was a Video test. The primary purpose of the Video test was to determine whether candidates were familiar with basic tools and equipment, could identify the purpose of various dials and gauges on pump panels and could read gauges and interpret their meaning. Candidates would have a brief question read to them with a video accompaniment, and then four (4) alternative answers would be presented on a screen from which the candidate had to choose the correct response. Two (2) high-ranking CFD officers participated in the development of the Video test.

100. The written component of fire engineer promotional examination #39305 was administered on November 22, 1993 to 553 candidates. Of the 553 candidates who took the written component, 533 had taken the pump simulator component and 20 had not. Seventeen (17) candidates who had taken the pump simulator component did not take the written component. Of the 553 who took the written component, four (4) (.7%) were Asian American, three (3) (.5%) were American Indian, 167 (30.2%) were black, 42 (7.2%) were Hispanic and 337 (61%) were white.

101. The mean score of blacks was statistically significantly lower on the Closed Book part of the written component of fire engineer promotional examination #39305 than the mean scores of whites and Hispanics. The mean scores of blacks and Hispanics on the Video part of the written component of the examination were statistically significantly lower than the mean score of whites.

102. Seniority was credited at a rate of one (1) point for each month of service with the CFD, up to five (5) years of service. The seniority score was standardized so that it could be added to the other examination components. This standardization was not based on race.

103. For seniority, there was no statistically significant difference among race groups.

104. The results of fire engineer promotional examination #39305 were weighted as follows: 60% written (30% Closed Book, 30% Video), 30% pump simulator and 10% seniority.

105. The means and standard deviations of the overall test results showed no statistically significant differences among race groups.

106. The City adopted a banding approach, slightly modified from the one HRStrategies, Inc. recommended, in making promotions based on the results of fire engineer promotional examination #39305. The City did use a band width of 12.23 points, or two SEDs, which HRStrategies, Inc. recommended.

107. On November 17, 1994, an eligible list was created containing in rank order the scores of the 345 candidates who received a passing score of 70 or above on fire engineer promotional examination #39305.

108. In a December 1, 1994 letter, Commissioner of Personnel Glenn E. Carr recommended to then Fire Commissioner Raymond E. Orozco that promotions from fire engineer promotional examination #39305 be made on an affirmative action basis. Commissioner Carr proposed that promotions be made at a ratio of 20% over the black and Hispanic composition of the rank (firefighter) eligible for promotion to fire engineer, so long as any promotions made out of rank order for affirmative action purposes are made within a 12.23-point band. The 12.23 point band represents two (2) SEDs.

109. The City of Chicago developed an eligible list for fire engineer promotional examination #39305, listing in rank order, by cumulative score, the 345 firefighters who attained passing scores of 70 or above on fire engineer promotional examination #39305.

110. Between December 16, 1994 and March 1, 1997, there were nine (9) personnel orders issued by the CFD, making 168 promotions to fire engineer from fire engineer promotional eligibility list #39305. Of these 168 promotions to fire engineer from fire engineer promotional eligibility list #39305, 53 were made on a non-rank order basis and claimed by the City to be justified for reasons articulated in the December 1, 1994 letter from Commissioner Carr to Commissioner Orozco. Of these 53 affirmative action, non-rank order promotions, 41 promotions went to blacks and 12 to Hispanics.

111. On July 17, 1997, then Fire Commissioner Edward P. Airman issued P.O. No. 97-015, effective August 1, 1997. P.O. No. 97-015 included the following 15 fire engineer candidates with the following scores and ranks:

Personnel Order No. 97-015 (eff. 8/1/97)

Name Race Score Rank Date of Hire

Richard F. Gubala White 83.28 129 11/1/89 Ronald W. Moravek White 82.15 143 11/1/89 Gale L. Stoffregen White 82.07 144 2/17/87 William F. Gavin White 81.94 147 2/20/80 Brian J. Bauer White 81.93 148 2/19/80 Robert S. Jones, Jr. White 81.91 149 3/1/80 George M. Howell White 81.90 150 2/15/80 Nancy Siedlecki White 81.81 151 5/2/80 Kenneth Pro White 81.67 152 2/19/80 Dennis Szczepaniak White 81.65 153 2/18/80 Larry T. Johnson* Black 73.31 297 11/1/86 Arterlee Anderson Black 72.92 300 2/21/80 Jesse L. Jackson Black 72.57 305 7/16/86 Kenneth Hardin Black 72.43 306 7/16/86 Jesus J. Chavez Hispanic 70.97 332 5/1/90 *Larry T. Johnson changed his name to Lorenzo Ayala.

112. Ten (10) of the 15 fire engineer candidates on P.O. No. 97-015 were promoted in rank order from the eligible list based on fire engineer promotional examination #39305. The other five (5) promotions (Johnson, Anderson, Jackson, Hardin and Chavez) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reason as stated in the December 1, 1994 letter from Commissioner Carr to Commissioner Orozco.

113. On January 29, 1998, then Fire Commissioner Edward P. Airman issued P.O. No. 98-007, effective February 1, 1998. P.O. No. 98-007 included the following 10 fire engineer candidates with the following scores and ranks:

Personnel Order No. 98-007 (eff. 2/1/98)

Name Race Score Rank Date of Hire

Harry J. Rolston White 81.62 154 2/18/80 Thomas J. Tragos White 81.14 160 5/2/88 William G. Duffy White 81.13 161 9/4/79 Anthony E. Lona White 80.90 163 2/18/80 Joseph Catanzaro, Jr. White 80.67 164 5/1/90 John W. Ciszek White 80.57 165 5/2/88 Reynaldo Guevara Hispanic 75.10 264 7/16/86 James L. Cunningham Black 72.41 307 2/15/80 Silvery B. Mitchell Black 72.33 309 8/3/87 Herbert Savage Black 72.13 314 7/16/86 114. Six (6) of the 10 fire engineer candidates on P.O. No. 98-007 were promoted in rank order from the eligible list based on fire engineer promotional examination #39305. The other four (4) promotions (Guevara, Cunningham, Mitchell and Savage) were made out of rank order and claimed by the City to be justified for affirmative action reasons as stated in the December 1, 1994 letter from Commissioner Carr to Commissioner Orozco.

115. All of the candidates promoted out of rank order from the eligible list based on fire engineer examination #39305 were eligible to be fire engineers because they received a passing score of 70 or higher on that test.

116. All of the candidates promoted out of rank order for affirmative action reasons from the eligible list based on fire engineer promotional examination #39305 received a score within 12.23 points of the candidates promoted in rank order at the same time they were promoted, except as to Richard F. Gubala (white), whose name appears on P.O. No. 97-015 (effective August 1, 1997). Gubala's score was above the band. Gubala waived an earlier promotion offered to him. When a candidate waives a promotion, the band slides down to next candidate on the list who has not yet been promoted.

117. The CFD did not make any further promotions from fire engineer eligible list #39305 after the engineer promotions made effective February 1, 1998. On July 9, 1998, the DOP officially canceled the eligible list based on fire engineer examination #39305 and adopted the eligible list based on the subsequent fire engineer examination #39702. The first round of promotions from fire engineer eligible list #39702 were made effective July 1, 1999.

118. Pursuant to the wrap-around agreement in the CBA between the City and Local No. 2, four (4) candidates from the eligible list based on fire engineer promotional examination #39305 were placed at the top of the eligible list that resulted from fire engineer promotional examination #39702. Those four (4) candidates were promoted to fire engineer on P.O. No. 99-011, which was issued by then Fire Commissioner Edward P. Airman on June 18, 1999 and became effective July 1, 1999. Those four (4) candidates had the following scores and ranks on fire engineer examination #39305:

Personnel Order No. 99-011 (eff. 7/1/99)

Name Race Score Rank Date of Hire

Robert C. Lancaster White 80.53 168 11/1/88 Thomas W. Pepper White 80.52 170 2/18/80 Richard H. Simpson White 80.40 172 8/3/87 Thaddeus Capjak White 80.33 173 7/16/86 119. Pursuant to an arbitration award, as part of P.O. No. 2001-018, issued by Fire Commissioner James T. Joyce on July 24, 2001, and effective August 1, 2001, the City made 16 additional wrap-around promotions to candidates from the eligible list based on fire engineer promotional examination #39305. Those 16 candidates had the following scores and ranks on fire engineer promotional examination #39305: Name Race Score Rank Date of Hire Zaim Durovic White 80.32 174 5/2/88 Thomas E. Carbonneau White 80.15 176 2/19/80 Angelo J. Imparato* White 80.02 179 2/16/77 Donald J. Matthews* White 79.69 184 11/1/86 Fakhri M. Isa* White 79.67 186 2/18/80 Mel Charoenrath* Asian American 79.63 187 11/1/88 Daniel J. Sullivan* White 79.53 190 5/2/88 Viorel Stirbu* White 79.53 190 8/3/87 Matthew J. Mowen* White 79.51 192 2/17/87 Bernard L. Malnarick White 79.43 193 1/2/8O Bradley F. Wilson* White 78.94 201 7/16/86 Lee J. Yankowski White 78.81 204 2/15/80 Mark J. Wasinski White 78.76 206 5/2/88 Joseph S. Estka White 78.29 210 5/2/88 David P. Rowan White 78.05 218 2/18/80 John J. Brannigan White 78.05 218 11/1/88 *Angelo J. Imparato, Donald J. Matthews, Fakhri M. Isa, Mel Charoenrath, Daniel J. Sullivan, Viorel Stirbu, Matthew J. Mowen, and Bradley F. Wilson are plaintiffs in Horan.

120. Pursuant to an arbitration award, the candidates promoted to fire engineer in that second set of wrap-around promotions retroactively received engineer's pay from July 1, 1999, the effective date of the first set of wrap arounds, to August 1, 2001.

121. A total of 25 promotions to fire engineer were offered and accepted subsequent to March 1, 1997 and up to and including the ones made effective February 1, 1998 (the rounds of promotion from the 1994 engineer examination at issue in this litigation). Of those 25 promotions to fire engineer from fire engineer eligible list #39305, nine (9) were made on a non-rank order basis and claimed by the City to be justified for the reasons articulated in Commissioner Carr's December 1, 1994 letter to then Commissioner Orozco. Of the nine (9) affirmative action, non-rank order promotions, seven (7) promotions went to black firefighters and two (2) went to Hispanic firefighters.

E. 1995 Fire Battalion Chief Examination #39308

122. The 1995 fire battalion chief examination #39308 was announced on October 8, 1993. Applications for fire battalion chief examination #39308 were taken between October 8, 1993 and November 5, 1993. Persons holding the rank of fire captain were eligible to take that examination.

123. The City retained HRStrategies, Inc., a management consulting firm, to develop fire battalion chief examination #39308. The City also retained the public accounting firm of Arthur Andersen Co. to administer the test and secure the test documents. Fire battalion chief examination #39308 consisted of three parts, a written multiple choice test, an oral/proficiency test and credit for seniority.

124. After gathering background information about the CFD and prior testing procedures, HRStrategies, Inc. did a content-oriented job analysis of the position of fire battalion chief. This process began by having subject matter experts (incumbent fire battalion chiefs) determine the tasks and duties of the job. The battalion chiefs then evaluated the tasks in terms of importance to the job. Important tasks were then grouped into dimensions or categories. Next, subject matter experts (fire battalion chiefs and Deputy District Chiefs) determined the knowledge, skills and abilities ("KSA's") required to perform the job of fire battalion chief. These KSA's, after being evaluated in terms of importance, were used to develop specific items for the test, thus ensuring the content validity of the selection device.

125. The four (4) task categories or dimensions and their weights based on their relative importance to the job were Supervision and Administration (33.18%), Training (24.00%), Operations (36.70%) and Fire Prevention (6.12%). The goal of HRStrategies, Inc. was to develop a test that would be related to these job categories and the KSA's linked to the specific tasks within each job category.

126. The process described above is detailed in the January 1995 "Technical Report on the Development of a Promotional Examination for Chicago Fire Department Battalion Chief," which was prepared by HRStrategies, Inc.

127. The test applicants were provided with a list of source materials to study. These source materials included general orders, CFD memos, special directives and training bulletins. The applicants also were provided with test-taking tips prepared by HRStrategies, Inc.

128. HRStrategies, Inc. worked with subject matter experts (fire battalion chiefs) to develop the written multiple choice component of fire battalion chief promotional examination #39308. The written component of the test had two (2) parts, a Closed Book section and a Work Sample section.

129. The written component of fire battalion chief promotional examination #39308 was administered on November 23, 1993 to 143 candidates who applied to take the test. Of those, 115 (80.4%) were white; 22 (15.4%) were black; and six (6) (4.2%) were Hispanic.

130. The mean scores for minorities were statistically significantly lower than mean score of whites on both the Closed Book section and the Work Sample section of the written component of fire battalion chief examination #39308.

31. HRStrategies, Inc. worked with another group of high — ranking CFD officers who served as subject matter experts to develop the oral interview component of fire battalion chief promotional examination #39308. The oral interview consisted of two (2) questions. The two (2) questions covered the areas of incident responses and incident critique. There were variations on the questions for each area.

132. The oral interview component of fire battalion chief promotional examination was administered between February 7, 1994 through February 10, 1994. A total of 138 candidates took the oral interview portion of fire battalion chief promotional examination #39308. Of those, 111 (80.4%) were white; 21 (15.2%) were black; and six (6) (4.4%) were Hispanic.

133. To calculate the oral interview score, the agreed-upon group rating ("consensus rating") of the three (3) interviewers were taken for each of the two (2) questions, an incident response question and an incident critique question. These two (2) consensus ratings for each candidate were standardized to convert scores to a common mean and standard deviation. This process was not based on race.

134. The mean scores of minorities on both the incident response and incident critique questions were statistically significantly lower than the mean scores of whites.

135. Seniority was credited at a rate of one (1) point per year up through 15 years of service. Candidates with more than 15 years of service had their seniority set to the maximum of 15 points.

136. The mean scores of minorities on the seniority component were not statistically significantly different from the mean score of whites on that component.

137. The results of fire battalion chief promotional examination #39308 were weighted as follows: 60% written (combined Closed Book 30% and Work Sample 30%), 30% oral, and 10% seniority. HRStrategies, Inc. recommended these weights. HRStrategies, Inc. selected those weights to optimize the selection of fire battalion chiefs, to minimize adverse impact against protected groups and to comply with the CBA between the City and Local No. 2.

138. Although no statistically significant differences existed between minorities and whites on the final score, use of a straight top down selection approach on fire battalion chief examination #39308 would result in adverse impact against black and Hispanic candidates under the 80% rule in the EEOC's Uniform Guidelines.

139. The City adopted a banding approach, slightly modified from the one HRStrategies, Inc. recommended, in making promotions based on the results of fire battalion chief promotional examination #39308. The City did use a band width of 8.48 points, or two SEDs, which HRStrategies, Inc. recommended.

140. On July 17, 1995, an eligible list was adopted containing the rank order scores of the candidates who participated in fire battalion chief promotional examination #39308.

141. In an April 8, 1996 letter, Commissioner of Personnel Glenn E. Carr recommended to then Fire Commissioner Raymond E. Orozco that promotions from fire battalion chief promotional examination #39308 be made on an affirmative action basis. Commissioner Carr proposed that promotions be made at a ratio of 20% over the black and Hispanic composition of the rank (fire captain) eligible for promotion to fire battalion chief, so long as any promotions out of rank order for affirmative action purposes are made within an 8.48-point band. The 8.48-point band represents two (2) SEDs.

142. On July 17, 1995, then Fire Commissioner Raymond E. Orozco issued P.O. No. 95-016, effective August 1, 1995. P.O. No. 95-016 included the following six (6) fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 95-016 (eff. 8/1/95)

Name Race Score Rank Date of Hire

Michael W. Fox White 100.00 1 10/10/78 Paul R. Martin White 99.61 2 4/15/76 Michael E. Callahan White 98.84 3 1/1/80 Robert L. McKee White 98.30 4 10/16/78 John W. Edwards White 98.02 5 3/1/75 Mark A. Nielson White 97.58 6 2/20/80 143. All six (6) of the candidates promoted to fire battalion chief on P.O. No. 95-016 were promoted in rank order from the eligible list based on fire battalion chief promotional examination #39308.

144. On December 15, 1995, then Fire Commissioner Raymond E. Orozco issued P.O. No. 95-025, effective January 1, 1996. P.O. No. 95-025 included the following seven (7) fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 95-025 (eff. 1/1/96) Name Race Score Rank Date of Hire

James M. Stedman White 97.31 7 3/20/75 Patrick J. Kehoe White 96.98 8 3/31/75 Randall D. Konop White 96.91 9 2/19/80 Raymond E. Orozco Hispanic 96.22 10 2/19/80 Jack H. Petersen White 96.19 11 10/16/78 Gerald J. Capp White 95.37 12 2/16/69 Thomas J. Sullivan White 95.16 13 9/2/69 145. All seven (7) of the candidates promoted to fire battalion chief on P.O. No. 95-025 were promoted in rank order from the eligible list based on fire battalion chief promotional examination #39308.

146. On June 21, 1996, then Fire Commissioner Raymond E. Orozco issued P.O. No. 96-015, effective July 1, 1996. P.O. No. 96-015 included the following five (5) fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 96-015 (eff. 7/1/96)

Name Race Score Rank Date of Hire

Gerald P. McKee White 92.68 14 6/16/71 Patrick J. Brennan White 92.58 15 2/18/80 Bruce B. Gebien White 92.57 16 9/1/77 Paul S. Sobczak White 92.37 17 2/16/69 Derrick F. Jackson Black 85.64 36 11/16/78 147. Four (4) of the five (5) battalion chief candidates on P.O. No. 96-015 were promoted in rank order from the eligible list based on fire battalion chief examination #39308. The other promotion (Jackson) was made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the April 8, 1996 letter from Commissioner Carr to Commissioner Orozco.

148. On December 23, 1996, then Acting Fire Commissioner Edward P. Airman issued P.O. No. 96-028, effective January 1, 1997. P.O. No. 96-028 included the following four (4) fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 96-028 (eff. 1/1/97)

Name Race Score Rank Date of Hire

Martin O. Holland* White 92.14 18 6/16/71 John A. Shehan White 92.12 19 2/19/80 Kevin P. Doyle White 91.51 20 2/15/80 Richard A. Edgeworfh White 90.39 21 2/4/82 *Martin O. Holland is a plaintiff in Horan.

149. All four (4) of the candidates promoted to fire battalion chief on P.O. No. 96-028 were promoted in rank order from the eligible list based on fire battalion chief promotional examination #39308.

150. On February 24, 1997, then Acting Fire Commissioner Edward P. Airman issued P.O. No. 97-008, effective March 1, 1997. P.O. No. 97-008 included the following three (3) fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 97-008 (eff. 3/1/97)

Name Race Score Rank Date of Hire

Raymond J. Bresnahan White 90.06 22 2/18/80 John J. Nokes White 90.01 23 2/15/80 Charles E. Johnson Black 82.60 47 7/16/77 151. Two (2) of the three (3) fire battalion chief candidates on P.O. No. 97-008 were promoted in rank order from the eligible list based on fire battalion chief promotional examination #39308. The other promotion (Johnson) was made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the April 8, 1996 letter from Commissioner Carr to Commissioner Orozco.

152. On August 1, 1997, then Acting Fire Commissioner Edward P. Airman issued P.O. No. 97-017, effective August 1, 1997. P.O. No. 97-017 included the following seven (7) fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 97-017 (eff. 8/1/97)

Name Race Score Rank Date of Hire

Daniel Payne White 89.99 24 2/26/75 William Davey White 89.09 25 11/1/68 Thomas M. Jennings White 87.94 26 2/1/83 Joseph F. Quinn White 87.88 27 10/10/78 Donald T. Mallory White 87.63 28 2/16/69 Tedmund E. Duber White 87.14 29 12/16/78 Demarre McGill Black 81.66 54 2/19/80

153. Six (6) of the seven (7) fire battalion chief candidates on P.O. No. 97-017 were promoted in rank order from the eligible list based on fire battalion chief promotional examination #39308. The last promotion (McGill) was made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the April 8, 1996 letter from Commissioner Carr to Commissioner Orozco.

154. On January 29, 1998, then Fire Commissioner Edward P. Airman issued P.O. No. 98-007, effective February 1, 1998. P.O. No. 98-007 included the following 12 fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 98-007 (eff. 2/1/98)

Name Race Score Rank Date of Hire

Joseph E. Gloude White 86.97 30 3/5/80 Patrick K. Malone White 86.81 31 10/11/78 Raymond J. Weiher White 86.14 32 2/1/73 James M. Sheridan White 86.10 33 12/16/70 Terrence J. O'Brien White 86.05 34 12/16/70 Robert F. Hoehn White 85.83 35 8/16/66 Raymond J. Greenhill White 85.50 37 2/16/77 Steven C. Bates White 85.31 38 7/16/77 Michael J. Barrett White 85.21 39 8/16/76 Thomas G. Kennedy White 85.03 40 9/4/79 Daniel R. Barr White 84.83 41 10/16/78 John W. Brooks Black 79.85 60 01/02/80

155. Eleven (11) of the 12 fire battalion chief candidates on P.O. No. 98-007 were promoted in rank order from the eligible list based on fire battalion chief examination #39308. The other promotion (Brooks) was made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the April 8, 1996 letter from Commissioner Carr to Commissioner Orozco.

156. On June 18, 1999, then Fire Commissioner Edward P. Airman issued P.O. No. 99-011, effective July 1, 1999. P.O. No. 99-011 included the following 10 fire battalion chief candidates with the following scores and ranks:

Personnel Order No. 99-011 (eff. 7/1/99)

Name Race Score Rank Date of Hire

Mark M. Ward White 84.14 42 4/16/70 James K. Downing White 82.99 43 10/16/66 James M. Carroll White 82.96 44 4/1/67 Leo J. Cox White 82.91 45 11/1/68 John L. Fitzgerald White 82.72 46 11/1/68 Michael F. White White 82.45 48 5/1/66 Laurence P. Casserly White 82.45 48 12/16/70 Joseph V. Mahoney White 82.15 50 12/16/70 Sylvester Knox Black 76.76 71 2/19/80 Mark O'Bannon Black 76.14 74 2/16/77 157. Eight (8) of the 10 fire battalion chief candidates on P.O. No. 99-011 were promoted in rank order from the eligible list based on fire battalion chief promotional examination #39308. The other two (2) promotions (Knox and O'Bannon) were made out of rank order from the eligible list and claimed by the City to be justified for affirmative action reasons as stated in the April 8, 1996 letter from Commissioner Carr to Commissioner Orozco.

158. All of the candidates promoted out of rank order for affirmative action reasons from the eligible list based on fire battalion chief promotional examination #39308 were within 8.48 points of all of the candidates promoted in rank order at the same time they were promoted.

159. The CFD did not make any further promotions from fire battalion chief eligible list #39308 after the battalion chief promotions made effective July 1, 1999. On February 14, 2000, the DOP officially canceled the eligible list based on fire battalion chief examination #39308 and adopted the eligible list based on the subsequent fire battalion chief examination #39803. The first round of promotions from fire battalion chief examination #39803 were made effective April 1, 2000.

160. Plaintiffs are not challenging any of the promotions from fire battalion chief examination #39803 in this proceeding.

161. Pursuant to the wrap-around agreement in the CBA between the City and Local No. 2, three (3) candidates from the eligible list based on fire battalion chief promotional examination #39308 were placed at the top of the eligible list that resulted from fire battalion chief promotional examination #39803. Those three (3) candidates were promoted to fire battalion chief on P.O. No. 2000-05, which was issued by Fire Commissioner James T. Joyce on March 28, 2000 and became effective April 1, 2000. These three (3) candidates had the following scores and ranks on fire battalion chief examination #39308:

Personnel Order No. 2000-05 ( eff. 4/1/00)

Name Race Score Rank Date of Hire Daniel P. Fabrizio* White 82.03 51 9/4/79 Michael J. Timothy* White 81.96 52 2/15/80 Kenneth S. Wojtecki White 81.77 53 9/4/79 *Daniel P. Fabrizio and Michael J. Timothy are plaintiffs in Horan.

162. A total of 54 promotions to fire battalion chief were offered and accepted during the life of fire battalion chief eligible list #39308. Of those 54 promotions to fire battalion chief from fire battalion chief eligible list #39308, six (6) were made on a non — rank order basis and claimed by the City to be justified for the reasons articulated in Commissioner Carr's April 8, 1996 letter to then Commissioner Orozco. All six (6) of those non-rank order promotions went to black captains.

F. 1998 Fire Engineer Examination #39702

163. The 1998 fire engineer promotional examination #39702 was announced on September 29, 1997. Applications for fire engineer promotional examination #39702 were taken between September 29, 1997 and October 10, 1997. All firefighters who had served the prescribed nine-month probationary period on or before November 8, 1997 and who had a valid Illinois driver's license with a minimum classification of B (non-CDL) at the time of application were eligible to take the examination.

164. The City retained Aon Consulting, a management consulting firm, to develop fire engineer promotional examination #39702. Aon Consulting purchased HRStrategies, Inc., the consulting firm that developed the 1993 fire lieutenant promotional examination, the 1994 fire engineer promotional examination and that 1995 fire battalion chief promotional examination. The City also retained the public accounting firm of Ernst Young to administer the test and to secure the test documents. Fire engineer promotional examination #39702 consisted of three parts, a written multiple choice test, a pump simulator test and credit for seniority.

165. After gathering background information about the CFD and prior testing procedures, Aon Consulting did a content-oriented job analysis of the position of fire engineer. This process began by having subject matter experts (incumbent fire engineers, fire lieutenants and fire captains) determine the tasks and duties of the job. These subject matter experts then evaluated the tasks in terms of their importance to the job. Important tasks were grouped into dimensions or categories. Next, the subject matter experts determined the knowledge, skills and abilities ("KSA's") required to perform the job of fire engineer. These KSA's, after being evaluated in terms of importance, were used to develop specific items for the test, thus ensuring the content validity of the selection device.

166. The four (4) task categories or dimensions and their weights based on their relative importance to the job were Incident Response (41.2%), Morning Equipment Checkout (32.5%), Apparatus Maintenance, Equipment Tests and Training Exercises (20.7%) and Maintenance of Physical Plant (5.6%).

167. The process described above is detailed in the April 1998 "Technical Report on the Development of a Promotional Examination for Chicago Fire Department Engineer," which was prepared by Aon Consulting.

168. A study guide and workbook was prepared and distributed to all of the fire fighters who applied to take fire engineer promotional examination #39702. Specifically, the study guide and workbook contained the 1993 fire engineer promotional examination, the fire engineer duties, tasks and KSA's and suggestions on how to study and prepare for the test. In addition, the study guide and workbook contained information about operating procedures at hydrants and a list of the source materials from which the test would be developed.

169. Aon Consulting worked with high-ranking CFD officers and the Chief Engineer to develop the pump simulator test for fire engineer promotional examination #39702.

170. A total of 784 candidates took the written multiple choice component of fire engineer promotional examination #39702. Of those, seven (7) (.9%) were Asian American, five (5) (6%) were American Indian, 249 (31.8%) were black, 68 (8.7%) were Hispanic and 455 (58%) were white. That portion of the test was administered on November 8, 1997.

171. The mean scores of blacks and Hispanics on the written multiple choice component of fire engineer promotional examination #39702 were statically significantly lower than the mean score of whites on that component.

172. Seven-Hundred and Eighty-Four (784) candidates were scheduled to take the pump simulator component of fire engineer promotional examination #39702. However, 144 of those candidates did not take the pump simulator component. Of the 640 candidates who took the pump simulator component, seven (7) (1.1%) were Asian American, four (4)(.6%) were American Indian, 213 (33.3%) were black, 54 (8.4%) were Hispanic and 362 (56.6%) were white. That portion of the test was administered between November 2, 1997 and January 6, 1998.

173. The pump simulator component of fire engineer promotional examination #39702 consisted of four (4) fireground problems. The problems dealt with how the candidate would make the necessary calculations to supply a pressurized stream of water at a fire scene, involving "single line," "in-line," "quick water" and "two line" situations.

174. The mean scores of blacks on the first ("single line"), second ("in-line") and fourth problems ("two line") were statistically significantly lower than the mean scores of whites and Hispanics. The mean scores of blacks and Hispanics on the third problem ("quick water") were statistically significantly lower than the mean score of whites.

175. To determine the score of the pump simulator component of fire engineer promotional examination #39702, each of the four (4) problems was standardized to place all four (4) scores on a common scale and to give each pump simulator problem the same weight. This standardization process was not based on race.

176. Seniority was credited at a rate of one (1) point per month up through eight (8) years or 96 months of service. For candidates with 96 months of service or less, the seniority score equaled the number of months of service. Candidates with more than 96 months of service had their seniority score set to the maximum of 96. Seniority scores were transformed to a 20-point scale using the equation for a straight line. This transformation process was not based on race.

177. For seniority, there was no statistically significant differences among race groups.

178. Since scores on promotional examinations in the CFD traditionally were reported on a 100-point scale, the scores for the written multiple choice and pump simulator components of fire engineer promotional examination #39702 were transformed to a 4-point scale using the equation for a straight line. This transformation process was not based on race.

179. The results of fire engineer promotional examination #39702 were weighted as follows: 40% written multiple choice, 40% pump simulator and 20% seniority. Aon Consulting recommended these weights. Aon Consulting selected those weights to optimize the selection of fire engineers, to minimize adverse impact against protected groups and to comply with the CBA between the City and Local No. 2.

180. The mean final scores of blacks and Hispanics were statistically significantly lower than the mean final scores of whites on fire engineer promotional examination #39702. Use of a straight top down approach with scores from fire engineer promotional examination #39702 would result in an adverse impact against blacks and Hispanics.

181. The City adopted a banding approach based on recommendations made by Aon Consulting in making promotions based on the results of fire engineer promotional examination #39702. In accordance with the September 26, 1997 letter agreement between the City and Local No. 2, the band width was 5.91 points, or one (1) SED, and the City used the same fixed/sliding band methodology that it used for the 1993 fire lieutenant promotional examination #39202 and the 1994 fire engineer promotional examination #30305.

182. On July 9, 1998, the DOP adopted the eligible list based on fire engineer promotional examination #39702.

183. In a December 18, 1998 letter, Commissioner of Personnel Glenn E. Carr recommended to then Fire Commissioner Edward P. Airman that promotions from fire engineer promotional examination #39702 be made on an affirmative action basis. Commissioner Carr proposed that promotions be made at a ratio of 20% over the black and Hispanic composition of the rank (firefighter) eligible to be promoted to fire engineer, so long as any promotions out of rank order for affirmative action purposes are made within a 5.91-point band. The 5.91 point band represents one (1) SED.

184. On June 18, 1999, then Fire Commissioner Edward P. Airman issued P.O. No. 99-011. Effective July 1, 1999, the following 29 fire engineer candidates with the following scores and ranks were promoted pursuant to that personnel order:

Personnel Order No. 99-011 (eff. 7/1/99)

Name Race Score Rank Date of Hire

Robert C. Lancaster* White — 1 11/1/88 Thomas W. Pepper* White — 2 2/18/80 Richard H. Simpson* White — 3 8/3/87 Thaddeus Capjak* White — 4 7/16/86 Steven R. Maxwell White 98.51 5 2/19/80 John E. Hall White 92.33 6 2/17/87 Lewis T. Richardson Black 91.47 7 7/16/86 Aigars V. Banga White 90.82 8 12/16/76 Valerie D. Haggard White 90.06 9 11/1/86 Dennis M. Morrissey White 89.26 10 11/1/88 Eric H. Brodersen White 88.68 11 11/1/88 Frank J. Levanovic White 88.64 12 2/19/80 Enrique Luevano Hispanic 88.50 13 5/1/90 James R. Skawski White 88.38 14 12/3/90 Kurt L. Rouette White 88.23 15 2/19/80 William Kowal White 87.80 16 12/1/88 James T. Walsh White 87.73 17 12/1/99 Peter G. Czerwionka White 87.57 18 3/2/87 Thomas J. Minasola White 87.34 19 5/2/88 Rocco E. Roccasalva White 87.31 20 11/1/86 James R. O'Donnell White 86.43 22 11/1/80 Edward J. Gill White 86.39 23 7/16/86 Thomas E. Vogenthaler White 86.16 24 12/3/90 Michael J. Jakaitis** White 86.10 25 3/1/80 Gregory Domel White 85.97 27 11/1/89 Thomas P. Schweig White 85.75 28 2/14/80 Scott P. Gillen White 85.62 29 11/1/86 Ronald L. Ellingsen White 85.38 31 12/1/88 Michael V. Dudak** White 85.16 32 5/1/90 *Part of the wrap-around from the 1994 fire engineer examination #39305.

*Michael J. Jakaitis and Michael V. Dudak are plaintiffs in Horan.

185. All of the promotions to fire engineer, effective July 1, 1999, from the eligible list based on fire engineer promotional examination #39702 were made in rank order.

186. P.O. No. 99-011 also included the following 31 fire engineer candidates, with the following scores and ranks, whose promotions were effective July 16, 1999:

Personnel Order No. 99-011 (eff. 7/16/99)

Name Race Score Rank Date of Hire

Rossye L. Smith Black 84.83 35 5/2/88 Thomas A Connelly White 84.77 36 7/16/86 Robert J. Ludwig White 84.67 37 10/1/91 Kevin M. Knightly White 84.61 38 10/1/91 Jeff E. Xenakis White 84.44 39 1/2/8O Irving W. Doucet White 84.22 40 2/18/80 Kevin E. Nitsche White 84.21 41 12/1/88 Jeff N. Perovic White 83.87 43 11/1/89 Craig V. Foch White 83.86 44 7/16/86 John P. Ward White 83.37 45 11/1/86 Robert A. Gacki White 83.26 46 12/3/90 Steven B. Clay Black 83.17 47 12/1/92 Juan T. Hooker Black 83.15 48 11/1/89 Michael J. Shanahan White 83.03 50 2/1/82 Joseph P. Pabich White 82.98 51 11/1/88 John V. King Black 82.52 53 12/1/88 Ronald J. Barber White 82.51 54 12/17/87 Michael S. Horist American Indian 82.19 56 11/1/86 Gregory P. Keenan White 82.17 57 10/1/91 Patrick J. Broenneke White 82.15 58 11/1/89 Scott M. Coy White 82.02 59 5/1/90 Kevin M. Peters White 81.97 60 12/3/90 Lawrence S. Diaz Hispanic 81.96 61 2/1/83 John F. Golen White 81.76 65 2/20/80 Mark E. Conrad White 81.71 66 5/2/88 Kenneth P. Dorsen White 81.64 67 2/17/87 Alfred L. Allen Black 81.64 68 12/3/90 Darryl K. Moore Black 81.60 70 7/16/86 Barry Williams Black 81.42 73 5/1/90 Joseph Parra Hispanic 80.93 78 8/3/87 Brenda J. Carson Black 80.76 82 5/2/88 187. On June 18, 1999, then Fire Commissioner Edward P. Airman issued P.O. No. 99-011A, effective July 16, 1999. In that personnel order, Joseph Parra, who failed the drug screen, was deleted from P.O. No. 99-011. That personnel order also included the name of the following fire engineer candidate with the following score and rank:

Personnel Order No. 99-011A (eff. 7/16/99)

Name Race Score Rank Date of Hire

Ronald E. Michi White 83.14 49 2/18/80 188. Twenty-eight (28) of the 31 fire engineer candidates on P.O. Nos. 99-011 and 99-011A were promoted in rank order from the eligible list based on fire engineer promotional examination #39702. The other three (3) promotions (Moore, Williams and Carson) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 18, 1998 letter from Commissioner Carr to Commissioner Altman.

189. On March 28, 2000, Fire Commissioner James T. Joyce issued P.O. No. 2000-05, effective April 16, 2000. P.O. No. 2000-05 included the following 30 fire engineer candidates with the following scores and ranks:

Personnel Order No. 2000-05 (eff. 4/16/00)

Name Race Score Rank Date of Hire

Victor M. Kwita White 84.94 34 2/17/80 Patrick M. Ryan White 82.82 52 11/1/89 Brian G. Kinnear White 82.45 55 8/17/81 Gary J. Hatfield White 81.63 69 2/21/80 Robert G. Weel* White 81.55 71 12/1/88 James A. Byrne* White 81.51 72 12/3/90 Barbara J. Riggle White 81.15 74 5/2/88 Steven R. Marciano White 81.12 75 8/3/87 Michael E. Scanlon** White 80.98 77 12/1/92 Joseph Parra Hispanic 80.93 78 8/3/87 Robert Petrey White 80.83 80 2/16/99 Richard Glad White 80.76 81 7/16/86 Michael K. Magee White 80.69 83 11/1/89 Raymond E. Woods White 80.60 84 10/1/91 Michael G. Wilber White 80.18 85 10/1/91 Edward M. McVicker White 80.01 86 7/16/90 Steven D. Dean Black 79.99 87 11/1/86 James M. Franzen White 79.81 89 2/14/80 Bernard J. Warrington Black 78.67 102 2/1/83 Eric R. Henderson Black 78.59 103 11/1/89 Lamartine Edwards Black 78.46 106 3/1/80 Mattie L. Rawski Black 78.17 108 11/1/86 Cesar Guzman Hispanic 78.07 111 12/18/80 Lance Q. Anderson Black 77.65 119 7/16/86 Lawrence R. Jones Black 77.44 126 5/1/90 Charles E. Williams Black 77.08 129 8/3/87 Patrick A. Reardon White 79.75 90 11/1/88 Kenneth J. Diana White 79.61 93 10/1/91 Brian T. McKermitt White 79.56 94 12/3/90 Charles W. Maes White 79.41 97 5/2/88 *Robert G. Weel and James A. Byrne are plaintiffs in Horan.

**Michael E. Scanlon was listed on P.O. No. 2000-05 but later waived his promotion.

190. Twenty-one (21) of the 29 fire engineer candidates on P.O. No. 2000-05 (Scanlon is excluded because he waived his promotion), were promoted in rank order from the eligible list based on fire engineer promotional examination #39702. The other eight (8) promotions (Warrington, Henderson, Edwards, Rawski, Anderson, Guzman, Jones and Williams) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 18, 1998 letter from Commissioner Carr to Commissioner Airman.

191. The eligible list based on fire engineer promotional examination #39702 is still active.

192. All of the candidates promoted out of rank order for affirmative action reasons from the eligible list based on fire engineer promotional examination #39702 received a score within 5.91 points of the candidates promoted in rank order at the same time they were promoted, except as to Victor Kwitka (white), whose name appears on P.O. No. 2000-05 (effective April 16, 2000). Kwitka's score was above that band Kwita would have been promoted earlier based on his score. However, on November 16, 1995, Kwitka crossed over from CFD paramedic and became a firefighter. Under Article IX, Section 9.3.B.2.of the CBA between the City and Local No. 2, Kwitka was not eligible for promotion until he had completed 54 months as a firefighter. When a candidate is ineligible for promotion, the band slides down to the next candidate on the list who has not yet been promoted

193. From July 1, 1999 to and including April 16, 2000 (the rounds of promotion challenged in this litigation), a total of 89 promotions to fire engineer were made and accepted from the eligible list based on fire engineer promotional examination #39702. Of those 89 promotions, 67 went to whites, 17 went to blacks, four (4) went to Hispanics and one (1) went to an American Indian. Of those 89 promotions, 11 were made on a non-rank order basis and claimed by the City to be justified for the reasons articulated in Commissioner Carr's December 18, 1998 letter to then Commissioner Airman. Of those 11 non-rank order promotions, 10 went to blacks and one (1) went to an Hispanic.

G. 1999 Fire Captain Examination #39802

194. The 1999 fire captain promotional examination #39802 was announced on June 15, 1998. Applications for fire engineer promotional examination #39802 were taken between June 15, 1998 and June 24, 1998. All fire lieutenants were eligible to take the examination.

195. The City retained Aon Consulting, a management consulting firm, to develop fire captain promotional examination #39802. The City also retained the public accounting firm of Ernst Young to administer the test and to secure the test documents. Fire captain promotional examination #39802 consisted of three (3) parts: a written multiple-choice test, a structured oral interview and credit for seniority. In addition, there was a performance selection process based on Article IX, Section 9.3B4 of the CBA between the City and Local No. 2.

196. After gathering background information about the CFD and prior testing procedures, Aon Consulting did a content-oriented job analysis of the position of fire captain. This process began by having subject matter experts (incumbent battalion chiefs and fire captains) determine the tasks and duties of the job. The incumbent battalion chiefs and captains then evaluated the tasks in terms of their importance to the job. Important tasks were then grouped into dimensions or categories. Next, the subject matter experts determined the knowledge, skills and abilities ("KSA's") required to perform the job of fire captain. These KSA's, after being evaluated in terms of importance, were used to develop specific items for the test, thus ensuring the content validity of the selection device.

197. The four (4) task categories or dimensions and their weights based on their relative importance to the job were Supervision and Administration (26.48%), Incident Response (43.70%), Training (16.91%), and Fire Prevention Inspection (12.48%). The goal of Aon Consulting was to develop a test that would be related to these job categories and the KSA's linked to the specific tasks within each job category.

198. The process described above is detailed in the December 1998 "Technical Report on the Development of a Promotional Examination for Chicago Fire Department Captain," which was prepared by Aon Consulting.

199. A study guide and workbook was prepared and distributed to all of the fire lieutenants who applied to take fire captain promotional engineer examination #39802. Specifically, the study guide and workbook contained the written multiple choice portion of the 1991 fire captain promotional examination #39104, a sample oral examination question with the answer worked out, a list of fire captain duties, a list of job tasks and KSA's and suggestions on how to study and prepare for the test. In addition, the study guide and workbook contained a list of source materials from which the test questions would be developed.

200. A total of 474 candidates took the written multiple choice component of fire captain promotional examination #39802. Of those, three (3) (.6%) were Asian American, three (3) (.6%) were American Indian, 79 (16.7%) were black, 38 (8.0%) were Hispanic and 351 (74.1%) were white. That portion of the test was administered on July 25, 1998.

201. On all sections of the written multiple choice component of fire captain promotional examination #39802 (Supervision, Incident Response, Training and Fire Prevention Inspections) the mean score of blacks was statistically significantly lower than the mean score of whites.

202. To calculate the total written score, the scores on each test section were standardized to place all four (4) section scores on a common scale. This standardization was not based on race. Each standardized score was then multiplied by its task cluster criticality weight in order to be consistent with the content of the job. That procedure was not based on race. The weighted standardized scores of each section were then added to calculate a total written component score for each candidate.

203. The mean total scores of blacks and Hispanics on the written multiple choice component of fire captain promotional examination #39802 was statistically significantly lower than the mean total score of whites on that component.

204. Four-hundred and seventy-four (474) candidates were scheduled to take the oral interview component of fire captain promotional examination #39802. However, 11 of those candidates did not take that component. Of the 463 candidates who took the oral interview component, 79 (17.1%) were black, 38 (8.2%) were Hispanic, 340 (73.4%) were white, three (3) (.6%) were Asian American and three (3) (.6%) were American Indian. That portion of fire captain promotional examination #39802 was administered between August 5, 1998 and August 21, 1998.

205. The oral board component consisted of three (3) questions, the first covering Training, the second covering Supervision and the third covering Incident Response. For each candidate, there was a consensus rating (agreed-upon panel rating by the three (3) board assessors) and independent ratings of each assessor for each question.

206. On each of the three (3) oral interview questions, the mean score of white candidates was statistically significantly higher than the mean score of Hispanic candidates. Whites and blacks did not differ significantly from each other nor did blacks and Hispanics. The same results were found using the consensus rating and the average independent ratings of each assessor.

207. The consensus ratings were used to calculate the overall oral interview score because the use of the consensus ratings reduced age group differences. In calculating the oral interview score, the three (3) consensus ratings were standardized to place all three (3) consensus ratings on a common scale. This standardization was not based on race. The standardized score for each question was then multiplied by its respective task cluster criticality weight in order to be consistent with the content of the job. That procedure was not based on race. The weighted standardized scores for each question were then added to calculate a total interview score for each candidate.

208. The mean overall oral interview score of white candidates was statistically significantly higher than the mean score of Hispanics. There were no statistically significant differences between whites and blacks or between blacks and Hispanics.

209. Seniority was credited at a rate of one (1) point per month of service up to a maximum of 12 years or 144 months of service. For candidates with 144 months of service or less, the seniority score equaled the number of months of service. Candidates with more than 144 months of service had their seniority set to the maximum of 144. Seniority scores were transformed to a 20-point scale using the equation for a straight line. This transformation process was not based on race.

210. For seniority, there was no statistically significant differences among race groups.

211. Pursuant to the CBA and the 1998 Captain Examination Announcement, an education credit of one (1) point was added to candidates' final score if they possessed either an associate or a bachelors degree in fire science from an accredited college or university at the time the examination was administered

212. Since scores on promotional examinations in the CFD traditionally are reported on a 100-point scale, the scores for the written multiple choice and oral interview components of fire captain promotional examination #39802 were transformed to a 40-point scale using the equation for a straight line. This fransformation was not based on race.

213. The results of fire captain promotional examination #39802 were weighted as follows: 40% written multiple choice, 40% oral interview and 20% seniority. Aon Consulting recommended these weights. Aon Consulting selected those weights to make the examination as a whole as representative as possible of the job content domain, to optimize the selection of fire captains, to minimize adverse impact against protected groups and to comply with the CBA between the City and Local No. 2.

214. The mean of the overall test scores of blacks and Hispanics were statistically significantly lower than the mean overall test score of whites on fire captain promotional examination #39802. Use of a straight top down selection approach with fire captain promotional examination #39802 would result in adverse impact against blacks and Hispanics.

215. The City adopted a banding approach based on recommendations made by Aon Consulting in making promotions based on the results of fire captain promotional examination #39802. In accordance with the September 26, 1997 side letter which was appended to and made a part of the CBA between the City and Local No. 2, the band width was 4.75 points, or one (1) SED, and the City used the same fixed/sliding band approach that it used for the 1993 fire lieutenant promotional examination #39202 and the 1994 fire engineer promotional examination #39305.

216. On May 28, 1999, the DOP adopted the eligible list based on fire captain promotional examination #39802.

217. In a June 7, 1999 letter, Commissioner of Personnel Glenn E. Carr recommended to then Fire Commissioner Edward P. Airman that promotions from fire captain promotional examination #39802 be made on an affirmative action basis. Commissioner Carr proposed that promotions be made at a ratio of 20% over the black and Hispanic composition of the rank (fire lieutenant) eligible to be promoted to fire captain, so long as any promotions out of rank order for affirmative action purposes are made within a 4.75-point band. The 4.75-point band represents one (1) SED.

218. On June 18, 1999, then Fire Commissioner Edward P. Airman issued P.O. No. 99-011. Effective July 1, 1999, the following 20 fire captain candidates with the following scores and ranks were promoted pursuant to that personnel order:

Personnel Order No. 99-011 (eff. 7/1/99)

Name Race Score Rank Date of Hire

John J. Micotto* ** White — 1 2/16/77 Sean W Burke* White — 2 1/2/80 Michael C. Deckelmann* White — 3 4/1/67 William G. Cattorini* White — 4 1/1/68 James M. Jablonski White 101.00 5 2/22/80 William C. Vogt White 100.31 6 11/1/86 Mitchell S. Crooker White 100.00 7 2/16/83 Kevin T. Ryan White 97.39 8 11/1/86 Michael T. Sullivan White 97.30 9 2/17/87 Timothy P. Gibbons White 96.78 10 2/18/80 Matthew E. Dowdall White 96.60 11 8/3/87 David B. Dietz White 96.48 12 11/1/86 Terrance P. Whirity White 96.17 13 6/16/76 Patrick J. Flaherty White 96.12 14 2/19/80 Gregory M. Kurcab White 95.52 15 7/16/86 Jeffrey A. Horan White 95.31 16 2/26/80 Thomas P. Conway White 95.18 17 10/20/76 Paul C. Stauffer White 95.02 18 8/3/87 Eric S. Strong Black 89.84 87 11/16/78 Kenneth H. Aniolowski White 73.21 332 2/16/73 *Part of the wrap-around from the 1991 fire captain examination #39104.

*John J. Micotto is a plaintiff in Horan.

219. Eighteen (18) of the 20 fire captain candidates on P.O. No. 99-011, whose promotions were effective July 1, 1999, were promoted in rank order from the eligible list based on fire captain promotional examination #39802. The other two (2) promotions (Strong and Aniolowski) were made as part of the performance selection process of fire captain promotional examination #39802, pursuant to Article IX, Section 9.3. B.4. of the CBA between the City and Local No. 2. Those performance — based selections are not challenged in this litigation.

220. P.O. No. 99-011 also included the following 20 fire captain candidates, with the following scores and ranks, whose promotions were effective July 16, 1999:

Personnel Order No. 99-011 (eff. 7/16/99)

Name Race Score Rank Date of Hire

Curt P. Annis White 94.98 19 1/2/8O Lewis G. Bleicher White 94.93 21 2/16/83 Patrick M. Maloney White 94.53 22 11/16/81 Jeffrey T. Springer Black 94.52 23 2/20/80 Mark S. Zapiler White 94.41 24 2/17/87 James M. Purl White 94.29 25 11/1/86 Thomas M. Dinneen White 94.16 26 1/3/78 Patrick D. Sheppard White 93.62 27 2/1/77 John T. Collins White 93.54 28 1/2/8O Jerry H. Knapp White 93.49 29 8/3/87 Scott S. McShane White 93.35 30 2/18/80 Stephen J. Borkowski White 93.33 31 2/15/80 Ernest F. Brodersen White 93.30 32 7/16/86 Michael C. Gacki White 93.29 33 2/1/83 Derrick Hunter Black 92.94 40 2/15/80 Alfonsa Johnson Black 92.22 46 2/16/77 Edward A. Cerdan Hispanic 91.96 50 2/18/80 Davis T. Johnson Black 90.34 80 2/17/87 Martin J. Ciesielczyk White 82.37 205 6/16/71 Jose A. Suarzez Hispanic 78.64 269 2/16/77 221. Fourteen (14) of the 20 fire captain candidates on P.O. No. 99-011, whose promotions were effective July 16, 1999, were promoted in rank order from the eligible list based on fire captain promotional examination #39802. The next four (4) promotions (Hunter, A. Johnson, Cerdan and D. Johnson) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the June 7, 1999 letter from Commissioner Carr to Commissioner Airman. The remaining two (2) promotions (Ciesielczyk and Suarez) were made as part of the performance selection process of fire captain promotional examination #39802, pursuant to Article IX, Section 9.3 B.4. of the CBA between the City and Local No. 2. Those performance-based selections are not challenged in this litigation.

222. On March 28, 2000, Fire Commissioner James T. Joyce issued P.O. No. 2000-05. Effective April 1, 2000, the following eight (8) fire captain candidates with the following ranks and scores were promoted pursuant to that personnel order:

Personnel Order No. 2000-05 (eff. 4/1/00)

Name Race Score Rank Date of Hire

Jeffrey M. Newton* White 93.25 34 2/18/80 John R. Keller White 93.25 35 2/1/83 John J. Millerick* White 93.19 36 2/18/80 James J. Carroll White 93.14 37 2/1/82 John A. Pentek White 93.11 38 5/2/88 Juan F. Reyes Hispanic 90.69 70 11/16/78 Billy W. Hayes Black 90.09 84 2/16/85 John L. Waters White 72.90 336 4/1/67 *Jeffrey M. Newton and John J. Millerick are plaintiffs in Horan.

223. Five (5) of the eight (8) fire captain candidates on P.O. No. 2000-O5, whose promotions were effective April 1, 2000, were promoted in rank order from the eligible list based on fire captain promotional examination #39802. The next two (2) promotions (Reyes and Hayes) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the June 7, 1999 letter from Commissioner Carr to Commissioner Airman. The remaining promotion (Waters) was made as part of the performance selection process of fire captain examination #39802, pursuant to Article IX, Section 9.3.B.4. of the CBA between the City and Local No. 2. That performance-based selection is not challenged in this litigation.

224. P.O. No. 2000-05 also included the following eight (8) fire captain candidates, with the following scores and ranks, whose promotions were effective April 16, 2000:

Personnel Order No. 2000-05 (eff. 4/16/00)

Name Race Score Rank Date of Hire

Guy J. McAndrew White 93.08 39 1/2/80 Thomas E. Hohenstein White 92.87 41 2/15/80 Thomas J. Browne White 92.48 42 2/17/87 Michael H. Dill White 92.36 43 11/16/78 Daniel Leland White 92.27 45 11/1/86 Joseph W. Drennan White 92.10 47 2/20/80 Jose L. Flores Hispanic 89.42 94 2/21/80 Arthur L. Lewis Black 77.37 284 7/16/77

225. Six (6) of the eight (8) fire captain candidates on P.O. No 2000-05, whose promotions were effective April 16, 2000, were promoted in rank order from the eligible list based on fire captain promotional examination #39802. The next promotion (Flores) was made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the June 7, 1999 letter from Commissioner Carr to Commissioner Airman. The remaining promotion (Lewis) was made as part of the performance selection process of fire captain examination #39802, pursuant to Article IX, Section 9.3.B.4. of the CBA between the City and Local No. 2. That performance-based selection is not challenged in this litigation.

226. The eligible list based on fire captain promotional examination #39802 is still active.

227. All of the candidates promoted out of rank order for affirmative action reasons from the eligible list based on fire captain promotional examination #39802 through April 16, 2000 received a score within 4.75 points of the candidates promoted in rank order at the same time they were promoted.

228. From July 1, 1999 to and including April 16, 2000 (the rounds of promotion at issue in this litigation), a total of 56 promotions to fire captain were made and accepted from the eligible list based on fire captain promotional examination #39802. Of those 56 promotions, 45 went to whites, seven (7) went to blacks and four (4) went to Hispanics. Of those 56 promotions, seven (7) were made on a non-rank order basis and claimed to be justified for the reasons articulated in Commissioner Carr's June 7, 1999 letter to then Commissioner Airman. Of those seven (7) non-rank order promotions, four (4) promotions went to black lieutenants and three (3) promotions went to Hispanic lieutenants.

H. 2000 Fire Lieutenant Examination #39903

229. The 2000 fire lieutenant promotional examination #39903 was announced on October 22, 1999. Applications for fire lieutenant promotional examination #39903 were taken on October 22, 1999 and October 23, 1999 and October 25, 1999 through October 29, 1999.

230. The City retained HRNavigator Consulting, Inc., a management consulting firm, to develop fire lieutenant promotional examination #39903. The City also retained the public accounting firm of Ernst Young to administer the test and to secure the test documents. Fire lieutenant promotional examination #39903 consisted of three (3) parts: a written multiple-choice test, a structured oral interview and credit for seniority. In addition, there was a performance selection process based on Article IX, Section 9.3.B.4. of the CBA between the City and Local No. 2.

231. After gathering background information about the CFD and prior testing procedures, HRNavigator Consulting, Inc. did a content — oriented job analysis of the position of fire lieutenant. This process began by having subject matter experts (incumbent fire lieutenants) determine the tasks and duties of the job. The lieutenants then evaluated the tasks in terms of their importance to the job. Important tasks were then grouped into dimensions or categories. Next, incumbent lieutenants along with high-ranking subject matter experts (incumbent fire captains, battalion chiefs and deputy district chiefs) determined the knowledge, skills and abilities ("KSA's") required to perform the job of fire engineer. These KSA's, after being evaluated in terms of importance, were used to develop specific items for the test, thus insuring the content validity of the selection device.

232. The four (4) task categories or dimensions were Supervision and Administration (mean weight 24), Incident Response (mean weight 49), Training and Fire Prevention Inspection (mean weight 10). The goal of HRNavigator Consulting, Inc. was to develop a test that would be related to these job categories and the KSA's linked to the specific tasks within each job category.

233. The process described above is detailed in the August 2000 "Technical Report on the Development of a Promotional Examination for Fire Lieutenant," which was prepared by HRNavigator Consulting, Inc.

234. The test applicants were provided with a list of source materials to study. These source materials included general orders, CFD memos, special directives and training bulletins. The applicants also were provided with test-taking tips prepared by HRNavigator Consulting, Inc. A copy of the 1993 lieutenant examination #39202 was included as part of the study materials provided to applicants.

235. A total of 1,658 candidates took the written multiple choice component of fire lieutenant promotional examination #39903. Of those, 12 (.7%) were Asian American, four (4) (.2%) were American Indian, 427 (25.8%) were black, 166 (10%) were Hispanic and 1,049 (63.3%) were white. That portion of the test was administered on December 20, 1999.

236. The mean scores of blacks and Hispanics on the written multiple-choice component of fire lieutenant promotional examination #39903 were statistically significantly lower than the mean score of whites.

237. A total of 1,372 candidates who had taken the written multiple-choice component also took the oral interview component of fire lieutenant promotional examination #39903. Of those 1,372 candidates, 10 (.7%) were Asian American, four (4) (.3%) were American Indian, 387 (28.2%) were black, 140 (10.2%) were Hispanic and 831 (60.6%) were white. That portion of fire lieutenant promotional examination was administered between February 23, 2000 and March 31, 2000.

238. The oral board component consisted of three (3) questions, the first covering the Training topic area, the second covering the Incident Response topic area, and the third covering the Supervision and Administration topic area.

239. On the first (Training) and the third (Supervision and Administration) questions there were no statistically significant differences in the mean consensus ratings (the agreed-upon assessor panel rating for each question) among race groups. On the second question (Incident Response), the mean consensus rating for blacks was statistically significantly lower than the mean consensus rating for whites. The mean consensus rating for Hispanics was not statistically significantly different from the mean consensus ratings for whites and blacks on the second question.

240. The results of fire lieutenant promotional examination #39903 were weighted as follows: 40% written multiple choice, 40% oral interview and 20% seniority. HRNavigator recommended these weights. In selecting those weights, HRNavigator took into account the provisions of the CBA between the City and Local No. 2, which require for examinations given after January 1, 1997, that the written and oral test components each be weighted no less than 30% and that the seniority component be weighted no less than 20% of the final score.

241. Seniority points were calculated by transforming months of service to a 20-point scale. Those candidates with 96 or more months of service received the maximum 20 points. Those with fewer than 96 months of service had their seniority transformed to a 20-point scale using the equation for a straight line. This transformation process was not based on race.

242. The mean seniority score for whites was statistically significantly lower than the mean score for blacks. The mean seniority score for Hispanics did not differ significantly from the mean seniority score for whites or blacks.

243. Pursuant to the CBA and the Fire Lieutenant Examination Announcement, an education credit of one (1) point was added to candidates' final scores if they possessed either an associate or a bachelors degree in fire science from an accredited college or university at the time the examination was administered

244. The scores on each of the three (3) questions on the oral interview component of fire lieutenant promotional examination #39903 were standardized to a common mean and standard deviation so that they could be placed on the same scale. This standardization process was not based on race. To achieve a total oral interview score, the standardized score on each of the three (3) questions was averaged for each candidate. The distribution of scores was then transformed to a 40-point scale using the equation for a straight line. This fransformation process was not based on race.

245. The mean total oral interview scores did not statistically significantly differ among race groups.

246. The raw scores on the written multiple choice component of fire lieutenant promotional examination #39903 were standardized to a common mean and standard deviation and transformed to a 40-point scale using the equation for a straight line. This standardization and transformation placed the oral interview component on the same scale as the other components and was not based on race.

247. The mean final written multiple choice scores for blacks and Hispanics were statistically lower than the mean score for whites.

248. The mean total scores on fire lieutenant promotional examination #39903 for blacks and Hispanics were statistically significantly lower than the mean score for whites. Use of a straight top down selection approach with fire lieutenant examination #39903 would have had an adverse impact on blacks and Hispanics.

249. The City adopted a banding approach based on recommendations made by HRNavigator Consulting, Inc. in making promotions based on the results of fire lieutenant promotional examination #39903. In accordance with the September 26, 1997 side letter which was appended to and made a part of the CBA between the City and Local No. 2, the band width was 5.02 points, or one (1) SED, and the City used the same fixed/sliding band approach that it used for the 1993 fire lieutenant promotional examination #39202 and the 1994 fire engineer promotional examination #39305.

250. On November 9, 2000, the DOP adopted the eligible list based on fire lieutenant promotional examination #39903.

251. In a December 6, 2000 letter, Commissioner of Personnel Glenn E. Carr recommended to Fire Commissioner James Joyce that promotions from fire lieutenant promotional examination #39903 be made on an affirmative action basis. Commissioner Carr proposed that promotions be made at a ratio of 20% over the black and Hispanic composition of the ranks (firefighter and fire engineer) eligible to be promoted to fire lieutenant, so long as any promotions out of rank order for affirmative action purposes are made within a 5.02-point band. The 5.02-point band represents one (1) SED.

252. On November 13, 2000, Fire Commissioner James T. Joyce issued P.O. No. 2000-26. Effective November 16, 2000, the following 61 fire lieutenant candidates with the following scores and ranks were promoted pursuant to that personnel order:

Personnel Order No. 2000-26 (eff. 11/16/00)

Name Race Score Rank Date of Hire

Robert J. O'Toole* ** White — 1 2/1/83 Roman J. Paluch * ** White — 2 12/3/90 Thomas M. Miller * White — 3 11/1/86 Craig V. Foch* ** White — 4 7/16/86 Stanley H. Wozniak* ** White — 5 10/16/78 James M. Banks* ** White — 6 7/18/77 John A. McCarthy* ** White — 7 3/1/80 Scott L. Wisniewski* ** White — 8 2/15/80 Michael J. Roche* ** White — 9 11/1/86 Steven M. Brady* ** *** White — 10 12/3/90 Brian E. Smith* ** White — 11 5/1/90 John M. Bucher* ** White — 12 2/17/87 Michael T. Roche* ** White — 13 11/1/89 Theodore J. Eck* ** White — 14 2/15/80 Richard E. Lynch* ** White — 15 2/16/85 Kenneth M. Vaclavik* ** White — 16 2/16/85 Kurt L. Rouette* ** White — 17 2/19/80 Robert P. Casey* ** White — 18 2/4/82 John E. Hall* White — 19 2/17/87 Gregg M. Reynolds* ** White — 20 11/1/88 Fames P. Kleinick* ** White — 21 2/15/80 Robert F. Dubberke White 99.36 22 1/2/80 ?Cenneth P. Bruno White 99.36 23 2/15/80 Fames R. O'Donnell White 98.72 24 1/2/80 Fames P. McMahon White 98.72 25 2/18/80 3harles E. Bliss White 98.72 26 2/19/80 Fames M. Basile White 98.72 28 2/17/87 rimothy J. Brown White 98.72 29 2/17/87 Edward M. Clafford** White 98.51 30 5/1/90 Richard L. Coco White 98.08 31 7/16/80 Herbert T. Johnson White 98.08 32 2/18/80 Daniel J. McAuliffe White 98.08 33 2/20/80 Michael Krolicki White 97.44 34 2/19/80 Michael J. Muscolino White 97.44 36 12/3/90 Evan P. Person Black 97.44 37 12/3/90 rhomas E. Vogenthaler White 97.44 38 12/3/90 Eric H. Brodersen White 97.16 39 11/1/88 Ferrence P. Gavin White 96.80 40 2/20/80 Vlichael J. Finnegan White 96.49 42 3/16/90 George M. Brackin White 96.28 43 2/16/85 Daniel J. Sheahan White 96.28 44 11/1/89 Stephen P. McGinnis Asian 96.16 45 2/19/80 William F. Gavin American White 96.16 46 2/20/80 Patrick Fleming White 96.16 47 5/2/88 Vlark S. Edingburg Black 95.53 49 2/19/80 Ilichard C. Rabiola White 95.53 50 2/20/80 Roy E. Dean White 95.53 51 7/16/86 Richard K. Ranos White 95.53 52 12/1/88 Robert G. Weel ** White 95.53 53 12/1/88 foseph N. Kish White 95.53 54 5/1/90 ECevin M. Peters White 95.53 55 12/3/90 ferry A. Ivack White 95.53 56 10/1/91 Vlichael J. Needham White 95.43 57 2/20/80 fohn R. Dziedzic White 95.01 58 1/2/80 Vlatthew J. Fasan White 95.01 59 5/1/90 Vlichael Anderson Black 75.07 587 12/16/78 Barland H. Jones Black 71.23 716 2/16/77 Luis M. Ponce De Leon Hispanic 72.42 686 12/19/80 Vlarcelino P. Ybarra Hispanic 79.54 425 2/19/80 Patrick D. Lynch White 85.30 612 3/1/75 Steve C. Neidenbach White 86.30 232 2/14/80 *Part of the wrap-around from the 1993 fire lieutenant examination #39202.

**Robert J. O'Toole, Roman J. Paluch, Craig V. Foch, Stanley H. Wozniak, James M. Banks, John A. McCarthy, Scott L. Wisniewski, Michael J. Roche, Steven M. Brady, Brian E. Smith, John M. Bucher, Michael T. Roche, Theodore E. Eck, Richard E. Lynch, Kenneth M. Vaclavik, Kurt L. Rouette, Robert P. Casey, Gregg M. Reynolds, James P. Kleinick, Edward M. Clafford and Robert G. Weel are plaintiffs in Horan. *plaintiff Steven M. Brady was on P.O. No. 2000-26 but later waived his promotion.

253. Fifty-Five (55) of the 61 fire lieutenant candidates on P.O. No. 2000-26, whose promotions were effective November 16, 2000, were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39903 (except that plaintiff Steven M. Brady waived his promotion). The remaining six (6) promotions (Anderson, Jones, Ponce De Leon, Ybarra, Lynch and Neidenbach) were made as part of the performance selection process for fire lieutenant promotional examination #39903, pursuant to Article IX, Section 9.3.B.4. of the CBA between the City and Local No. 2. Those performance — based selections are not challenged in this litigation.

254. P.O. No. 2000-26 also included the following 38 fire lieutenant candidates with the following scores and ranks, whose promotions were effective December 1, 2000:

Personnel Order No. 2000-26 (eff. 12/1/00)

Name Race Score Rank Date of Hire

Stephen A. Bezazian White 94.89 61 7/16/86 Edward J. Waliczek White 94.89 62 11/1/89 William F. Trezek White 94.89 63 5/1/90 Phillip J. Lahendro White 94.37 64 2/18/80 Frank M. Perry White 94.37 65 12/3/90 Patrick M. Curley White 94.37 66 10/1/91 John F. McCallum, Jr. White 94.25 67 2/14/80 Gary W. Collins White 93.73 68 11/16/78 Robert C. Daley White 93.61 69 10/16/78 Daniel W. Murphy White 93.61 70 5/20/81 Scott P. Gillen White 93.61 72 11/1/86 John P. Ward White 93.61 73 11/1/86 Nicholas S. Cairo White 93.61 74 2/17/87 Charles W. Maes White 93.61 75 5/2/88 Edward M. McVicker White 93.61 76 7/16/90 Lawrence J. Ahern White 93.40 77 2/1/83 David A. Loper White 93.40 78 5/1/90 Thomas A. Connelly White 93.33 79 7/16/86 Daniel S. Torrise White 93.30 80 12/3/90 Barry J. Biondo White 92.97 81 7/16/86 William L. DiPinto White 92.97 82 7/16/86 Ronald L. Ellingsen White 92.97 83 12/1/88 Patrick J. Broenneke White 92.97 84 11/1/89 Gary J. Kochan* White 92.97 85 11/1/89 John J. Cronin White 92.97 86 7/16/90 Kevin M. Knightly White 92.97 87 10/1/91 Leandro Gasca Hispanic 92.88 88 2/17/87 Leroy Hearon Black 92.33 92 9/4/79 Lee Hooper Black 92.33 95 7/16/86 Antionette Barrett Black 91.69 111 12/1/89 Robert L. Eiland Black 91.08 116 8/3/87 Gonzalo A. Ruiz Hispanic 91.05 126 10/1/91 James E. Nash Black 90.84 129 12/3/90 Gregory G. Edingburg Black 90.10 143 8/16/78 William J. Rodriguez Hispanic 71.07 719 3/1/77 Frederick L. Taylor Black 76.34 558 3/1/80 Thomas J. Casey White 83.38 320 2/16/85 Michael W. Pabich White 75.52 576 10/16/78 *Gary J. Kochan is a plaintiff in Horan.

255. Twenty-seven (27) of the 38 fire lieutenant candidates on P.O. No. 2000-26, whose promotions were effective December 1, 2000, were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39903. The next seven (7) promotions (Hearon, Hooper, Barrett, Eiland, Ruiz, Nash and Edingburg) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 6, 2000 letter from Commissioner Carr to Commissioner Joyce. The remaining four (4) promotions (Rodriguez, Taylor, Casey and Pabich) were made as part of the performance selection process of fire lieutenant promotional examination #39903, pursuant to Article IX, Section 9.3.B.4. of the CBA between the City and Local No. 2. These performance based selections are not challenged in this litigation.

256. P.O. No. 2000-26 also included the following 31 fire lieutenant candidates with the following scores and ranks, whose promotions were effective December 16, 2000:

Personnel Order No. 2000-26 (eff. 12/16/00)

Name Race Score Rank Date of Hire

John J. Cullina White 92.45 90 2/17/87 Timothy J. Finnegan White 92.33 91 4/1/76 Kevin R. Dietz White 92.33 93 2/18/80 Patrick D. Baker White 92.33 94 7/16/86 Brian J. Mclaughlin White 92.33 97 11/1/86 Harry G. Hughes White 92.33 98 11/1/88 John J. Giordano White 92.33 99 11/1/89 Brian E. Helmold White 92.33 100 11/16/90 Brian T. McKermitt White 92.33 101 12/3/90 James R. Corbett White 92.33 102 10/1/91 John J. Gruber White 92.05 103 9/4/79 Patrick J. Casey White 92.03 104 12/3/90 Albert Michelon White 91.93 105 2/19/89 Donald J. Kussmann White 91.81 106 3/1/80 Bryan G. Martin White 91.81 107 12/1/88 Michael A. Owcarz White 91.69 108 3/1/80 Joseph J. Kinnerk White 91.69 109 7/16/86 Terry K. O'Donnell White 91.69 110 8/3/87 Michael S. Hoffman White 91.69 112 10/1/91 Kirk T. Jenssen White 91.69 113 10/1/91 George A. Gonzalez Hispanic 89.77 153 2/17/87 Rodney Herring Black 89.77 157 12/3/90 James A. Rivera Hispanic 89.47 161 12/3/90 Michael E. Tobar Hispanic 89.13 166 7/16/86 Charles E. Williams Black 89.13 167 8/3/87 Barry A. Mitchell Black 88.85 169 8/3/87 Raymond A. Smith Black 88.49 177 11/1/86 Donald E. Bans Black 88.49 180 12/1/88 Dexter Ballentine Black 73.15 653 7/16/77 Thomas G. Wagner White 83.17 327 2/19/80 Larry W. Anoman White 78.60 463 2/15/80 257. Twenty (20) of the 31 fire lieutenant candidates on P.O. No. 2000-26, whose promotions were effective December 16, 2000, were promoted in rank order from the eligible list based on fire lieutenant promotional examination #39903. The next eight (8) promotions (Gonzalez, Herring, Rivera, Tobar, Williams, Mitchell, Smith and Bans) were made out of rank order from that eligible list and claimed by the City to be justified for affirmative action reasons as stated in the December 6, 2000 letter from Commissioner Carr to Commissioner Joyce. The remaining three (3) promotions (Ballentine, Wagner, Anoman) were made as part of the performance selection process of fire lieutenant promotional examination #39903, pursuant to Article IX, Section 9.3.B.4. of the CBA between the City and Local No. 2. Those performance-based promotions are not challenged in this litigation.

258. The eligible list based on fire lieutenant promotional examination #39903 is still active.

259. Pursuant to the wrap-around agreement in the CBA between the City and Local No. 2, the candidates who were passed over for promotion on the eligible list based on fire lieutenant promotional examination #39903 because of the City's affirmative action will be placed at the top of the eligible list for the next fire lieutenant promotional examination.

260. All of the candidates promoted out of rank order for affirmative action reasons from the eligible list based on fire lieutenant promotional examination #39903 received a score within 5.02 points of the candidates promoted in rank order at the same time they were promoted.

261. From November 16, 2000 to and including December 16, 2000, a total of 129 promotions to fire lieutenant were made and accepted from the eligible list based on fire lieutenant promotional examination #39903. Of those 129 promotions, 103 went to whites, 17 went to blacks, eight (8) went to Hispanics and one (1) went to an Asian American. Of those 129 promotions, 15 were made on a non-rank order basis and claimed to be justified for the reasons articulated in Commissioner Carr's December 6, 2000 letter to Commissioner Joyce. Of those 15 rank-order promotions, 11 promotions went to black candidates and four (4) went to Hispanic candidates.

I. The plaintiffs

262. Plaintiff James Banks is white. Plaintiff Banks was hired by the City of Chicago on November 16, 1978. Plaintiff Banks took fire lieutenant promotional examination #39202. Plaintiff Banks' final score on fire lieutenant promotional examination #39202 was 90.74 and his rank was 342. Plaintiff Banks claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Banks was promoted to lieutenant effective November 16, 2000.

263. Plaintiff Terry Benner is white. Plaintiff Benner was hired by the City of Chicago on July 16, 1986. Plaintiff Benner took fire lieutenant promotional examination #39202. Plaintiff Benner's final score on fire lieutenant promotional examination #39202 was 90.52 and his rank was 365. Plaintiff Benner claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Benner retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

264. Plaintiff Adrian Bigott is white. Plaintiff Bigott was hired by the City of Chicago on February 1, 1983. Plaintiff Bigott took fire captain promotional examination #39802. Plaintiff Bigott's final score on fire captain promotional examination #39802 was 92.09 and his rank was 48. Plaintiff Bigott claims that he should have been promoted to fire captain on April 16, 2000. Plaintiff Bigott was promoted from lieutenant to captain effective November 16, 2000.

265. Plaintiff James Blake is white. Plaintiff Blake was hired by the City of Chicago on December 1, 1988. Plaintiff Blake took fire lieutenant promotional examination #39202. Plaintiff Blake's final score on fire lieutenant promotional examination #39202 was 90.45 and his rank was 372. Plaintiff Blake claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Blake was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Blake retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

266. Plaintiff Steven Brady is white. Plaintiff Brady was hired by the City of Chicago on December 3, 1990. Plaintiff Brady took fire lieutenant promotional examination #39202. Plaintiff Brady's final score on fire lieutenant promotional examination #39202 was 90.64 and his rank was 348. Plaintiff Brady claims that he should have been promoted to fire lieutenant on July 1, 1999. Pursuant to the wrap-around provisions of the CBA, plaintiff Brady was placed at the top of fire lieutenant eligible list #39903. Plaintiff Brady waived promotion to fire lieutenant on November 16, 2000, June 16, 2001 and August 1, 2001 and therefore was no longer eligible for promotion from lieutenant list #39903.

267. Plaintiff Joseph Brennan, Jr. is white. Plaintiff Brennan was hired by the City of Chicago on October 10, 1978. Plaintiff Brennan took fire lieutenant promotional examination #39202. Plaintiff Brennan's final score on fire lieutenant promotional examination #39202 was 90.28 and his rank was 379. Plaintiff Brennan claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Brennan was promoted from firefighter to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Brennan retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

268. Plaintiff John Bucher is white. Plaintiff Bucher was hired by the City of Chicago on February 17, 1987. Plaintiff Bucher took fire lieutenant promotional examination #39202. Plaintiff Bucher's final score on fire lieutenant promotional examination #39202 was 90.61 and his rank was 350. Plaintiff Bucher claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Bucher was promoted to lieutenant effective November 16, 2000.

269. Plaintiff Joel Burns is white. Plaintiff Burns was hired by the City of Chicago on November 1, 1989. Plaintiff Burns took fire lieutenant promotional examination #39202. Plaintiff Burns' final score on fire lieutenant promotional examination #39202 was 90.18 and his rank was 390. Plaintiff Burns claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Burns was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Burns retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

270. Plaintiff James Byrne is white. Plaintiff Byrne was hired by the City of Chicago on December 3, 1990. Plaintiff Byrne took fire engineer promotional examination #39702. Plaintiff Byrne's final score on fire engineer promotional examination # 39702 was 81.51 and his rank was 72. Plaintiff Byrne claims that he should have been promoted to fire engineer on July 1, 1999. Plaintiff Byrne was promoted from firefighter to engineer effective April 16, 2000.

271. Plaintiff Robert Casey is white. Plaintiff Casey was hired by the City of Chicago on February 4, 1982. Plaintiff Casey took fire lieutenant promotional examination #39202. Plaintiff Casey's final score on fire lieutenant promotional examination #39202 was 90.56 and his rank was 359. Plaintiff Casey claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff was promoted to lieutenant effective November 16, 2000.

272. Plaintiff Mel Charoenrath is white. Plaintiff Charoenrath was hired by the City of Chicago on November 1, 1988. Plaintiff Charoenrath took fire engineer promotional examination #39305. Plaintiff Charoenrath's final score on fire engineer promotional examination # 39305 was 79.63 and his rank was 187. Plaintiff Charoenrath claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Charoenrath was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Charoenrath retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001.

273. Plaintiff John Chwarzynski is white. Plaintiff Chwarzynski was hired by the City of Chicago on February 17, 1987. Plaintiff Chwarzynski took fire lieutenant promotional examination #39202. Plaintiff Chwarzynski's final score on fire lieutenant promotional examination #39202 was 90.50 and his rank was 366. Plaintiff Chwarzynski claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Chwarzynski was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Chwarzynski retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

274. Plaintiff Edward Clafford is white. Plaintiff Clifford was hired by the City of Chicago on May 1, 1990. Plaintiff Clafford took fire lieutenant promotional examination #39202. Plaintiff Clafford's final score on fire lieutenant promotional examination #39202 was 90.46 and his rank was 370. Plaintiff Clafford claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Clafford was to lieutenant effective November 16, 2000.

275. Plaintiff Kevin Clark is white. Plaintiff Clark was hired by the City of Chicago on November 1, 1989. Plaintiff Clark took fire lieutenant promotional examination #39202. Plaintiff Clark's final score on fire lieutenant promotional examination #39202 was 90.47 and his rank was 369. Plaintiff Clark claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Clark was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Clark retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

276. Plaintiff Dennis Darling is white. Plaintiff Darling was hired by the City of Chicago on February 19, 1980. Plaintiff Darling took fire lieutenant promotional examination #39202. Plaintiff Darling's final score on fire lieutenant promotional examination #39202 was 91.06 and his rank was 313. Plaintiff Darling claims that he should have been promoted to fire lieutenant on June 1, 1998. Plaintiff Darling was promoted to lieutenant effective July 1, 1999.

277. Plaintiff Michael Dudak is white. Plaintiff Dudak was hired by the City of Chicago on May 1, 1990. Plaintiff Dudak took fire engineer promotional examination #39305. Plaintiff Dudak's final score on fire engineer promotional examination # 39305 was 79.01 and his rank was 199. Plaintiff Dudak claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Dudak was promoted from firefighter to engineer effective July 1, 1999. Plaintiff Dudak took fire lieutenant promotional examination #39903. Plaintiff Dudak's final score on fire lieutenant promotional examination #39903 was 91.05 and his rank was 123. Plaintiff Dudak claims that he should have been promoted to fire lieutenant on November 16, 2000. Plaintiff Dudak was promoted from engineer to lieutenant effective February 16, 2002.

278. Plaintiff William Duffy is white. Plaintiff Duffy was hired by the City of Chicago on September 4, 1979. Plaintiff Duffy took fire lieutenant promotional examination #39202. Plaintiff Duffy's final score on fire lieutenant promotional examination #39202 was 90.21 and his rank was 387. Plaintiff Duffy claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Duffy was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Duffy retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

279. Plaintiff Theodore Eck is white. Plaintiff Eck was hired by the City of Chicago on March 15, 1980. Plaintiff Eck took fire lieutenant promotional examination #3 9202. Plaintiff Eck's final score on fire lieutenant promotional examination #39202 was 90.60 and his rank was 352. Plaintiff Eck claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Eck was promoted to lieutenant effective November 16, 2000.

280. Plaintiff Dan Fabrizio is white. Plaintiff Fabizio was hired by the City of Chicago on September 4, 1979. Plaintiff Fabrizio took fire battalion chief promotional examination #39308. Plaintiff Fabrizio's final score on fire battalion chief promotional examination # 39308 was 82.03 and his rank was 51. Plaintiff Fabrizio claims that he should have been promoted to battalion chief on July 1, 1999. Plaintiff Fabrizio was promoted from captain to battalion chief effective April 1, 2000.

281. Plaintiff Craig Foch is white. Plaintiff Foch was hired by the City of Chicago on July 16, 1986. Plaintiff Foch took fire lieutenant promotional examination #39202. Plaintiff Foch's final score on fire lieutenant promotional examination #39202 was 90.75 and his rank was 340. Plaintiff Foch claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Foch was promoted to lieutenant effective November 16, 2000.

282. Plaintiff John Gariti is white. Plaintiff Gariti was hired by the City of Chicago on July 16, 1986. Plaintiff Gariti took fire lieutenant promotional examination #39202. Plaintiff Gariti's final score on fire lieutenant promotional examination #39202 was 90.23 and his rank was 385. Plaintiff Gariti claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Gariti was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Gariti retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

283. Plaintiff Thomas Geschrey is white. Plaintiff Geschrey was hired by the City of Chicago on February 16, 1985. Plaintiff Geschrey took fire engineer promotional examination #39305. Plaintiff Geschrey's final score on fire engineer promotional examination # 39305 was 78.86 and his rank was 203. Plaintiff Geschrey claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Geschrey was promoted from firefighter to engineer effective November 16, 2000.

284. Plaintiff William Graves is white. Plaintiff Graves was hired by the City of Chicago on June 16, 1971. Plaintiff Graves took fire captain promotional examination #39104. Plaintiff Graves' final score on fire captain promotional examination #39104 was 86.30 and his rank was 139. Plaintiff Graves claims that he should have been promoted to fire Captain on February 1, 1998. Plaintiff Graves was promoted from lieutenant to captain effective August 1, 2001. Pursuant to an arbitration award, plaintiff Graves retroactively received captain's pay for the period of July 1, 1999 to August 1, 2001.

285. Plaintiff Martin Holland is white. Plaintiff Holland was hired by the City of Chicago on June 16, 1971. Plaintiff Holland took fire battalion chief promotional examination #39308. Plaintiff Holland's final score on fire battalion chief promotional examination # 39308 was 92.14 and his rank was 18. Plaintiff Holland claims that he should have been promoted to battalion chief on July 1, 1996. Plaintiff Holland was promoted from captain to battalion chief effective January 1, 1997.

286. Plaintiff James Holtz is white. Plaintiff Holtz was hired by the City of Chicago on April 15, 1976. Plaintiff Holtz took fire lieutenant promotional examination #39202. Plaintiff Holtz' final score on fire lieutenant promotional examination #39202 was 90.53 and his rank was 364. Plaintiff Holtz claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Holtz was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Holtz retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

287. Plaintiff Angelo Imparato is white. Plaintiff Imparato was hired by the City of Chicago on February 16, 1977. Plaintiff Imparato took fire engineer promotional examination #39305. Plaintiff Imparato's final score on fire engineer promotional examination # 39305 was 80.02 and his rank was 179. Plaintiff Imparato claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Imparato was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Imparato retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001.

288. Plaintiff Fakhri Isa is white. Plaintiff Isa was hired by the City of Chicago on February 18, 1980. Plaintiff Isa took fire engineer promotional examination #39305. Plaintiff Isa's final score on fire engineer promotional examination # 39305 was 79.67 and his rank was 186. Plaintiff Isa claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Isa was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Isa retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001.

289. Plaintiff Michael Jakaitis is white. Plaintiff Jakaitis was hired by the City of Chicago on March 1, 1980. Plaintiff Jakaitis took fire engineer promotional examination #39305. Plaintiff Jakaitis's final score on fire engineer promotional examination # 39305 was 79.96 and his rank was 182. Plaintiff Jakaitis claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Jakaitis was promoted from firefighter to engineer effective July 1, 1999.

290. Plaintiff James Kleinick is white. Plaintiff Kleinick was hired by the City of Chicago on March 15, 1980. Plaintiff Kleinick took fire lieutenant promotional examination #39202. Plaintiff Kleinick's final score on fire lieutenant promotional examination #39202 was 90.54 and his rank was 362. Plaintiff Kleinick claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Kleinick was promoted to lieutenant effective November 16, 2000.

291. Plaintiff Gary Kochan is white. Plaintiff Kochan was hired by the City of Chicago on November 1, 1989. Plaintiff Kochan took fire lieutenant promotional examination #39202. Plaintiff Kochan's final score on fire lieutenant promotional examination #39202 was 90.42 and his rank was 375. Plaintiff Kochan claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Kochan was promoted to lieutenant effective December 1, 2000. Pursuant to an arbitration award, plaintiff Kochan retroactively received lieutenant's pay for the period of November 16, 2000 to December 1, 2000.

292. Plaintiff Andrew Kooistra is white. Plaintiff Kooistra was hired by the City of Chicago on December 1, 1988. Plaintiff Kooistra took fire lieutenant promotional examination #39202. Plaintiff Kooistra's final score on fire lieutenant promotional examination #39202 was 90.22 and his rank was 386. Plaintiff Kooistra claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Kooistra was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Kooistra retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

293. Plaintiff James LaFaire is white. Plaintiff LaFaire was hired by the City of Chicago on December 22, 1973. Plaintiff LaFaire took fire engineer promotional examination #39305. Plaintiff LaFaire's final score on fire engineer promotional examination # 39305 was 79.99 and his rank was 181. Plaintiff LaFaire claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff LaFaire retired from the CFD on February 2, 2001. Pursuant to an arbitration award, plaintiff LaFaire retroactively received engineer's pay for the period of July 1, 1999 to February 2, 2001.

294. Plaintiff Richard Lynch is white. Plaintiff Lynch was hired by the City of Chicago on February 16, 1985. Plaintiff Lynch took fire lieutenant promotional examination #39202. Plaintiff Lynch's final score on fire lieutenant promotional examination #39202 was 90.58 and his rank was 355. Plaintiff Lynch claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Lynch was promoted to lieutenant effective November 16, 2000.

295. Plaintiff Donald Matthews is white. Plaintiff Matthews was hired by the City of Chicago on November 1, 1986. Plaintiff Matthews took fire engineer promotional examination #39305. Plaintiff Matthews' final score on fire engineer promotional examination #39305 was 79.69 and his rank was 184. Plaintiff Matthews claims that he should have been promoted to fire engineer on August 1, 1997. Plaintiff Matthews was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Matthews retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001.

296. Plaintiff John McCarthy is white. Plaintiff McCarthy was hired by the City of Chicago on March 1, 1980. Plaintiff McCarthy took fire lieutenant promotional examination #39202. Plaintiff McCarthy's final score on fire lieutenant promotional examination #39202 was 90.74 and his rank was 342. Plaintiff McCarthy claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff McCarthy was promoted to lieutenant effective November 16, 2000.

297. Plaintiff John Micotto is white. Plaintiff Micotto was hired by the City of Chicago on February 16, 1977. Plaintiff Micotto took fire captain promotional examination # 39104. Plaintiff Micotto's final score on fire captain promotional examination #39104 was 86.61 and his rank was 132. Plaintiff Micotto claims that he should have been promoted to fire captain on February 1, 1998. Plaintiff Micotto was promoted from lieutenant to captain effective July 1, 1999.

298. Plaintiff Thomas Miller is white. Plaintiff Miller was hired by the City of Chicago on November 1, 1986. Plaintiff Miller took fire lieutenant promotional examination # 39202. Plaintiff Miller's final score on fire lieutenant promotional examination #39202 was 90.77 and his rank was 339. Plaintiff Miller claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Miller was promoted to lieutenant effective November 16, 2000.

299. Plaintiff John Millerick is white. Plaintiff Millerick was hired by the City of Chicago on February 18, 1980. Plaintiff Millerick took fire captain promotional examination #39802. Plaintiff Millerick's final score on fire captain promotional examination # 39802 was 93.19 and his rank was 36. Plaintiff Millerick claims that he should have been promoted to fire captain on August 16, 1999. Plaintiff Millerick was promoted from lieutenant to captain effective April 1, 2000.

300. Plaintiff Matthew Mowen is white. Plaintiff Mowen was hired by the City of Chicago on February 18, 1987. Plaintiff Mowen took fire engineer promotional examination #39305. Plaintiff Mowen's final score on fire engineer promotional examination # 39305 was 79.51 and his rank was 192. Plaintiff Mowen claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Mowen was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Mowen retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001.

301. Plaintiff Jeffrey Newton is white. Plaintiff Newton was hired by the City of Chicago on February 18, 1980. Plaintiff Newton took fire captain promotional examination #39802. Plaintiff Newton's final score on fire captain promotional examination # 39802 was 93.25 and his rank was 34. Plaintiff Newton claims that he should have been promoted to fire captain on July 1, 1999. Plaintiff Newton was promoted from lieutenant to captain effective April 1, 2000.

302. Plaintiff Kevin Nitsche is white. Plaintiff Nitsche was hired by the City of Chicago on December 1, 1988. Plaintiff Nitsche took fire lieutenant promotional examination #39202. Plaintiff Nitsche's final score on fire lieutenant promotional examination #39202 was 90.24 and his rank was 384. Plaintiff Nitsche claims that he should have been promoted to fire lieutenant on July 16, 1999. Pursuant to an arbitration award, plaintiff Nitsche was promoted to lieutenant effective August 1, 2001. Plaintiff Nitsche retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

303. Plaintiff Lawrence O'Brien is white. Plaintiff O'Brien was hired by the City of Chicago on February 20, 1980. Plaintiff O'Brien took fire lieutenant promotional examination # 39202. Plaintiff O'Brien's final score on fire lieutenant promotional examination #39202 was 91.72 and his rank was 273. Plaintiff O'Brien claims that he should have been promoted to fire lieutenant on February 1, 1998. Plaintiff O'Brien was promoted to lieutenant effective June 1, 1998.

304. Plaintiff Daniel O'Farrell, Jr. is white. Plaintiff O'Farrell was hired by the City of Chicago on July 16, 1986. Plaintiff O'Farrell took fire lieutenant promotional examination #39202. Plaintiff O'Farrell's final score on fire lieutenant promotional examination #39202 was 90.32 and his rank was 378. Plaintiff O'Farrell claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff O'Farrell was promoted from firefighter to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff O'Farrell retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

305. Plaintiff Keith Oliver is white. Plaintiff Oliver was hired by the City of Chicago on December 3, 1990. Plaintiff Oliver took fire lieutenant promotional examination #39202. Plaintiff Oliver's final score on fire lieutenant promotional examination #39202 was 90.49 and his rank was 367. Plaintiff Oliver claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Oliver was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Oliver retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

306. Plaintiff Robert O'Toole is white. Plaintiff O'Toole was hired by the City of Chicago on February 20, 1980. Plaintiff O'Toole took fire lieutenant promotional examination #39202. Plaintiff O'Toole's final score on fire lieutenant promotional examination #39202 was 90.81 and his rank was 337. Plaintiff O'Toole claims that he should have been promoted to fire lieutenant on June 1, 1998. Plaintiff O'Toole was promoted to lieutenant effective November 16, 2000.

307. Plaintiff Roman Paluch is white. Plaintiff Paluch was hired by the City of Chicago on Decembers, 1990. Plaintiff Paluch took fire lieutenant promotional examination #3 9202. Plaintiff Paluch's final score on fire lieutenant promotional examination #39202 was 90.78 and his rank was 338. Plaintiff Paluch claims that he should have been promoted to fire lieutenant on June 16, 1998. Plaintiff Paluch was promoted to lieutenant effective November 16, 2000.

308. Plaintiff David Prazuch is white. Plaintiff Prazuch was hired by the City of Chicago on February 1, 1982. Plaintiff Prazuch took fire engineer promotional examination #39305. Plaintiff Prazuch's final score on fire engineer promotional examination # 39305 was 80.21 and his rank was 175. Plaintiff Prazuch claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Prazuch was promoted from firefighter to engineer effective December 16, 2000. Pursuant to an arbitration award, plaintiff Prazuch retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

309. Plaintiff Gregg Reynolds is white. Plaintiff Reynolds was hired by the City of Chicago on November 1, 1988. Plaintiff Reynolds took fire lieutenant promotional examination #39202. Plaintiff Reynolds' final score on fire lieutenant promotional examination #39202 was 90.55 and his rank was 360. Plaintiff Reynolds claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Reynolds was promoted to lieutenant effective November 16, 2000.

310. Plaintiff James Roccasalva is white. Plaintiff Roccasalva was hired by the City of Chicago on February 18, 1980. Plaintiff Roccasalva took fire lieutenant promotional examination #39202. Plaintiff Roccasalva's final score on fire lieutenant promotional examination #39202 was 90.54 and his rank was 362. Plaintiff Roccasalva claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Roccasalva was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Roccasalva retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

311. Plaintiff Michael J. Roche is white. Plaintiff Roche was hired by the City of Chicago on November 1, 1986. Plaintiff Roche took fire lieutenant promotional examination #39202. Plaintiff Roche's final score on fire lieutenant promotional examination #39202 was 90.66 and his rank was 347. Plaintiff Roche claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Roche was promoted to lieutenant effective November 16, 2000.

312. Plaintiff Michael T. Roche is white. Plaintiff Roche was hired by the City of Chicago on November 1, 1989. Plaintiff Roche took fire lieutenant promotional examination #39202. Plaintiff Roche's final score on fire lieutenant promotional examination #39202 was 90.61 and his rank was 350. Plaintiff Roche claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Roche was promoted to lieutenant effective November 16, 2000.

313. Plaintiff Kurt Rouette is white. Plaintiff Rouette was hired by the City of Chicago on February 19, 1980. Plaintiff Rouette took fire lieutenant promotional examination #39202. Plaintiff Rouette's final score on fire lieutenant promotional examination #39202 was 90.57 and his rank was 357. Plaintiff Rouette claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Rouette was promoted to lieutenant effective November 16, 2000.

314. Plaintiff Thomas Schergen is white. Plaintiff Schergen was hired by the City of Chicago on February 14, 1980. Plaintiff Schergen took fire lieutenant promotional examination #39202. Plaintiff Schergen's final score on fire lieutenant promotional examination #39202 was 90.44 and his rank was 373. Plaintiff Schergen claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Schergen was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Schergen retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

315. Plaintiff Brian Smith is white. Plaintiff Smith was hired by the City of Chicago on May 1, 1990. Plaintiff Smith took fire lieutenant promotional examination #39202. Plaintiff Smith's final score on fire lieutenant promotional examination #39202 was 90.63 and his rank was 349. Plaintiff Smith claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Smith was promoted to lieutenant effective November 16, 2000.

316. Plaintiff Viorel Stirbu is white. Plaintiff Stirbu was hired by the City of Chicago on August 3, 1987. Plaintiff Stirbu took fire engineer promotional examination #39305. Plaintiff Stirbu's final score on fire engineer promotional examination # 39305 was 79.53 and his rank was 190. Plaintiff Stirbu claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Stirbu was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Stirbu retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001.

317. Plaintiff Dan Sullivan is white. Plaintiff Sullivan was hired by the City of Chicago on May 2, 1988. Plaintiff Sullivan took fire engineer promotional examination #39305. Plaintiff Sullivan's final score on fire engineer promotional examination # 39305 was 79.53 and his rank was 190. Plaintiff Sullivan claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Sullivan was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Sullivan retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001. On February 16, 2002, plaintiff Sullivan was promoted from engineer to lieutenant.

318. Plaintiff Michael Timothy is white. Plaintiff Timothy was hired by the City of Chicago on February 15, 1980. Plaintiff Timothy took fire battalion promotional examination #39308. Plaintiff Timothy's final score on fire battalion chief promotional examination # 39308 was 81.96 and his rank was 52. Plaintiff Timothy claims that he should have been promoted to battalion chief on July 1, 1999. Plaintiff Timothy was promoted from captain to battalion chief effective April 1, 2000.

319. Plaintiff Terrence Totte is white. Plaintiff Totte was hired by the City of Chicago on October 10, 1978. Plaintiff Totte took fire lieutenant promotional examination #3 9202. Plaintiff Totte's final score on fire lieutenant promotional examination #39202 was 90.36 and his rank was 377. Plaintiff Totte claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Totte was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Totte retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

320. Plaintiff Joseph Trotta is white. Plaintiff Trotta was hired by the City of Chicago on February 18, 1980. Plaintiff Trotta took fire lieutenant promotional examination #39202. Plaintiff Trotta's final score on fire lieutenant promotional examination #39202 was 90.25 and his rank was 381. Plaintiff Trotta claims that he should have been promoted to fire lieutenant on July 16, 1999. Plaintiff Trotta was promoted to lieutenant effective August 1, 2001. Pursuant to an arbitration award, plaintiff Trotta retroactively received lieutenant's pay for the period of November 16, 2000 to August 1, 2001.

321. Plaintiff Kenneth Vaclavik is white. Plaintiff Vaclavik was hired by the City of Chicago on February 16, 1985. Plaintiff Vaclavik took fire lieutenant promotional examination #39202. Plaintiff Vaclavik's final score on fire lieutenant promotional examination #39202 was 90.58 and his rank was 355. Plaintiff Vaclavik claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Vaclavik was promoted to lieutenant effective November 16, 2000.

322. Plaintiff Robert Weel is white. Plaintiff Weel was hired by the City of Chicago on December 1, 1988. Plaintiff Weel took fire engineer promotional examination #39702. Plaintiff Weel's final score on fire engineer promotional examination # 39702 was 81.55 and his rank was 71. Plaintiff Weel claims that he should have been promoted to fire engineer on July 16, 1999. Plaintiff Weel was promoted from firefighter to engineer effective April 16, 2000.

323. Plaintiff Bradley Wilson is white. Plaintiff Wilson was hired by the City of Chicago on July 16, 1986. Plaintiff Wilson took fire engineer promotional examination #39305. Plaintiff Wilson's final score on fire engineer promotional examination # 39305 was 78.94 and his rank was 201. Plaintiff Wilson claims that he should have been promoted to fire engineer on February 1, 1998. Plaintiff Wilson was promoted from firefighter to engineer effective August 1, 2001. Pursuant to an arbitration award, plaintiff Wilson retroactively received engineer's pay for the period of July 1, 1999 to August 1, 2001.

324. Plaintiff Scott Wisniewski is white. Plaintiff Wisniewski was hired by the City of Chicago on February 5, 1980. Plaintiff Wisniewski took fire lieutenant promotional examination #39202. Plaintiff Wisniewski's final score on fire lieutenant promotional examination #39202 was 90.73 and his rank was 344. Plaintiff Wisniewski claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Wisniewski was promoted to lieutenant effective November 16, 2000.

325. Plaintiff Stanley Wozniak is white. Plaintiff Wozniak was hired by the City of Chicago on October 16, 1978. Plaintiff Wozniak took fire lieutenant promotional examination #39202. Plaintiff Wozniak's final score on fire lieutenant promotional examination #39202 was 90.75 and his rank was 341. Plaintiff Wozniak claims that he should have been promoted to fire lieutenant on July 1, 1999. Plaintiff Wozniak was promoted to lieutenant effective November 16, 2000.

326. Plaintiff Michael Wsol is white. Plaintiff Wsol was hired by the City of Chicago on October 16, 1978. Plaintiff Wsol took fire lieutenant promotional examination # 39202. Plaintiff Wsol's final score on fire lieutenant promotional examination #39202 was 91.84 and his rank was 264. Plaintiff Wsol claims that he should have been promoted to fire lieutenant on February 1, 1998. Plaintiff Wsol was promoted to lieutenant effective June 1, 1998.

327. The names of each of the plaintiffs identified in paragraphs 262 through 326, inclusive, would have appeared on the personnel orders covering the ranks to which they sought promotion and the dates they claim they should have been promoted if the City had not gone out of score rank order, which the City claims was justified on affirmative action grounds. Plaintiffs' actual promotion would have been subject to the opportunity to waive those promotions and contingent upon satisfying all eligibility requirements.

The Court's findings

The remaining findings of fact and conclusions of law are made by the Court in addition to the parties' stipulations.

A. CFD career service ranks

There are five career service ranks in the CFD: firefighter, engineer, lieutenant, captain, and battalion chief. Firefighter is the entry-level rank in the CFD. Firefighters suppress fires and provide medical services in emergency situations. The position is a physically demanding one, but it does not require any special skills. Firefighters work a 24-hour shift during which they eat, sleep and work together in the same firehouse in a team-oriented environment.

The next rank above firefighter is engineer. An engineer drives the fire truck to the emergency scene, is responsible for maintaining water pressure, and communicates with firefighters and members of the public who are at the scene until an officer arrives.

A lieutenant is the first-line supervisor; the lieutenant is responsible for the firefighters on his shift and for the maintenance of the fire truck. The lieutenant may be required to perform the initial evaluation of an emergency and decide the proper course of action while awaiting the arrival of a captain or battalion chief.

A captain, the next rank above lieutenant, is responsible for overseeing a fire scene until the battalion chief arrives. The captain is also responsible for the officers on the other two shifts and the maintenance of the fire truck or engine on all three shifts. He also is responsible for discipline and making sure rules and regulations are followed

The highest career-service rank in the CFD is battalion chief. The battalion chief is responsible on his shift for a battalion, which consists of several fire houses. He is responsible for ensuring that each fire house has sufficient manpower, and he has ultimate responsibility for oversight of the training and work done in the battalion. At an emergency scene, the battalion chief takes command, communicates with firefighters and the public, and is responsible for making incident reports. He makes sure that displaced citizens have a place to stay and that the buildings at the scene are in a safe condition. He also is responsible for disciplining the uniformed fire personnel in his battalion.

The work of a firefighter, an engineer, a lieutenant, a captain, and a battalion chief is largely learned through observation and on-the-job training. A college degree is not required to perform any of these jobs well. The evidence at trial established that on average, whites, African-Americans, and Latinos have performed equally well in each of these positions.

B. Firefighter entrance examinations; performance of CFD personnel

The City gave firefighter entrance examinations in 1974, 1978 and 1985, each of which included a written pass/fail reading comprehension test geared toward the types of materials firefighters are required to read and understand at the CFD training academy. The City did not require that applicants have a high school diploma or GED certificate as a prerequisite to taking these examinations. Those who passed the reading comprehension test were eligible to take a physical abilities examination. Candidates were ranked on the firefighter eligible list based on the results of the physical abilities test. All of those who passed both examinations were considered by the City to be, and were, qualified to serve as firefighters. The evidence at trial established that each of these examinations was developed using a content — validity approach and was job-related in that it was designed to capture essential knowledge, skills and abilities necessary to perform the job.

Each of the firefighter eligible lists for these three entrance examinations remained active for many years. During that time, candidates with both higher and lower scores on the written test were appointed to firefighter positions. The evidence at trial showed that firefighters hired from each of these eligible lists (about three-fourths of current uniformed employees of the CFD) were qualified to perform the job. Firefighters who received lower passing scores on the entrance examination on average performed as well in the field as those with higher passing scores, and on average firefighters from all racial and ethnic groups performed equally well. (A small number of the firefighters hired through the 1985 examination failed the state certification test; those who failed included whites, African — Americans, and Latinos.) Many of those hired from these examinations have been promoted to higher ranks. The evidence established that the overall performance and productivity of the CFD improved significantly between 1974 and 2000.

Plaintiffs offered an exhibit, PX P-8, purporting to consist of a list of firefighters discharged for cause between 1983 and 1999. The list indicated that 362 firefighters had been discharged for cause during that sixteen-year period and that these persons were disproportionately African-American. There is reason to doubt the veracity of this exhibit; Deputy Fire Chief Derrick Jackson testified that it included at least some firefighters who had resigned. In addition, a significant number of the listed discharges were not, strictly speaking, performance-related; many, for example, concerned substance abuse. The overall number of discharged firefighters on the list, an average of about twenty per year, is so small in comparison to the almost 5,000 uniformed members of the CFD that it is not reasonable to infer from it, as plaintiffs suggest, that African-Americans perform less well on the job than whites.

C. The CFD's history of intentional discrimination

The CFD intentionally discriminated against African — Americans and Latinos in its entry, promotional and other practices until some time in the 1980's and, generally speaking, made the Department uncongenial to members of minority groups. Chicago Firefighters Local 2 v. City of Chicago ("CFFU"), 249 F.3d 649, 652 (7th Cir.), cert. denied, 122 S.Ct. 465 (2001); McNamara v. City of Chicago, 138 F.3d 1219, 1224 (7th Cir. 1998). Although the City agreed in 1974 to a consent decree establishing an interim 50 percent minority (African-American and Latino) hiring ratio, the CFD put a hiring freeze into effect to stymie the decree's implementation. This lasted until 1976 even though vacancies existed and funding was available. During that same period, no promotions were made. During the 1970's, racial and ethnic prejudices in the CFD were well known in Chicago's minority communities, and this deterred potential minority applicants who believed job opportunities in the CFD were not available to them.

These intentionally discriminatory practices led to a significant lingering underrepresentation of African-Americans and Latinos in each of the CFD career-service ranks, lasting through at least March 1997. CFFU, 249 F.3d at 652; McNamara v. City of Chicago, 959 F. Supp. 870, 873 (N.D. Ill. 1997) ("decades of discrimination have caused a significant lingering overrepresentation of whites and a significant underrepresentation of blacks and Hispanics, particularly in the upper ranks, when the promotions were made from the 1987 captain's examination" in 1991 and 1992), aff'd, 138 F.3d 1219 (7th Cir. 1998). One of the key issues in this case is whether these effects lingered through the years in which the affirmative action promotions challenged in this case were made.

As recently as the late 1970's and early 1980's, minorities in the CFD found advancement slow compared to whites and found it difficult to obtain good assignments compared to their white counterparts. It appeared, for example, that minority candidates would not be promoted to the upper ranks unless and until a particular position there was vacated by another minority. Minority candidates for promotion received discriminatorily lower ratings on their job performance than white candidates. It was later determined by Fire Commissioner Galante in the mid-1980s that efficiency ratings for minority candidates were intentionally discriminatory. See Consolidated Chicago Firefighter Promotion Cases ("CFFU"), No. 87 C 7295, et al, 1999 WL 1289125, *60-61 (N.D. Ill. Dec. 30, 1999), aff'd, 249 F.3d 649 (7th Cir. 2001).

Because the plaintiffs in the present case do not dispute the CFD's long and deplorable history of intentional discrimination, the Court need not address the matter further. We turn, instead, to the disputed issues, including the question of whether the effects of the CFD's past discrimination still affected its promotional ranks at the time of the promotions at issue in this case.

D. The CFD's attempts to remedy the effects of its discrimination

The City was aware of the CFD's long history of discrimination and its lingering effects when it adopted the affirmative action policies that were at issue in the CFFU litigation and in this case. The City instituted a series of affirmative action promotions of minority candidates in order to, among other things, cure the effects of the prior discrimination. These will be discussed in detail below.

In CFFU, the plaintiffs, white CFD personnel who claimed to have been passed over for promotion due to out-of-rank-order promotions of minorities, sued to challenge those promotions as violative of equal protection and Title VII of the Civil Rights Act of 1964. After a bench trial, Judge James F. Holderman found that the challenged promotions through March 1997 from the eligible lists based on the 1985 fire engineer examination, the 1987 captain examination, the 1989 battalion chief examination, the 1993 lieutenant examination, and the 1994 engineer examination constituted lawful affirmative action that was narrowly tailored and that did not violate the Constitution. Those rulings were affirmed by the Seventh Circuit in CFFU.

The present case, as noted earlier, involves a challenge to the City's affirmative action promotions of African-American and Latino CFD personnel between 1997 and 2000 from the eligible lists based on several promotional examinations. The City justified the affirmative action promotions at issue in this case on several grounds: (1) the need to remedy the lingering effects of past discrimination at the CFD; (2) compliance with the consent decree in United States v. Albrecht, Nos. 73 C 661 90 C 1590 (N.D. HI.); (3) compliance with the City's obligations under Title VII of the Civil Rights Act of 1964; (4) achievement of diversity in the CFD's promotional ranks; and (5) compliance with a term in the collective bargaining agreement between the City and Local No. 2 which sets a goal of 45% African-American and Latino representation in all CFD ranks.¹

1 The City has not argued that the existence of this term in the collective bargaining agreement estops the plaintiffs (who are members of Local No. 2 and beneficiaries of the agreement) from bringing suit to challenge affirmative action promotions carried out pursuant to the agreement's mandate.

The following discussion concerns the particulars of each examination at issue and the resulting promotions.

1. Fire Engineer Examinations

a. 1994 examination #39305

In 1994, the City gave examination #39305, for promotion to fire engineer. On October 1, 1993, the last date on which applications for examination #39305 were accepted, the racial/ethnic composition of the fire engineer rank was 83.7 percent white, 13 percent African — American, and 3.3 percent Latino.

Because of the adverse impact on minorities of top-down ranking based on the results of the examination, and the City's perceived obligations under Title VII and the Albrecht consent decrees, HRStrategies, Inc., the City's testing consultant, recommended use of a "banding" approach to make promotions based on the results of that test. The standard error of difference between scores ("SED"), a measure for determining the equivalence of scores based on testing and measurement error, was used to calculate the appropriate band width for selecting candidates. The band width recommended by HRStrategies was 12.23 points, which is equal to two times the SED. Scores falling within this 12.23-point band do not reliably differ.

In his December 1, 1994 letter to then Fire Commissioner Raymond E. Orozco, City Personnel Commissioner Glenn E. Carr proposed that promotions made from examination #39305 be made at a ratio of 20% over the African-American and Latino composition of the rank (firefighter) eligible for promotion to fire engineer, so long as all promotions out of rank order for affirmative action purposes were made to candidates within a 12.23-point band. Carr stated that this was necessary to remedy the effects of prior discrimination, comply with the Albrecht consent decree and the CBA with Local No. 2, promote effective services to the community and management of a diverse Fire Department, and avoid potential Title VII liability due to the adverse impact on minorities that would result from use of the eligible list in strict rank order. The CFD followed Carr's recommendation. The City continually reviewed the appropriateness and tailoring of its affirmative action policies over the period of time that promotions were made from examination #39305.

All of the candidates, including plaintiffs, who were passed over for promotion as a result of the out-of-rank-order, affirmative action promotions to engineer from the eligible list based on examination #39305, and who were otherwise eligible for promotion, were promoted to engineer during the life of that list or pursuant to the wrap-around provisions in the CBA between the City and Local No. 2.

Between December 16, 1994 and July 1, 1999 (the effective date for the wrap-around promotions), there were 213 total promotions to fire engineer from examination #39305, of which 62 were affirmative action promotions (48 African-Americans, 14 Latinos) and 20 were wrap-around promotions.² The "net" affirmative action promotions were considerably less than 62. On July 15, 1999, there were 548 fire engineers; the net affirmative action promotions from examination # 39305 represented less than 10 percent of this total. The racial/ethnic composition of the fire engineer rank at that time was 416 white (75.9%), 103 African-American (18.8%), and 29 Latino (5.3%). Comparison with various benchmarks shows that minorities were still significantly underrepresented, depending on the adopted measure for determining the expected composition of the CFD uniformed ranks in the absence of racially discriminatory hiring and promotion.

2 The figures for affirmative action promotions differ somewhat from those in the City's proposed findings, which were not supported by the figures in the parties' stipulations for the pertinent dates.

In CFFU, Local No. 2 and 20 individual plaintiffs challenged the constitutionality of the 53 out-of-rank-order fire engineer promotions made between December 16, 1994 and March 1, 1997. Judge Holderman found that those promotions constituted lawful affirmative action that was narrowly tailored and that did not violate the Constitution. CFFU, 1999 WL 1289125, at^*84. Judge Holderman's ruling was affirmed on appeal.

b. 1998 examination #39702

The City gave another promotional examination for the position of fire engineer in 1998, examination #39702. Applications were accepted through October 10, 1997. At that time, the racial/ethnic composition of the fire engineer rank was approximately 80 percent white, 16 percent African-American, and 5 percent Latino.

After determining that use of top-down ranking in making promotions from the eligible list from examination #39702 would have an adverse impact on minorities, Aon Consulting recommended using a banding approach to make promotions based on the results of that test. The City used a band width of 5.91, which was equal to one SED. Scores falling within this 5.91-point band do not reliably differ.

In his December 18, 1998 letter to then Fire Commissioner Edward P. Airman, Personnel Commissioner Glenn E. Carr proposed that promotions from examination #39702 be made at a ratio of 20% over the African-American and Latino composition of the rank (firefighter) eligible for promotion to fire engineer, so long as any promotions out of rank order for affirmative action purposes be made only to candidates within a 5.91-point band Commissioner Carr justified this recommendation based on the need to remedy the lingering effects of past discrimination, comply with the Albrecht consent decree and the collective bargaining agreement with Local No. 2, more effectively provide services to the community and manage a diverse Fire Department, and avoid an adverse impact on minority candidates that might lead to liability under Title VII. The CFD followed Carr's recommendation. As promotions were made from the eligible list, the City continually reviewed its policies to ensure that affirmative action continued to be warranted and was narrowly tailored.

All of the candidates, including plaintiffs, who were passed over for promotion as a result of the out-of-rank-order, affirmative action promotions from the eligible list based on #39702 and were otherwise eligible for promotion will be promoted to engineer during the life of that list or pursuant to the wrap-around provisions in the CBA between the City and Local No. 2. The eligible list from this examination has now been retired, and the CFD is in the process of implementing the wrap-around provisions of the CBA.

A total of 89 promotions to fire engineer were offered and accepted from July 1, 1999 through April 16, 2000 (the rounds of promotion at issue in this litigation) from the eligible list based on fire engineer promotional examination #39702. Of those 89 promotions, 67 (75%) went to whites, 17 went to African-Americans, four went to Latinos and one went to an American Indian. Eleven of the promotions were non-rank order promotions; ten went to African-Americans and one went to a Latino. The non-rank order promotions were approximately 12 percent of the total promotions made from the examination.

Through November 16, 2000, there were 136 promotions (104 white, 23 African-American, 9 Latino), excluding wrap-around promotions from the previous examination, from the eligible list that was created following examination #39702. Of these promotions, 26 were affirmative action promotions (21 African-American, 5 Latino), but of those 26, only eight were net affirmative action promotions (4 African-American, 4 Latino). The net affirmative action promotions represent only 5.9 percent of the promotions from this examination eligible list through November 16, 2000, and less than 2 percent of the total number of fire engineers. On December 31, 2000, the racial/ethnic composition of the rank of fire engineer was 78.9 percent white, 14.5 percent African-American, and 6.6 percent Latino. From October 1996 through the end of 2000, white representation in the fire engineer rank declined by 0.2 percentage points, African-American representation declined by 1.8 percentage points, and Latino representation increased by 2.0 percentage points.

2. Fire Lieutenant Examinations

a. 1993 examination #39202

In 1993, the City administered examination #39202, for promotion to fire lieutenant. On December 31, 1992, after applications for the examination were no longer being accepted, the racial/ethnic composition of the lieutenant rank was 83.8 percent white, 12.1 percent African-American, and four percent Latino.

Because of the adverse impact of top-down ranking from the examination results and due to the City's perceived obligations under Title VII and the Albrecht existing consent decree, the City's testing consultant, HRStrategies, Inc., recommended using a banding approach to make promotions based on the results of that test. HRStrategies recommended a 6.02-point band, which was equal to two times the SED for the test. Scores within this band do not reliably differ.

In his December 6, 1993 letter to then Fire Commissioner Raymond E. Orozco, Personnel Commissioner Glenn E. Carr proposed that promotions from the examination be made at a ratio 20% over the African — American and Latino composition of the ranks (firefighter and fire engineer) eligible for promotion to fire lieutenant, so long as any promotions out of rank order for affirmative action purposes were made only to candidates with scores within the two-SED range of the candidate passed over. Commissioner Carr stated that this was necessary to remedy the lingering effects of past discrimination, comply with the Albrecht consent decree and the collective bargaining agreement with Local No. 2, avoid the risk of Title VTJ liability to minority candidates, and more effectively provide services to the community and manage a diverse Fire Department. The CFD followed those recommendations in making promotions from that eligible list. As promotions were made, the City continually reviewed its policies to ensure that affirmative action continued to be warranted and was narrowly tailored

All of the candidates, including plaintiffs, who were passed over for promotion as a result of the out-of-rank-order, affirmative action promotions from the eligible list based on examination #39202 and were otherwise eligible for promotion were promoted to lieutenant during the life of that list or pursuant to the wrap-around provisions in the CBA between the City and Local No. 2.

Between August 16, 1993 and July 1, 1999, there were 394 total promotions from examination #39202, of which 70 were affirmative action promotions (49 African-Americans, 21 Latinos) and 43 were wrap-around promotions of white CFD uniformed officers. A white officer waived wrap-around promotion on two separate occasions. No more than 50 of the promotions were net affirmative action promotions, a bit over 10 percent of the promotions made from this examination's eligible list, but well under 10 percent of the number of personnel who were in the rank of lieutenant on December 31, 1992.

On November 9, 2000, when the eligible list for this examination was canceled and all wraparound promotions had been made, the composition of the rank of lieutenant was 672 (79.8 percent) white, 96 (14.3 percent) African-American, and 40 (6.0 percent) Latino. The proportion of whites had decreased by only 4.0 percentage points over the intervening eight years, the proportion of African-Americans had increased by just 2.2 percentage points, and the proportion of Latinos had increased by just 2.0 percentage points. Comparison with various benchmarks shows that a significant shortfall in minority fire lieutenants still existed on November 9, 2000.

In CFFU, Local No. 2 and 45 individuals challenged the constitutionality of the 55 out-of-rank-order lieutenant promotions made between August 16, 1993 and March 1, 1997. These plaintiffs also challenged those 55 promotions under Title VII. Judge Holderman found that those promotions constituted lawful affirmative action that was narrowly tailored and did not violate the Constitution or Title VTJ. CFFU, 1999 WL 1289125, at *82, *85. This determination was affirmed on appeal.

b. 2000 examination #39903

In 2000, the City administered examination #39903, for promotion to fire lieutenant. Because use of top-down ranking would have had an adverse impact on minorities, and due to the City's obligations under the Albrecht decree and its perceived obligations under Title VTJ, the City's testing consultant, Aon Consulting, recommended use of a 5.02-point band, equal to one SED, in making promotions pursuant to the test. Scores falling within this 5.02-point band do not reliably differ.

In his December 6, 2000 letter to Fire Commissioner James Joyce, Personnel Commissioner Glenn E. Carr proposed that promotions made from examination #39903 be made at a ratio of 20% over the African — American and Latino composition of the ranks (firefighter and engineer) eligible for promotion to fire lieutenant, so long as any promotions out of rank order were made to candidates within the 5.02-point band. Commissioner Carr stated that this was necessary to remedy the lingering effects of past discrimination, comply with the Albrecht decree and the collective bargaining agreement with Local No. 2, avoid the potential of Title VTI liability resulting from adverse impact on minority candidates, and more effectively provide services to the community and manage a diverse Fire Department. The CFD followed Carr's recommendation. Over the period in which promotions have been made from this examination, the City has continued to review its policies to ensure that affirmative action continued to be warranted and was narrowly tailored.

All of the candidates, including plaintiffs, who were passed over for promotion as a result of the out-of-rank-order, affirmative action promotions from the eligible list based on examination #39903 and were otherwise eligible for promotion will be promoted to lieutenant during the life of that list or pursuant to the wrap — around provisions in the CBA between the City and Local No. 2.

A total of 129 promotions to fire lieutenant were offered and accepted from November 16, 2000, through December 16, 2000 (the rounds of promotion at issue in this litigation) from the eligible list based on fire lieutenant promotional examination #39903. Of those 130 promotions, 104 (80%) went to whites, 17 went to African-Americans, eight (8) went to Latinos and one (1) went to an Asian American. One white candidate waived promotions.

Through December 16, 2000, there have been 112 promotions (80 white, 21 African-American, 11 Latino) from the eligible list for the fire lieutenant examination #39903, excluding wraparound promotions from the previous examination. Of these, 15 have been affirmative action promotions (11 African-American, 4 Latino). The eligible list for this examination was still active at the time of trial. The affirmative action promotions to date represent just over 13 percent of the promotions made from the eligible list, but only about 2 percent of the personnel in the lieutenant rank on January 6, 1998 (the eligibility date for firefighters to take this lieutenant promotional examination) and only 1.7 percent of lieutenants on December 31, 2000. The racial/ethnic composition of the fire lieutenant CSR on January 6, 1998 was 80.4 percent white, 13.8 percent African-American, and 5.7 percent Latino, whereas it was 78.9 percent white, 14.5 percent African — American, and 6.6 percent Latino on December 31, 2000. This represents a decrease of only 1.5 percentage points for whites, an increase of only 0.7 percentage points for African-Americans, and an increase of only 0.9 percentage points for Latinos between January 1998 and December 2000. Comparisons with various benchmarks show that significant shortfalls in the expected minority representation in the fire lieutenant CSR still existed in December 2000.

3. Fire Captain Examinations

a. 1991 examination #39104

In 1991, the City administered examination #39104, for promotion to fire captain. On October 1, 1991, the racial/ethnic composition of the rank of captain was 87.5 percent white, 9.4 percent African — American, and 3.1 percent Latino.

The City attempted to create an examination that was a valid method of measuring the requisite skills, fitness and abilities required of fire captains. However, consistent with the requirements of the EEOC's Uniform Guidelines, the City could not validate fire captain promotional examination #39104 for use as a strict rank order selection device because it could not be proven that the small differences in scores among the candidates listed in rank order accurately predicted differences in job performance.

In his July 14, 1992 letter to then Fire Commissioner Raymond E. Orozco, Personnel Commissioner Glenn E. Carr stated that affirmative action promotions based on examination #39104 were necessary to remedy the lingering effects of past discrimination, comply with the Albrecht consent decree and the collective bargaining agreement with Local No. 2, and more effectively provide services to the community and manage a diverse Fire Department. The CFD followed Carr's recommendation. As it made promotions from the eligible list, the City continued to review its policies to ensure that affirmative action continued to be warranted and was narrowly tailored.

Each of the out-of-rank-order promotions from examination #39104 fell within 10.83 points, or two SEDs, of the scores of those candidates promoted in rank order at the same time. Within this range, the scores did not differ reliably. The City limited affirmative action promotions from the results of the 1991 captain examination #39104 to 20% above the percentage of minority personnel represented in the rank of lieutenant. The City has followed this policy consistently with regard to the promotions at issue in this case, even where minority underrepresentation due to past discrimination still exists in the rank below.

All of the candidates, including plaintiffs, who were passed over for promotion as a result of the out-of-rank-order, affirmative action promotions from the eligible list based on examination #39104 and were otherwise eligible for promotion were promoted to captain during the life of that list or pursuant to the wrap-around provisions in the CBA between the City and Local No. 2.

Between July 16, 1992 and August 1, 1999 (the effective date for the last wrap-around promotions), there were a total of 136 total promotions from the 1991 captain examination #39104, of which 22 were affirmative action promotions (15 African-Americans, 7 Latinos) and five were wraparound promotions of white CFD uniformed officers. Only five of the promotions were net affirmative action promotions (3 African-Americans, 2 Latinos), or about 3.8 percent of the total promotions, and only 2.2 percent of the number of personnel in the captain rank as of July 1, 1999. Following all promotions from the eligible list for this examination on July 1, 1999 (including the two wrap-around promotions), the racial/ethnic composition of the rank of captain was 78.6 percent white, 15.2 percent African — American, and 6.3 percent Latino. The proportion of whites in this rank declined by 8.9 percentage points, the proportion of African — Americans increased by 4.8 percentage points, and the proportion of Latinos increased by 3.2 percentage points. Comparisons with various benchmarks show that significant minority shortfalls still existed in the rank of captain relative to their expected representation as indicated by the benchmarks.

In CFFU, Judge Holderman found that eight out-of-rank-order promotions to captain between July 16, 1992 and March 1, 1997 constituted lawful affirmative action that was narrowly tailored and did not violate the Constitution. CFFU, 1999 WL 1289125, at *80. This ruling was affirmed on appeal.

b. 1999 examination #39802

The City gave another examination for promotion to captain in 1999. Because of the adverse impact of top-down ranking and for the other previously-stated reasons, the City's testing consultant, Aon Consulting, recommended use of a 4.75-point band, which was equal to one SED. Scores falling within this 4.75-point band do not reliably differ.

In his June 7, 1999 letter to then Fire Commissioner Edward P. Airman, Personnel Commissioner Glenn E. Carr proposed that promotions made from examination #39802 be made at a ratio of 20% over the African-American and Latino composition of the rank (lieutenant) eligible for promotion to fire captain, so long as any promotions out of rank order for affirmative action purposes be made only to candidates within a 4.75-point band. Commissioner Carr stated that this was necessary to remedy the lingering effects of past discrimination, comply with the Albrecht consent decree and the collective bargaining agreement with Local No. 2, avoid the risk of Title VTI liability based on adverse impact, and more effectively provide services to the community and manage a diverse Fire Department. The CFD followed these recommendations in making promotions from the eligible list. As promotions were made, the City continually reviewed its policies to ensure that affirmative action continued to be warranted and was narrowly tailored.

All of the candidates, including plaintiffs, who were passed over for promotion as a result of the out-of-rank-order, affirmative action promotions from the eligible list based on fire captain promotional examination #39803 and were otherwise eligible for promotion will be promoted to captain during the life of that list or pursuant to the wrap-around provisions in the CBA between the City and Local No. 2.

A total of 56 promotions were offered and accepted from July 1, 1999 through April 16, 2000 (the rounds of promotion at issue in this litigation) from the eligible list based on fire captain promotional examination #39802. Of those 56 promotions, 45 (80%) went to whites, and eleven were affirmative action promotions (7 African-American, 4 Latino). Through December 2000, there were 87 promotions (69 white, 13 African-American, 5 Latino) to fire captain from the eligible list for examination #39802, excluding wrap-around promotions attributed to fire captain examination #39104. Of these, 14 have been affirmative action promotions, nine of which are net affirmative action promotions. As of the time of trial, the eligible list from this examination was still active.

The net affirmative action promotions from the eligible list for the fire captain examination #39802 constitute 10.3 percent of all promotions from the list through December 2000, but only 4.3 percent of the total personnel holding the rank of captain on December 31, 2000. The racial/ethnic composition of the fire captain CSR on December 31, 2000 was 76.9 percent white, 15.9 percent African-American, and 7.2 percent Latino. Minorities experienced only modest increases in their proportional representation in the fire captain CSR since June 16, 1998, the day after examination #39802 was announced. For example, the proportion of African-Americans increased from 15.3 percent to 15.9 percent, a difference of only 0.6 percentage points.

d. Fire Battalion Chief Examination #39308

In 1995, the City administered examination #39308, for promotion to fire battalion chief. On January 1, 1994, the racial/ethnic composition of the rank of battalion chief was 88.6 percent white, 8.5 percent African-American, and 2.8 percent Latino.

Because of the adverse impact on minorities of top down ranking based on test scores, and the other previously stated reasons, HRStrategies, Inc. recommended use of an 8.48-point band, equal to two SEDs, for selecting candidates. Scores falling within this 8.48-point band do not differ reliably.

In his April 8, 1996 letter to then Fire Commissioner Raymond E. Orozco, Personnel Commissioner Glenn E. Carr proposed that promotions made from examination #39308 be made at a ratio of 20% over the African-American and Latino composition of the rank (captain) eligible for promotion to battalion chief, so long as any promotions out of rank order for affirmative action purposes were made only to candidates within a 8.48-point band Commissioner Carr justified this based on the need to remedy the effects of past discrimination, comply with the Albrecht consent decree and the collective bargaining agreement with Local No. 2, avoid possible Title VII liability based on adverse impact, and more effectively provide services to the community and manage a diverse Fire Department. The CFD followed Carr's recommendation. As promotions were made, the City continually reviewed its policies to ensure that affirmative action continued to be warranted and was narrowly tailored

All of the candidates, including plaintiffs, who were passed over for promotion as a result of the out-of-rank-order, affirmative action promotions from the eligible list based on examination #39308 and were otherwise eligible for promotion were promoted to battalion chief during the life of that list or pursuant to the wrap-around provisions in the CBA between the City and Local No. 2.

A total of 54 promotions to fire battalion chief were offered and accepted from August 1, 1995 through July 1, 1999 (the rounds of promotion at issue in this litigation) from the eligible list based on fire battalion chief promotional examination #39308. Of those 54 promotions, 47 (87%) went to whites, six (6) went to African-Americans and one (1) went to a Latino.

There were a total of 57 promotions from the 1995 battalion chief examination #39308. Six of these were affirmative action promotions (6 African-Americans) and three were wrap-around promotions of white uniformed officers. Of the six affirmative action promotions, three were net affirmative action promotions, or about 5.3 percent of the total promotions given and about 1.7 percent of the number of battalion chiefs as of February 14, 2000. On February 14, 2000, the date when this eligibility list was canceled, the racial/ethnic composition of the battalion chief CSR was 86.6 percent white, 10.5 percent African — American, and 2.9 percent Latino. During the period of promotions from this eligible list, the proportion of whites declined only two percentage points, the percentage of African-Americans increased two percentage points, and the proportion of Latinos increased less than 0.1 percentage points. Comparisons with various benchmarks show that minorities were still significantly underrepresented in the fire battalion chief CSR.

E. Lingering effects of the CFD's past discrimination

Simple mathematics and common sense suggest that the CFD's lengthy history of discrimination in hiring and promotions was bound to have long-lasting effects in the Department's promotional ranks. Because the CFD promotes only from within, a racial disparity at one rank will almost inevitably affect the higher ranks for years to come. By way of example, the pool of potential applicants for the position of engineer consists of firefighters; if firefighters apply for promotion to engineer in proportion to the racial composition of firefighters as a whole, a racial disparity in that rank will carry through to the rank of engineer. In view of the duration of the CFD's discriminatory hiring and promotion practices, the limited number of promotional openings, and the length of time needed to work one's way through the ranks, it is reasonable to expect that absent remedial efforts, the effects of the past discriminatory practices would linger for an extended period A key issue that the Court was required to determine in this case is whether these effects remained at the time of the challenged affirmative action promotions.

1. Dr. Suchanek's analyses

At trial, the City presented the analysis of Dr. Gerry L. Suchanek, a labor economist. After performing analyses on a series of benchmark labor pools, Dr. Suchanek concluded that at the time of the challenged affirmative action promotions, the CFD was still experiencing in its promotional ranks the lingering effects of its past discrimination against African-Americans and Latinos.

Dr. Suchanek likewise testified as an expert on behalf of the City in the CFFU trial before Judge Holderman. His work in the present case was a continuation of the work that he did for the CFFU case. Specifically, he refined the analyses that he presented in CFFU in light of the decisions in that case and McNamara and the evidence presented at the consolidated CFFU trial, and he updated his analysis to reflect information through December 31, 2000.

In CFFU, as in the present case, Dr. Suchanek created a series of benchmark labor pools to estimate what the composition of the CFD would have been if the Department had not discriminated in hiring or promotion. Judge Holderman found that the labor pool of those qualified and interested to be firefighters was somewhere between two of Dr. Suchanek's benchmarks: a low-end estimate of minorities represented by a "sustainable hire" rate based on the results of the 1985 firefighter entrance examination, and a high — end estimate of minorities represented by a "census-based" rate consisting of those persons who met the basic qualifications for taking a CFD entrance examination. Based on his identification of the appropriate labor pool, Dr. Suchanek performed further analyses to determine the disparities between the actual population in the various ranks and the population that would exist if persons were selected as firefighters, and were promoted, in percentages consistent with their relative proportions in the pertinent labor pools. He concluded that significant disparities existed at all levels for both African-Americans and Latinos, consistent with the anecdotal evidence of past intentional discrimination by the CFD in hiring and promotion. In CFFU, Judge Holderman found these analyses reliable, and he relied upon them as part of the basis for his decision in favor of the City in that case. In upholding the challenged affirmative action promotions in CFFU, the Seventh Circuit held that the "affirmative action plan in McNamara and in the present case boosted the percentages of blacks and Hispanics in the CFD promotional ranks but because there were so few minorities to begin with, and because promotions are infrequent, the actual percentage of minorities in the promotional ranks remained far below the minority percentage of the city's population even after correction for age, sex and other demographic variables that tend to vary by race and ethnicity." CFFU, 249 F.3d at 652. In addition, the minority percentage in the promotional ranks remained "lower than the minority percentages in the rank of firefighter, the lowest rank in the CFD." Id. The court rejected plaintiffs' arguments that Dr. Suchanek's benchmark labor pool populations were unreliable because they did not reflect the CFD's actual hiring experiences and because Dr. Suchanek failed to adjust his benchmarks to reflect differences in educational attainment and ability between whites, African — Americans and Latinos. Id. at 653. The court also rejected plaintiffs' challenge to the use of a census-based benchmark for the purpose of determining whether the effects of prior discrimination still lingered Id.

The Seventh Circuit also rejected plaintiffs' arguments that the low hire rate for African-Americans and Latino applicants from the 1995 firefighter entrance examination process supported a finding that the small number of African-Americans and Latinos in the CFD historically was the result of educational deficiencies of the members of the minority groups rather than discrimination. The court noted that the 1995 examination had not been determined to be "an accurate, unbiased test of job related skills. It has been challenged in litigation, not yet resolved, as being discriminatory, and there is no evidence in the record of this case to validate it as a proper screen for jobs in the fire department." It ruled that the district court was not required to accept the hire rates from the 1995 examination as "evidence of an incapacity of members of the minority group to meet appropriate educational standards for firefighter." Id. at 654.

In the present case as in CFFU, Dr. Suchanek utilized the "binomial distribution model"-an analysis used to predict outcomes on "binary" characteristics (in this case, whether the person is white or non-white)— to determine whether there were any disparities between the minority representation one would expect to see in the CFD based on various labor pool populations without discrimination and the CFD's actual minority representation. Under the binomial model, if the qualified and interested labor pool population is properly identified and the selection process being analyzed is race neutral, then, on average, selection over time should be representative of the racial composition in the benchmark labor pool population. Conversely, statistical bias against a racial group as reflected by systematic deviations from the racial composition of the benchmark labor pool is suggestive of bias against the particular racial group involved If a disparity is greater than two standard deviations away from the expected value, it is a low probability occurrence which must be explained. If the disparity cannot be explained, then one must conclude that the selection process is racially biased This model was used by both Dr. Suchanek and Dr. Joseph Altonji, the plaintiffs' expert, and it is an appropriate model for analysis of the data.

To perform his analyses, Dr. Suchanek created a series of labor pool benchmark populations using different assumptions regarding the composition of the interested and qualified applicant pool. These included the following benchmarks: census-based, applicant rate, pass rate, and sustainable hire rate.

Dr. Suchanek's census-based benchmark was derived from census data, restricted by age, gender, residency, and year of hire, to limit it to the pool of individuals who met the basic qualifications for employment as a firefighters and who were among those most likely to apply. For years prior to 1995, Dr. Suchanek applied no educational restriction because the City imposed no such restriction upon applicants prior to 1995. For 1995 and after, he restricted the pool to eliminate those without a high school education based on the City's determination to do so that year. Dr. Suchanek concluded that absent intentional discrimination, African-Americans would have applied for the job of firefighter in numbers significantly exceeding their representation in the census-based labor pool. This conclusion is credible; it is properly supported by applicant flow data for the post-1974 period and, in particular, the applicant data from the 1985 firefighter entrance examination, the first such examination given in an environment free from intentional discrimination in the CFD.

Dr. Suchanek's census-based benchmark reflects the following disparities between actual and expected African-American and Latino representation ( see PX 10-10):³

3 The "expected" figures in this and other tables are rounded to the next-lowest whole number.

Rank Date Afr. Amer. disparity Latino disparity actual expected std. devs. actual expected std. devs. Engineer 1997 104 181 -6.95 29 76 -5.85 Engineer 2000 118 184 -5.97 34 85 -6.0 Lieutenant 1997 101 226 -10.02 39 89 -5.73 Lieutenant 2000 106 246 -10.84 47 110 -6.52 Captain 1997 31 65 -5.09 11 21 -2.45 Captain 2000 35 74 -5.46 15 29 -2.78 Battalion Chief 1997 16 52 -5.9 5 14 -2.58 Battalion Chief 2000 26 61 -5.4 7 20 -3.09 The reference in this table (and later tables) to the number of "standard deviations" is a reference to the calculation of the extent to which items in a set of data vary from the mean. Two standard deviations away from the mean in either direction account for roughly 95% of the individual items in a given data set. In the present context, a disparity of more than two standard deviations is considered statistically significant and indicative of bias in the selection process.

Each of the disparities noted in the table is statistically significant. The disparities reflect that during the period when the City made the challenged affirmative action promotions, African-Americans and Latinos were underrepresented at each of the promotional ranks vis-a-vis the benchmark, due to the persistence of the lingering effects of the CFD's past intentional discrimination.

Dr. Suchanek's applicant-based benchmark reflects the racial and ethnic composition of the CFD as it would have been if personnel had been hired in proportion to the racial and ethnic composition of CFD applicants starting in 1974. The benchmark was created from applicant flow data for the 1974, 1978, 1985, and 1995 entrance examinations. For years prior to 1974, the calculation was based on combined data for 1974, 1978, and 1985 (not 1995, when as noted earlier, the CFD imposed a requirement of a high school diploma or equivalent). This was a reasonable and proper methodology. The benchmark was adjusted for differences in census — based racial and ethnic proportions in different observed years and for the distribution of personnel by year of hire. The applicant — based benchmark is aimed at measuring those who demonstrated an actual interest in the position of firefighter.

The applicant information from the 1974, 1978, and 1985 entrance examinations provides a reasonable proxy for what applicant rates would have been in earlier years under similar policies, namely a stated policy of race-neutral hiring. This measure is somewhat conservative because it reflects, to some degree, the fact that disincentives to application for minorities, and especially African-Americans, continued to persist throughout the 1970s.

Dr. Suchanek's applicant-based benchmark reflects the following disparities between actual and expected African — American and Latino representation (see PX 10-11):

Rank Date Afr. Amer. disparity Latino disparity actual actual expected std. devs. actual expected std. devs. Engineer 1997 104 201 -8.53 29 44 -2.42 Engineer 2000 118 214 -8.35 34 48 -2.19 Lieutenant 1997 101 252 -11.79 39 50 -1.71 Lieutenant 2000 106 284 -13.34 47 620 -2.08 Captain 1997 31 69 -5.57 11 12 -0.36 Captain 2000 35 81 -6.39 15 16 -0.34 Battalion Chief 1997 16 55 -6.34 5 7 -0.89 Battalion Chief 2000 26 65 -5.88 7 11 -1.26 Each of the disparities with regard to African-Americans is statistically significant. These disparities reflect that during the period when the City made the challenged affirmative action promotions, African-Americans were underrepresented at each of these ranks due to the persistence of the lingering effects of the CFD's past intentional discrimination. The same is true with regard to Latinos in the rank of engineer at all times during the period in question and in the rank of lieutenant in 2000. However, this particular model does not show statistically significant disparities regarding Latinos at the ranks of lieutenant as of 1997, captain, or battalion chief.

Dr. Suchanek's pass-rate benchmark was based on actual passing percentages from the 1985 and 1995 examinations, with the same year of hire restriction employed for the other benchmarks. Dr. Suchanek excluded the results of the 1978 examination because it was given at a time when disincentives to minorities were still present. This benchmark is a reliable and accurate measure of the expected qualified and interested labor pool historically and reflects the City's own measure of qualifications. The pass rate benchmark also accounts to some degree for differences in performance between whites, African-Americans and Latinos on the CFD's written tests of cognitive ability. This benchmark is more restrictive than the applicant and census based benchmarks.

Dr. Suchanek's pass-rate benchmark reflects the following disparities between actual and expected African-American and Latino representation (see PX 10-12):

Rank Date Afr. Amer. disparity Latino disparity actual expected std. devs. actual expected std. devs. Engineer 1997 104 175 -6.52 29 44 -2.43 Engineer 2000 118 181 -5.73 34 99 -7.26 Lieutenant 1997 101 217 -9.41 39 51 -1.85 Lieutenant 2000 106 241 -10.51 47 64 -2.29 Captain 1997 31 61 -4.57 11 12 -0.38 Captain 2000 35 71 -5.1 15 16 -0.44 Battalion Chief 1997 16 47 -5.31 5 7 -1.06 Battalion Chief 2000 26 57 -4.89 7 11 -1.32 Each of the disparities with regard to African-Americans is statistically significant. These disparities reflect that during the period when the City made the challenged affirmative action promotions, African-Americans were underrepresented at each of these ranks due to the persistence of the lingering effects of the CFD's past intentional discrimination. Indeed, as with various other benchmarks, this analysis reflects that the CFD's ongoing affirmative action efforts had at most a slight effect on the persistence of the effects of its prior intentional discrimination against minorities. This measure also reflects underrepresentation of Latinos in the rank of engineer at all times during the period in question and in the rank of lieutenant in 2000. However, this particular model does not show statistically significant disparities regarding Latinos at the ranks of lieutenant as of 1997, captain, or battalion chief.

Finally, Dr. Suchanek's sustainable hire rate benchmark is based on the racial composition of those hired from the 1985 entrance examination through 1994, the last full year in which hiring was done from the list of whose who passed the 1985 examination. It essentially reflects what the composition of the CFD would have been if the City historically had hired minorities in the same proportions as those hired from the 1985 examination. By the time of that examination, the intentionally discriminatory barriers to entry for African-Americans and Latinos that have been found to exist had been significantly, if not totally, eliminated The use of this benchmark is supported by the fact that the evidence reflects that the persons hired from the results of the 1985 examination were fully qualified to serve in the CFD. The evidence presented at trial showed that the CFD became more productive and efficient between 1985 and 1994, the time period during which hires from the 1985 entrance examination were made. In addition, several witnesses testified, without refutation, that there were no significant differences by race group in terms of on the job performance during the time the City was hiring from the results of the 1985 examination process.

Dr. Suchanek's sustainable hire rate benchmark reflects the following disparities between actual and expected African — American and Latino representation (see PX 10-13):

Rank Date Afr. Amer. disparity Latino disparity actual expected std. devs. actual expected std. devs. Engineer 1997 104 160 -5.26 29 40 -1.84 Engineer 2000 118 166 -4.45 34 45 -1.74 Lieutenant 1997 101 197 -8.06 39 46 -1.18 Lieutenant 2000 106 220 -9.12 47 58 -1.57 Captain 1997 31 55 -3.82 11 11 -0.01 Captain 2000 35 64 -4.31 15 15 -0.02 Battalion Chief 1997 16 42 -4.67 5 7 -0.79 Battalion Chief 2000 26 52 -4.17 7 10 -1.02 Each of the disparities with regard to African-Americans is statistically significant, reflecting that during the period when the City made the challenged affirmative action promotions, African — Americans were underrepresented at each of these ranks due to the persistence of the lingering effects of the CFD's past intentional discrimination. By contrast, this particular model does not show statistically significant disparities regarding Latinos at any time during the relevant period

A hire-based measure is not the best measure of disparity, because it excludes qualified and interested individuals who could not be hired because of economic and administrative constraints on the CFD during that period that limited the number of available positions. The 1985 entrance examination eligible list, for example, remained active for 10 years. It is likely that a number of persons who passed the examination accepted other jobs before they were called by the CFD for further processing. The proportion of African-Americans hired between 1985 and 1990 was higher than the proportion of African — Americans hired in the years 1990 through 1994. This suggests that the longer the list remained active, the fewer African-Americans remained available for hire from the eligible list, either because they were already selected for hire or because they were no longer in the market. To the extent that a hire-based benchmark is used, it should be used only as a low-end estimate of the expected minority representation in the CFD career-service ranks.

Plaintiffs argue that Dr. Suchanek's sustainable hire rate benchmark overstates minority hiring, because it assumes that the African-American application rate historically would be similar to the African-American application rate on the 1985 entrance examination. In 1985, African-Americans comprised over 48 percent of the applicants for the examination even though their representation in the City of Chicago was approximately 35 percent. Because the applicant rate is taken into consideration in calculating the hire ratio for the sustainable hire rate benchmark, plaintiffs argue it is improper. However, the City has persuasively shown that African-Americans would have oversubscribed for the job historically in light of the fact that there was no educational requirement for application and that the corresponding wage and benefit package was very generous.

As noted earlier, in CFFU, Judge Holderman rejected the plaintiffs' challenges to Dr. Suchanek's benchmarks and found that the census-based and sustainable hire benchmarks respectively formed valid high-end and low-end estimates of likely minority representation in the CFD absent discrimination. CFFU, 1999 WL 1289125, at *64. The Seventh Circuit affirmed Judge Holderman's reliance on these benchmarks. In a separate ruling in the present case, this Court has held that by way of the application of the doctrine of issue preclusion, the plaintiffs are barred from relitigating the appropriateness of reliance on census-based measures, except to the extent their challenge to the use of such measures stems from evidence concerning the 1995 firefighter entrance examination and hiring following that examination. Horan v. City of Chicago, No. 98 C 4025 (N.D. Ill. Sept. 26, 2003).

The 1995 examination and its results do not undermine the use of a census-based measure as an upper-end estimate of the minority composition of the CFD absent intentional discrimination. There is no question that the minority percentages derived from census-based benchmarks significantly exceed those derived from pass rate data, whether from the 1985 examination or the 1995 examination. But the basic premise for the use of census-based data as an upper-end estimate of minority representation remains valid There is no way of knowing to a moral certainty what the CFD would have looked like if it had not followed the deplorable discriminatory practices that were used in the past. The best one can do is to attempt a reasonable estimate of the mix of whites and minorities that would have been hired and promoted by a hypothetical race — neutral CFD. The census-based benchmark is not the most conservative measure of this, but in view of data reflecting significant minority group interest in firefighter positions when they were made available in a non-discriminatory environment, it is a fair measure of the high end of minority hiring that would have taken place at the CFD absent its discriminatory past.

Use of the 1995 data likewise does not undermine the reliability of Dr. Suchanek's other analyses. The reasons for this will be addressed in the context of our discussion of the analyses performed by plaintiffs' expert, Dr. Joseph Altonji.

2. Disparities with minority composition of lower ranks

Though not used by Dr. Suchanek in his analysis, the Seventh Circuit has held that the minority representation in the CFD rank of firefighter is an appropriate benchmark for measuring whether the City has eliminated the lingering effects of its discriminatory hiring and promotional practices in the ranks of engineer, lieutenant, captain and battalion chief. CFFU, 249 F.3d at 652; McNamara, 138 F.3d at 1224. By this measure, significant disparities existed during the relevant period as to both African-Americans and Latinos, particularly at the higher ranks of lieutenant, captain, and battalion chief:

Date % firefighters % engineers % lieutenants % captains % battalion chiefs 1997 22.47% Af-Am 18.18% Af-Am 13.80% Af-Am 14.03% Af-Am 8.42% Af-Am 8.72% Latino 5.07% Latino 5.33% Latino 4.98% Latino 2.62% Latino 2000 21.56% Af-Am 20.07% Af-Am 13.80% Af-Am 14.64% Af-Am 12.44% Af-Am 9.62% Latino 5.96% Latino 6.12% Latino 6.28% Latino 3.35% Latino 3. Dr. Altonji's analyses

Dr. Joseph Altonji, plaintiffs' expert labor economist, created several benchmarks for use in determining whether the percentages of minorities in the promotional ranks were consistent with what one would expect if the Fire Department had not engaged in intentional discrimination. Dr. Altonji's "Hire I" benchmark was based on the assumption that both before and after 1974, the Department's hiring ratios would have been the same as those following the 1995 firefighter entrance examination. His "Hire II" benchmark assumed that pre — and post-1974 hiring would have followed the same ratios as those derived from an average of those from the 1978, 1985, and 1995 entrance examinations. His "Hire HI" benchmark assumed that pre-1974 hiring would have followed the ratios from the 1995 examination, that hiring from 1974 through 1995 would have followed the average based on the 1978 and 1985 examinations, and that post-1995 hiring would have followed the 1995 examination hiring experience. Dr. Altonji also created promotion benchmarks to evaluate the lingering effects of historical discrimination. In doing so, he was attempting to estimate what the racial composition in the CFD career-service promotional ranks would have been absent the Department's intentionally discriminatory hire and promotional practices. The latter benchmarks were built on the data derived from Dr. Altonji's various "Hire" benchmarks.

Dr. Altonji's reliance on 1995 hiring data skewed each of his benchmarks. First of all, the 1995 examination was the first time the City imposed a high school graduation requirement in its firefighter application process. By using data from the 1995 examination to calculate his historical labor pool populations, Dr. Altonji effectively assumed that the City would have imposed a high school educational requirement in years prior to 1995. This assumption was unwarranted in light of the evidence that there was no such requirement prior to 1995, and it had the effect of reducing the proportion of minorities used in the analyses.

Second, use of hiring data from the 1995 examination results in a labor pool that is unreasonably and unjustifiably under — representative of minorities. After careful analysis, the City set 65 as the passing score for the 1995 examination; all persons who scored 65 and above were considered to have the necessary cognitive ability to succeed as firefighters. But the City initially did not permit all of those who passed to take the physical abilities test required to qualify for hiring as a firefighter. Rather, the City permitted only those who had scored 89 or above to take the physical abilities test.⁴ This setting of this higher cutoff score was not premised on a belief that those who scored 89 or better would make better firefighters than those who scored below 89; no studies were done to determine whether setting any particular cutoff score would yield a better cohort of firefighters than random selection from among those who had passed the test. Rather, the higher cutoff score was set for reasons of administrative convenience, namely consideration of the length of time that the City anticipated keeping open the eligible list resulting from the 1995 examination and the likely number of job openings during that period In short, the City wanted to limit the number of applicants that it had to test further, and it set a cutoff score to achieve that limit.

4 Because the City gave extra points to military veterans, the 89-or-higher pool also included some persons who scored below 89. Under the collective bargaining agreement with Local No. 2, the City was also obliged to screen paramedics who received a score of 65 or higher.

Setting the higher cut-off score had a severely adverse impact upon minorities. For example, although African-Americans comprised 31.40 percent of the candidates who passed the 1995 entrance examination, only 10.44 percent of those hired from the 89-or-above pool are African-American. This and other similar results led to the filing of a class action suit against the City, based on allegations that both the examination and the City's selection procedure produced an adverse impact on minorities and that neither the examination nor the selection procedure was valid. Lewis v. City of Chicago, No. 98 C 5596 (N.D. Ill.). The case is still pending; no rulings regarding the validity of the examination or the propriety of the hiring process have been made by the judge responsible for the case.

In the present case, the plaintiffs attempted to prove that the 1995 entrance examination was content-valid, and the Court has ruled that the CFFU decision does not preclude them from doing so. Based on the evidence adduced at trial, the Court finds that the 1995 written component of the examination was content-valid in the sense that it measured a significant portion of the cognitive abilities identified by the job analysis as being essential and needed on day one at the Chicago Fire Academy. However, the evidence does not support plaintiffs' contention that the individuals who scored 89 or higher on the written portion of the 1995 examination were better qualified to be Chicago firefighters than those who had lower passing scores. For this reason, the content-validity of the 1995 examination thus does not justify reliance on 1995 hiring data, for the City's selection procedure was not similarly validated.

The correlation between test results and job performance decreases as the test captures fewer of the skills needed to perform the job. Thus, even if there is a linear relationship between performance on the test and some aspects of the job, it is inappropriate to draw inferences regarding the overall qualifications of the candidates based solely on that examination score.

Of the eighteen essential skills, abilities and personal characteristics identified as being needed on a firefighter's first day on the job, eight were physical abilities, three were non-physical, non-cognitive abilities-the "ability to work as part of a team to accomplish a task," the "ability to show compassion for others" and "flexibility to adjust to changing situations and conditions"— and seven were cognitive abilities. The 1995 examination was designed to measure four of these seven cognitive abilities: the "ability to comprehend written information," the "ability to understand oral instruction," the "ability to take notes," and the "ability to learn from demonstration." The test did not measure several other essential cognitive abilities: the "ability to communicate orally," the "ability to learn from repetition," and the "ability to read and interpret written messages." The abilities that the examination measured are not redundant with those that it did not measure. For example, oral communications skills were linked to virtually all major task areas by the CFD's testing consultants. Ability on a written test of cognitive ability does not necessarily correlate with oral communication ability. Moreover, the job analysis for firefighter reflects that there are a number of non — cognitive abilities that are as important to successful performance as the cognitive abilities referenced earlier. These abilities were not measured by the 1995 written examination.

In addition, the evidence did not reflect a correlation between white-minority differentials on the CFD's written tests of cognitive ability and differences in actual performance on the job. Dr. James Outtz, an expert in industrial organizational psychology, test development and training who performed extensive analyses of the CFD's job requirements in developing the 1995 examination, testified that there are no measured differences in job performance between African-Americans and whites in any rank in fire services generally, despite measured differences in performance on cognitive ability tests. Dr. Outtz's testimony is consistent with the observations of many top-level CFD personnel, including former Fire Commissioners Louis Galante and Raymond Orozco, former Deputy Fire Commissioner Donald Stensland and Deputy Fire Commissioner Derrick Jackson, who testified that there were no observed differences in performance among whites, African-Americans and Latinos in the field

Plaintiffs point to the fact that Dr. Outtz recommended that the City use a 13-point sliding band⁵ as evidence that the top scorers on the examination are the best qualified candidates for the job. The Court rejects this argument. At the time Dr. Outtz made this recommendation, he knew the City intended to administer further screening, like the physical abilities test, medical and background screen, to only the limited number of individuals it believed it would need to fill the anticipated vacancies over the expected life of the eligible list from the examination. The band width that Dr. Outtz recommended incorporated the limited number of firefighters that the City had informed Dr. Outtz it would need to process in order to fill the expected vacancies. At the time Dr. Outtz made the recommendation of a 13-point sliding band, he believed that there were many individuals who fell outside that band who would prove to be just as highly qualified for the job of firefighter as individuals who fell within the recommended band Had the City expressed interest in initially screening more individuals, Dr. Outtz would have recommended alternative methods for selecting candidates for further processing, including recommending that the City select at random from the entire qualified pool (i.e. individuals who scored 65 and above).

5 A "13-point band" means that all persons who scored within a 13-point range are considered to have equivalent scores. As discussed earlier, the size of the band is a function of the degree of measurement error regarding the examination. The reference to a "sliding" band means that as promotions are made from within a particular 13-point spread, the range slides downward to pick up candidates within 13-points of the candidate with the score at the top of the band.

Plaintiffs contend that all else being equal, any rational employer would choose those who score higher on tests than those who do not. That might well be the case when cognitive ability is the sole or the primary predictor of job performance, and if relatively small distinctions in written test scores are meaningful. But the evidence in this case does not reflect that relative performance on a test of cognitive skills fairly predicts relative performance as a firefighter. To the contrary, the evidence from hires resulting from the 1978 and 1985 examinations (in which no higher cut-off score was used) showed that on average, all who passed the test-irrespective of their relative scores-performed on the job at a reasonably equivalent level. Among other things, there is no reason to believe that scoring higher on the cognitive abilities test correlates with scoring higher on the physical abilities test. (If one wanted to determine who among the 1995 test-passers was best qualified to serve as a firefighter, one would have to, at a minimum, give the physical abilities test to a significant proportion of those who passed the written test at various levels. But thus far that has not been done.)

For these reasons, Dr. Altonji's use of 1995 data skews his Hire I, II, and III benchmarks, tilting those benchmarks to reflect a lower proportion of minorities than one reasonably would have expected absent discrimination. This in turn skews his other benchmarks used to measure disparities in the promotional ranks, in a way that renders them inappropriate for use by the Court.

The Court also notes that if Dr. Altonji's Hire I Promotion and Hire II Promotion benchmarks were an accurate measure of race discrimination-based disparities in the CFD, then practices conceded to be discriminatory somehow did not result in under-representation of minorities in several promotional positions as of the mid to late 1980's. For example, under Dr. Altonji's Hire I and Promotion benchmark, there were more African-Americans than would be expected absent discrimination in the ranks of engineer and lieutenant by 1980, in the rank of captain by 1978, and in the rank of battalion chief by 1986. And under Dr. Altonji's Hire II and Promotion benchmark, African-Americans are overrepresented by 1987 in the engineer rank, by 1986 in the lieutenant rank, by 1989 in the captain rank and by 2000 in the battalion chief rank. These conclusions are inconsistent with prior findings, and plaintiffs' concession, that the CFD engaged in overt, hostile and effective intentional discrimination in hiring and promotion until the mid-1980s and the fact that the Department did not give its first non-intentionally discriminatory promotional examination in the rank of engineer until 1985, in the rank of lieutenant until 1986, in the rank of captain until 1987 and in the rank of battalion chief in 1989. The fact that Dr. Altonji's hire and promotion benchmarks do not capture these disparities makes his analysis suspect.

4. The Court's determination

Dr. Suchanek's analyses provide an appropriate basis for analyzing whether African-Americans and Latinos remained underrepresented in the CFD promotional ranks; Dr. Altonji's do not. Dr. Suchanek's analyses are consistent with the Seventh Circuit's definition of the appropriate qualified and interested labor pool. As in CFFU, the Court finds that these analyses provide appropriate benchmarks of African-American and Latino representation for the purpose of analyzing whether shortfalls in such representation persisted when the City engaged in the challenged affirmative action promotions, in particular, an upper-end benchmark based on census and applicant data, and a lower — end benchmark based on the "sustainable hire rate" derived from hiring from the 1985 firefighter entrance examination. The actual qualified and interested labor pool falls somewhere between these upper and lower estimates.

Minorities and, in particular African-Americans, continue to be underrepresented in the ranks of engineer, lieutenant, captain and battalion chief when compared to minority representation in the appropriate benchmark labor pool populations. For African-Americans, this underrepresentation is profound and far exceeds two standard deviations at each rank under any plausible benchmark labor pool presented in this case. For Latinos, the upper-end estimate exceeds two standard deviations in all ranks; the lower-end estimate does not. However, a two standard deviation disparity is not the sine qua non of proof that the effects of intentional discrimination linger. With respect to Latinos, the alternate measure previously discussed-significant disparity with Latino representation at lower ranks-is more than sufficient, together with the other evidence, to establish the continued need for corrective action to remedy the City's lengthy history of discrimination.

The CFD has not imposed overt discriminatory barriers to entry for a number of years. Elimination of the lingering effects of the CFD's past intentional discrimination in hiring and promotion has been an ongoing process for quite some time. One might have hoped that by 1997-2000, the Department would have overcome its prior history of discrimination. But the effects of the CFD's longstanding discriminatory practices could not be overcome in short order, at least not without doing significant harm to a large number of candidates who would have been passed over. This is a consequence of the combined impact of several effects, including the CFD's career-service structure and the infrequency of promotional examinations.

Even with affirmative action promotions, the racial composition of a promotional rank cannot change more rapidly than the racial composition of the rank below, which constitutes the pool of personnel eligible to compete for promotion. The sequencing of promotional examinations has a significant impact on how quickly personnel can advance through the promotional ranks and generally has slowed the rate at which minorities have been promoted to captain and battalion chief. For example, it takes approximately 20 to 25 years to be promoted to captain and battalion chief in the CFD. That means that when the City gave the 1995 battalion chief examination, which it used to make promotions to battalion chief until 2000, the majority of personnel eligible to take that examination were hired in 1975 or earlier, a period during which the City was engaged in pervasive discrimination against African-Americans and Latinos. Thus the small number of minorities eligible to take the 1995 battalion chief examination is a direct consequence of the CFD's past discrimination in hiring and promotions.

As positions became available at the different promotional ranks, African-Americans and Latinos were not available for promotion into those positions because of the impact of the CFD's past practices. Thus, white officers filled those positions. Absent increases in the size of the CFD, the representation of minorities in a promotional rank cannot increase more rapidly than the number of white officers who exit that rank because of retirement, promotion, death, or for other reasons. Because CFD personnel remain in the Department, on average, for 30 years, it will take longer for these younger and more recently promoted white personnel to reach the age of retirement. This prolongs the City's efforts to eliminate the effects of the CFD's past discriminatory practices.

In addition, the effects of the CFD's past discrimination continue to linger in part because of the fact that the representation of minorities within a promotional rank will reflect a net increase only if the number of minorities promoted into that rank exceed the number of minorities who exit that rank for the same reasons as whites. The CFD is attempting to diversify all of its promotional ranks at once. For example, as African-Americans and Latinos are being promoted into the rank of lieutenant, African-Americans and Latinos are being promoted out of that rank and into the captain rank. Because of the limited number of available minority candidates, and because the City cannot hire African-Americans and Latinos into the promotional ranks from outside the CFD, its ability to accelerate the process of diversifying the Department's ranks has been retarded.

Another important factor is that historically, minorities required significantly more years to achieve promotion than their white counterparts into all of the promotional ranks. These differences were the consequence of intentional barriers to promotion designed to keep minorities from moving into the upper ranks of the Department that were not eliminated until the late 1980s. As a consequence, African — American officers promoted to captain or battalion chief during the late 1980s and early 1990s were nearer to retirement than the white officers who were promoted contemporaneously. They remained in those positions for shorter periods than their white counterparts before retiring, thus diminishing the percentage of minorities in those ranks. This has impacted the City's ability to make meaningful and lasting changes in the racial composition in the captain and battalion chief ranks.

In sum, African-Americans and Latinos remained underrepresented in each of the promotional ranks at the time of the challenged promotions, when compared with their expected representation had the CFD not engaged in intentional discrimination. The City's remedial efforts have had a limited impact on the overall racial composition of these ranks during the time period at issue in this case. Most of the challenged promotions simply had the effect of accelerating the promotion of minorities who eventually would have been promoted anyway. The net gain in minority composition of the effected ranks consists of the minority officers who would not have been promoted based on their score on the examination given the total number promoted off of those eligible list. This is a significantly smaller number in all ranks than the total number of affirmative action promotions. Net affirmative action promotions have been a small percentage of promotions and have had a modest impact on the racial/ethnic composition in the promotional career-service ranks.

F. Compliance With The Albrecht Consent Decree

The City also contends that it engaged in the challenged promotions in order to comply with the consent decree in United States v. Albrecht, Nos. 73 C 661 80 C 1590 (N.D. Ill.), a suit by the federal government challenging the City's hiring and promotional practices in the CFD. The consent decree established the following long range goal:

1. Long Range Promotional Goal The defendants, as a long rang goal, shall seek to promote black and Hispanic persons in sufficient numbers so as to increase substantially the minority composition in each of the promotional ranks of the City of Chicago Fire Department with the objective that each such rank become more representative of the racial and ethnic composition of the rank or ranks from which promotion to it are made.

In 1985, another judge of this Court, in denying a motion by the United States to vacate the decree, found that the Albrecht decree was lawful. United States v. Albrecht, No. 80 C 1590, 1995 WL 2400 (N.D. Ill. Aug. 23, 1985). If compliance with Albrecht is a lawful justification for affirmative action promotions, the consent decree justified each of the promotions made in this case.

G. Compliance With Title VH

For all of the examinations at issue in this litigation, except the 1991 fire captain examination #39104, the City contends that it made affirmative action promotions to reduce or eliminate adverse impact against minority candidates and thereby avoid possible liability to those candidates under Title VII of the Civil Rights Act of 1964.

Use of top-down or strict rank order selection from the results of each of the CFD promotional examinations at issue in this litigation, except for the 1991 captain examination, would have had a severe adverse impact against African-American and Latino candidates. The Uniform Guidelines on Employee Selection Procedure (1978) address the approach to be followed where evidence of adverse impact exists in a selection system. Section 3B, entitled "Consideration of suitable alternative selection procedures," states:

Where two or more selection procedures are available which serve the legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have a lesser adverse impact. Accordingly, whenever a validity study is called for by these guidelines, the user should include, as part of the validation study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedures which have as little adverse impact as possible, to determine the appropriateness of using or validating them in accord with these guidelines.

As an alternative to straight top-down selection, the testing consultants who developed the promotional examinations at issue in this case recommended that the City adopt a sliding band approach for purposes of making selections for promotions from the results of those examinations. The banding technique is based on the proposition that no testing procedure is perfectly reliable and that small differences in scores do not reflect true differences in performance (roughly the same justification as, for example, giving every student who scores between 80 and 90 on a test a "B"). The Seventh Circuit has found that banding is a universal and unquestioned method of simplifying scoring by eliminating meaningless gradations. CFFU, 249 F.3d at 656.

The non-rank order promotions at issue here reduced the adverse effect of these examinations on minority test takers and on each personnel order. All of the non-rank order promotions were within one or two SED's of non-minority rank order promotions in the same band Scores within this range are statistically indistinguishable and, for practical purposes, can be treated as ties.

H. The City's need for diversity in CFD management ranks

The City justified its affirmative action promotions for the additional reason that they allowed the City to realize greater racial and ethnic diversity in a predominantly non-minority organization. Its primary contention in this regard at trial was that the Department's effectiveness depends on the ability to communicate successfully with and gain the trust and confidence of the community it serves, particularly where there are high concentrations of African-Americans and Latinos. The evidence adduced by the City in support of this contention, however, was sparse, entirely anecdotal, vague, and largely speculative.

The Court does not doubt that having greater racial and ethnic diversity vastly improves the CFD's public image, decreases overt racism within the Department, and reaffirms the Department's commitment to remedying the still-lingering effects of its past intentional discrimination. At trial, however, the City failed to prove that increasing racial and ethnic diversity has any material effect on the effectiveness of the Department's operations in the communities it serves.

I. Compliance With Appendix G of the Collective Bargaining Agreement

The City also justified its affirmative action policies under Appendix G of the collective bargaining agreement ("the CBA") between the City and Local No. 2. Under Appendix G, Section 3. A of the CBA, "[t]he parties agree that the transfer and promotion policies of the Fire Department shall have, as a goal, the inclusion of Black and Hispanic personnel in all categories and all ranks in order to reach as quickly as is reasonably possible a level as close to 45% as is reasonably achievable." See generally CFFU, 1999 WL 1289125 at *62-63. Appendix G has appeared in every CBA since 1980. If this is a proper legal basis for affirmative action promotions, it justified each of the promotions at issue in this case.

J. Narrow Tailoring

Under the City of Chicago Personnel Rules, only individuals holding the career-service rank of firefighter are eligible to compete for promotion to the rank of engineer; only individuals holding the career-service rank of firefighter or engineer are eligible to compete for promotion to the rank of lieutenant; only individuals holding the career-service rank of lieutenant are eligible to compete for promotion to the rank of captain; and only individuals holding the career-service rank of captain are eligible to compete for promotion to the rank of battalion chief.

The collective bargaining agreements between the City and Local No. 2, as construed by labor arbitrators, provide that non-rank order promotions are the only available method for affirmative action promotions to any CFD career-service rank. The City cannot recruit minorities or other uniformed personnel from other fire departments into its promotional ranks. The City also cannot offer early retirement pension benefits to fire personnel. Public employee pensions are regulated by state statute and can be changed only by legislation at the state level.

In short, the challenged affirmative action promotions were the only means available to the City to accelerate the progress of minorities through the promotional ranks of the Department.

A delayed or denied promotion has a significant adverse effect on the person passed over. However, the overall effect of the City's affirmative action policies on non-minorities was limited. The vast majority of those promoted to the ranks of engineer, lieutenant, captain and battalion chief in the personnel orders at issue in this case were white. The challenged promotions may have delayed the promotions of plaintiffs who were otherwise eligible for promotion, but they did not bar them outright. In some instances, candidates passed over in a particular promotion order received a promotion in the next or a subsequent promotion order. In addition, the CB As in effect during the period at issue in this case provided that all candidates who would have been promoted if promotions had been made in rank order but were passed over due to the City's affirmative action program are placed at the top of the new eligible list in rank order as they appeared on the previous list, and must be promoted from the new list as budgeted vacancies occur. CBA Article IX, § 9.3.B.2. This provision, known as "the wrap — around agreement," served to diminish the adverse effect of the City's affirmative action policies on whites by ensuring that every candidate passed over for promotion as a result of the City's affirmative action policies ultimately would receive a promotion, albeit a delayed promotion.

Most of the affirmative action promotions at issue had the effect of merely accelerating the promotion of minorities from the eligible lists in question. All of the minority uniformed personnel promoted pursuant to the CFD's affirmative action policies were qualified for promotion. Since 1985, the CFD has become more productive and efficient. Affirmative action promotions have not adversely affected the Department's operations.

Due to the City's banding approach, minorities receiving affirmative action promotions had scores that were statistically indistinguishable from those non-minorities who would have been promoted in rank order. In CFFU, Judge Holderman held that promotions from a two SED band from the eligible lists based on the 1993 lieutenant and 1994 engineer examinations were narrowly tailored to meet the City's compelling government interest in eliminating the lingering effects of past discrimination. CFFU, 1999 WL 1289125, at *80-85. This Court agrees with that determination as applied to the promotions at issue in this case.

The City applied a restrictive method of banding. Rather than sliding the band downward every time the highest ranking person was selected from the eligible list, the City slid the band after each personnel order. This approach served to further restrict the number of minorities available for promotion. If there were not enough minority candidates in the band to meet the City's affirmative action goals, the City did not go outside the band to achieve those goals. If there were more minority candidates in the band than necessary to meet the City's goal of promoting 20% over the African-American and Latino composition of the rank below, the City did not promote additional minorities even though their scores on the examination were statistically indistinguishable from the scores of the candidates within the band who received a promotion.

Conclusions of law

The City took race into account in making the challenged promotions. This is so, not because the City did not promote in strict rank order based test scores — no constitutional principles requires a government employer to prefer a candidate whose test scores do not reliably differ from those who scored just below him-but because, among candidates whose scores did not reliably differ, the City preferred some persons due to their status as members of racial or ethnic minority groups. To satisfy the Equal Protection Clause, a racial classification, including one made in the context of a program of affirmative action, "must serve a compelling governmental interest, and must be narrowly tailored to further that interest." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). This "strict scrutiny" is not "`strict in theory, but fatal in fact.'. . . When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the `narrow tailoring' test [the Supreme] Court has set out in previous cases." Id. at 237 (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in the judgment).

1. Remedying past discrimination

A governmental agency "has a compelling interest in remedying its previous discrimination and . . . may use racial preferencing to rectify that past conduct." Majeske v. City of Chicago, 219 F.3d 816, 820 (7th Cir. 2000); McNamara, 138 F.3d at 1221. This must be based on real evidence, not conjecture. Majeske, 218 F.3d at 820. The City was required to show that before taking the challenged promotions, it had "a strong basis in the evidence," Wygant v. Jackson Board of Education, 476 U.S. 267, 277 (1986) (plurality opinion), of the compelling governmental interest in remedying the CFD's past intentional discrimination, including establishing that the effects of this past discrimination continued to persist within the CFD's promotional ranks at the time of the promotions at issue. In addition, the City had to show that its method of remedying the lingering effects of the past intentional discrimination was narrowly tailored to minimize the adverse effects on non-minorities consistent with effective remediation. Adarand, 515 U.S. at 237; McNamara, 138 F.3d at 222. Plaintiffs, however, bear the ultimate burden of proving that the City's plan was unconstitutional. Majeske, 218 F.3d at 820. The City has made the necessary showing, and for the reasons discussed above, plaintiffs have failed to sustain whatever burden of proof they bear in a case like this one.

Evidence of statistically significant, persistent disparities between the racial composition of an employer's work force and the qualified and interested labor pool may be sufficient evidence of past discrimination, at least together with other evidence, to support race-conscious remedial action. Wygant, 476 U.S. at 277; City of Richmond v. A. Croson Co., 488 U.S. 469, 501-02 (1989) (plurality opinion); Hazelwood School District v. United States, 433 U.S. 299, 307-08. See also, e.g., Aiken v. City of Memphis, 37 F.3d 1155, 1163 (6th Cir. 1994); Peightal v. Metropolitan Bade County, 26 F.3d 1545, 1553-57 (11th Cir. 1994); Stuart v. Roache, 951 F.2d 446, 450-52 (1st Cir. 1991 ); Associated General Contractors of California, Inc. v. Coalition for Economic Equity, 950 F.2d 1401, 1414-15 (9th Cir. 1991); Donaghy v. City of Omaha, 933 F.3d 1448, 1459-60 (8th Cir. 1991).

In this case, the anecdotal evidence of the CFD's lengthy history of discrimination, combined with the statistical evidence discussed earlier, was more than sufficient to show that the CFD systematically discriminated against minorities at the entry and promotional levels, and that this caused a significant underrepresentation of African — Americans and Latinos at all of the CFD's promotional ranks at the time of the challenged promotions. See generally CFFU, 249 F.3d at 640 (representation in CFD ranks was "far below the minority percentage of the City's population" and was "lower than the minority percentages in the lowest rank"); McNamara, 138 F.3d at 1223, 1224 ("The result of the affirmative action plan was to boost the minority proportion of captains to 14.4 percent, which is still far below the minority proportion of the city's population and of the lowest rank in the fire department"). Race-conscious promotions are an appropriate remedy where "[d]iscrimination at the entry level necessarily precluded [minorities] from competing for promotions, and resulted in a departmental hierarchy dominated exclusively by non-minorities." United States v. Paradise, 480 U.S. 149, 168 (1987) (plurality opinion); id. at 189-95 (Stevens, J., concurring in the judgment).

The Court concludes that the City continued to have a compelling government interest in eliminating the lingering effects of its past intentionally discriminatory practices against African-Americans and Latinos at each of the promotional ranks at the time it made the affirmative action promotions challenged in this case.

2. Compliance with Title VII

Under the EEOC Guidelines interpreting Title VII of the Civil Rights Act of 1964, a prima facie disparate impact violation of the statute may be shown when an employment practice has a selection or success rate for minority candidates that is less than 80 percent of the selection rate for non-minority candidates. See 29 C.F.R. § 1607, 4(D); Billish v. City of Chicago, 989 F.2d 890, 895 (7th Cir. 1993) (en bane). In this case, the results of six of the seven promotional examinations (all but the 1991 captain examination) fell short of the 80 percent threshold. When this happens, the employer may avoid Title VII liability either by showing that its examination accurately measured the candidates skills and there were no equally valid alternative selection procedures available that would have had less adverse impact on minorities, or by taking steps narrowly tailored to remedy the examination's racially disparate results. See Davis v. City and County of San Francisco, 890 F.2d 1438, 1443-44 (9th Cir. 1989).

In this case, the City could not validate the promotional examinations, because it could not show that small differences in scores accurately differentiated the candidates for promotion. See Guardians Association of New York City Police Department, Inc. v. Civil Service Commission, 630 F.2d 79, 100 (2d Cir. 1980); 29 C.F.R. § 1607.6. Nor could it prevail on the question of top-down ranking of scores, as banding is considered an equally valid alternative procedure with less adverse impact, and thus the City was required to adopt banding under Title VII to minimize the adverse impact of the examinations. 29 C.F.R. § 1607.38. Cf. Brown v. City of Chicago, 8 F. Supp.2d 1095, 1098, 1111-13 (N.D. Ill. 1998), aff'd, sub nom. Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir. 2000). The Court acknowledges plaintiffs' argument that "a racial classification cannot withstand strict scrutiny based upon speculation," Shaw v. Hunt, 517 U.S. 899, 908 n. 5 (1996), but in this case the likelihood of a Title VII violation was anything but speculative. Compliance with a federal civil rights statute may, in appropriate circumstances, constitute a compelling governmental interest. See, e.g., Abrams v. Johnson, 521 U.S. 74, 91 (1997); King v. State Board of Elections, 979 F. Supp. 619, 622 (N.D. Ill. 1997) (three-judge panel) ("remedying a potential violation of or achieving compliance with [the Voting Rights Act] is a compelling state interest"), aff'd, 522 U.S. 1087(1998).

3. The City's other justifications

The Seventh Circuit has previously rejected the City's contentions that the Albrecht consent decree justified race — conscious promotions. Billish, 989 F.2d at 893-94. The Court likewise sees no authority for the proposition that compliance with a collective bargaining agreement may constitute a compelling state interest.

Finally, the City contends that its actions were justified by its interest in promoting diversity within the promotional ranks of the CFD. The Court need not address the difficult legal issues posed by this argument, however, for as discussed above, the City's evidence was insufficient to support such a contention even if it were shown to be a legally valid justification for race-conscious action.

4. Narrow tailoring

As noted earlier, a race-conscious remedy must be narrowly tailored to minimize the adverse effects on non-minorities consistent with effective remediation. Adarand, 515 U.S. at 237; McNamara, 138 F.3d at 222. To evaluate this, a court must examine the necessity for the relief and the efficacy of alternative remedies, the flexibility and duration of the relief, the relationship of the numerical goals to the relevant labor market, and the impact of the relief on third parties. Paradise, 480 U.S. at 171; Stuart, 951 F.2d at 453-55; Donaghy, 933 F.2d at 1460-61.

The need for the relief and its relationship to the relevant labor market are shown by the statistical and other evidence discussed earlier. If the City had made rank order promotions from the eligibility lists produced by the promotional examinations at issue, it would have failed to make meaningful progress toward remedying the racial disparities caused by the CFD's history of discrimination. As noted above, due to the collective bargaining agreement and the effects of state law, non — rank order promotions were the only mechanism available to the City as a remedial step. Departure from rank order promotion was therefore permitted. CFFU, 249 F.3d at 652; McNamara, 138 F.3d at 1224; Peightal, 26 F.3d at 1557-58.

The remedy was narrowly tailored in that all of the non — rank order promotions involved candidates whose examination scores were not meaningfully distinguishable from those of the other candidates promoted at the same time and those of the candidates who were passed over. These individuals were fully qualified for promotion, "an important indicium of narrow tailoring." Mackin v. City of Boston, 969 F.2d 1273, 1277-78 (1st Cir. 1992); see also, Officers for Justice v. Civil Service Commission, 979 F.2d 721, 727-28 (9th Cir. 1992).

The remedial action taken by the City had a significant degree of flexibility that minimized its adverse effect on third parties, namely the candidates who were passed over to make the challenged promotions. By virtue of the "wrap-around" agreement, promotions to the passed-over candidates were not denied, rather they were delayed Though the Court does not minimize the impact delay has on a firefighter and his family, "`[d]enial of a future employment opportunity is not as intrusive as loss of an existing job' and plainly postponement imposes a lesser burden still." Paradise, 480 U.S. at 183 (quoting Wygant, 476 U.S. at 282-83)).

Finally, though the City's remedial program has lasted for a much longer period that one would have hoped, as discussed earlier this is a function of structural factors which cannot practically be overcome, as well as the restrictions imposed by the collective bargaining agreement with Local No. 2.

In sum, the City has met of burden of showing that its remedial program was narrowly tailored

Conclusion

Because the City has sustained its burden, and the plaintiffs have failed to sustain theirs, the Court directs the Clerk to enter judgment in favor of defendant City of Chicago.