Opinion
No. 99 CV 7864.
August 29, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Lisa Price ("Price") filed this action against her employer defendant City of Chicago ("City") claiming the City's use of continuous service date and date of birth to break ties for promotions among police officers with the same score violates Title VII, 42 U.S.C. § 2000e-2(k), because it has a disparate impact on African-Americans. Price also argues that the use of a date of birth as a tie-breaker has no rational basis and thus violates here rights under the equal protection clause. Finally, Price argues the City has violated Illinois law because it's Personnel Rules do not expressly authorize the use of date of birth as a tie-breaker. Price claims she is entitled to a retroactive promotion and approximately a year of back pay, she has since been promoted from police officer to sergeant effective May 25, 2000. The City has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant City's motion for summary judgment is GRANTED.
STATEMENT OF FACTS
The following statement of facts comes from the City's Local Rule 56.1(a) statement of material facts and accompanying exhibits. Price failed to file a timely response to the statement of facts or even a memorandum in response to the motion for summary judgment on August 25, 2000, the date set by the court on June 6, 2000, with the agreement of counsel, for Price to file her response. The court stated in that June 6, 2000 Order that "[n]o further extensions will be allowed." On August 14, 2000, Price, through her counsel, noticed a motion for extension of time to file her response for presentment on September 7, 2000. The court denied Price's motion for an extension of time to file the response on August 21, 2000.
Plaintiff Price is an African-American sergeant of police in the Chicago Police Department ("CPD"), which is an administrative department of the City. Price participated in the City's 1998 sergeant selection process. The 1998 Sergeant Examination ("Examination") had two time-inservice requirements: (1) officers who had completed their probationary period and served as a career service officer for two years on or before January 10, 1998 were eligible to take the Examination; and (2) no officer would be promoted unless he or she had served a minimum of five years as a career service police officer with the City. The Examination consisted of three components — a Written Qualifying Test, an Assessment Exercise, and a Merit Selection Process. The City adopted two eligible lists from the Examination process, the Merit Selection Eligible List and the Assessment Eligible List. Less than 20 percent of all promotions from the Examination were made from the Merit Selection Eligible List. The remainder of the promotions were made from the Assessment Eligible List.
The Written Qualifying Test was scored on a pass-fail basis. The passing score was 147 out of a possible 213 points. Officers who passed the Written Qualifying Test were eligible to take the Assessment Exercise component and were eligible for consideration in the Merit Selection process. The Assessment Exercise component was scored as a rank order examination. In order to adopt the Assessment Eligible List, the Department of Personnel for the City used Assessment Exercise scores and the tie-breaking methodology. Tied scores on the Assessment Exercise were broken down in the following manner: (1) tied scores were broken using each officer's continuous service date, earliest to latest; and (2) officers with the same score and continuous service date were given the same rank. Where two or more officers had the same score and continuous service date, the officers were given the same rank on the Assessment Eligible List but were processed in order of birth date, oldest to youngest.
Price passed the Written Qualifying Test with a score of 164. Price took the Assessment Exercise component and received a score of 177 out of a possible 245 points. A total of 38 officers received a score of 177 on the Assessment Exercise. After breaking down the scores based on all the criteria, Price ranked as 365 the Assessment Eligible List. On August 9, 1998, pursuant to CPD C.O.S. Message 98-002397, the CPD promoted 251 officers to rank of sergeant, 178 from the Assessment Eligible List and 73 from the Merit Selection Eligible List. This was the first promotion order issued as a result of the Examination. Price does not challenge any of the first sergeant promotions, nor does she claim she should have been promoted to sergeant on that date. Price does challenge the second round of sergeant promotions in mid-1999.
In anticipation of the second round of sergeant promotions to be made on June 20. 1999, the CPD needed to determine the number of officers to be detailed to the Training Academy for three weeks of training beginning in May 1999. The CPD considered the number of unfilled sergeant positions, the operational needs of the CPD at the rank of sergeant, the effect of promotions to the rank of sergeant on the rank of police officer and the effect of future promotions to the ranks of lieutenant and watch commander on the sergeant rank, The final decision on the number of officers to be detailed for sergeant training was made by the Superintendent of Police ("Superintendent") with consultation of his staff. The Superintendent did not consider the identity of the officers on the Assessment Eligible List prior to determining the number of officers to be sent for training. The Superintendent also did not consider whether it would be necessary to break ties by continuous service date or date of birth in order to identify the designated number of officers to be detailed for sergeant training.
Ultimately, the Superintendent determined that 156 officers would be sent for sergeant training in May of 1999. of this group, 111 would be selected from the Assessment Eligible List and 45 would be selected from the Merit Selection Eligible List. At the time the Superintendent made the decision, no one in the CPD was aware that by selecting 111 officers based on rank on the Assessment Eligible List would require a tie be broken between Price and Ward. The Deputy Superintendent of the Bureau of Administrative Affairs forwarded the number of officers to be sent for training to the Commander of the Personnel Section of the CPD. In turn, the Commander sent that number to Sergeant Ray Gawne ("Gawne") in the Personnel Section.
Gawne's task was to identify the individual officers who would be promoted and sent for training at the academy. Gawne reviewed the Assessment Eligible List in top-down order, beginning with the highest ranking officer remaining on the list after the first set of promotions. In reviewing the list, Gawne excluded officers who did not meet certain requirements, including education and years of service as a career service police officer. Thus, Gawne conducted an individualized review of the CPD's records for each officer on the Assessment Eligible list until 111 officers were identified.
After identifying Michael Ward ("Ward") as the 111th officer from the Assessment Eligible List to be selected in the second round of sergeant promotions, Gawne recognized that Price also had the same rank on the list as Ward. Price and Ward had the same score of 177, the same seniority, but different birth dates. Ward was born on June 26, 1964 and Price was born on November 26, 1966. Gawne elected to break the tie by using a long-standing practice in the CPD of breaking ties in continuous service dates on the basis of date of birth, with the preference going to the older officer, Ward.
In this context, date of birth is a factor used to determine seniority in all ranks that are permitted to select furloughs, watches, and units of assignment. This practice of breaking ties has been incorporated in the collective bargaining agreement ("CBA") between the City and Lodge No. 7 of the Fraternal Order of Police ("the FOP") for many years. In all cases, the preference is given first to the officer with the earlier continuous service date and then, among officers with the same continuous service date, to officers by date of birth, oldest to youngest. The FOP CBA, however, does not govern the procedures for promotions to the rank of sergeant, a position that is not represented by the FOP. Yet, Gawne understood that the use of date of birth to break ties between officers with the same continuous service date was a widely accepted and understood practice among police officers,
So, Gawne used date of birth to break the tie between Ward and Price on the Assessment Eligible List. Because Ward was born two years before Price, Ward was selected to receive the promotion. Gawne then provided the list of 111 officers from the Assessment Eligible List to the Commander of the Personnel Section. On May 19, 1999, and order was issued bearing the names of officers who would be promoted and instructing them to report to the academy for sergeant training on May 24, 1999.
On June 20, 1999, pursuant to CPD C.O.S. Message 991785, the CPD promoted 152 officers to the rank of sergeant, 107 from the Assessment Eligible List and 45 from the Merit Selection Eligible List. Four officers waived promotion to sergeant sometime after the reporting for training at the academy. The CPD decided not to replace those officers with other officers. Price now claims that she should have been promoted on June 20, 1999 from the Assessment Eligible List. Price was ultimately promoted from police officer to sergeant on May 25, 2000.
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. CIV. P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. CT. 2505, 2513 (1996). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. CT. 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S. CT. at 2511.
ANALYSIS
I. Disparate Impact Claim
In her complaint, Price argues that the City violated Title VII because the City's practice of using the continuous service date and birth dates as tie-breakers for promotions has a discriminatory impact on African-Americans. To establish a prima facie case under a disparate impact theory, a plaintiff must: (1) identify the employment practice giving rise to the statistical disparity; and (2) demonstrate causation by offering "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotion because of their membership in a protected group."Watson v. Fort Worth Bank Trust, 487 U.S. 977, 994, 108 S. CT. 2777, 2789 (1988); see also Vitug v. Multistate Tax Commission, 88 F.3d 506. 513 (7th Cir. 1996). If a plaintiff establishes the prima facie case, the burden then shifts to the defendant to prove that the "methods responsible for the disparity are necessary to the efficient conduct of [its) business." Taylor v. Sheriff of Cook County, 167 F.3d 1155, 1156 (7th Cir. 1999) (citing 42 U.S.C. § 2000e2(k)(1)(A)(i)).
In this case, the City's challenged policy of using continuous service date and date of birth to break ties for promotions among officers with the same score is facially neutral. Price has not, however, offered any statistical evidence that African-Americans are disproportionately impacted because of the City's facially neutral policy. Instead, the City has presented sufficient statistical evidence that shows that the challenged policy does not have a disproportionately adverse impact on African-Americans. of the thirty-three officers who scored a 177 on the Assessment Exercise and were eligible for promotion, twenty-four were white, six were African-American, and 3 were Hispanic. of those thirty-three officers eligible, twenty-two were actually promoted — sixteen white, three African-American, and three Hispanics. If the promotions were made a random, without reference to the policy of continuous service or birth dates, of the twenty-two, one would expect to find sixteen white, four African-American, and two Hispanic. Using the challenged policy, sixteen white, three African-American, and three Hispanic were selected. Thus, the difference between the expected selections and actual selections, stated as a standard deviation for African-Americans was -0.0943. Such an insignificant statistical difference is not actionable under Title VII. Watson, 487 U.S. at 994, 108 S. CT. at 2789; see also Morgan v. Harris Trust Sav. Bank of Chicago, 867 F.2d 1023, 1028 (7th Cir. 1989).
In anticipation of Price's response, the City also argues that the City did not breach the "80%" or "4/5ths Rule" ("Rule") found in the Uniform Guidelines on Employee Selection Procedures. See 29 C.F.R. § 1607.4 as the sample size is too small. This court agrees. First of all, as recognized by the Supreme Court, the Rule is not the law — it is a guideline or rule of thumb used by the EEOC in considering selection procedures. See Watson, 487 U.S. 977 at 995 n. 3. Second, the Guidelines caution against the use of the Rule when the selection rate is based on a small sample size. Therefore, the use of the Rule here is suspect as the sample size of 22 is quite small. Moreover, the use of the Rule is suspect given the other statistical evidence shows the disparity is not substantial or significant enough to show a discriminatory impact.
Consequently, the City has presented sufficient evidence to show that the policy in question has not caused the exclusion of applicants for promotions because of their membership in a protected class. Watson, 487 U.S. at 994, 108 S. CT. at 2789; Vitug, 88 F.3d at 513. Therefore, absent evidence that African-Americans are significantly or substantially discriminatorily impacted because of the challenged practice, Price's claim fails as a matter of law. Price's disparate impact claim is dismissed with prejudice.
II. Violation of Equal Protection Rights
In her complaint, Price also alleges that the methodology used by the City to determine which of the officers would be promoted is arbitrary, capricious, and not job-related. Therefore, Price claims the City violated her equal protection rights under the Fifth Amendment's Equal Protection Clause of the Fourteenth Amendment because the methodology lacks any rational basis connected to a legitimate government interest. A challenged government action which does not implicate a fundamental right or suspect classification is subject to a rational basis review. Turner v. Glickman, 207 F.3d 419, 424 (7th Cir. 2000). Applying the rational basis standard, a court should uphold the challenged classification if "there is a rational relationship between the disparity of treatment and some legitimate government purpose." Turner, 207 F.3d at 424 (citingHeller v. Doe, 509 U.S. 312, 320, 113 S. CT. 2637, 2642 (1993)). Courts should also presume that the challenged action is constitutional, placing the burden on the plaintiff to show the action is arbitrary and capricious. Turner, 207 F.3d at 424; Wroblewski v. City of Washburn, 965 F.2d 452, 458 (7th Cir. 1992) (citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. CT. 2513, 2516-17 (1976)).
The City presents two rational basis for the use of birth dates as a tie-breaker when choosing the promotional candidates, namely the policy serves to avoid liability under age discrimination laws, including the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. and the CPD has used this long-standing practice for years and is incorporated in several collective bargaining agreements. Price must now negate every stated basis "whether or not the basis has a foundation in the record."Heller, 509 U.S. at 320-21, 113 S. CT. at 2643 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S. CT. 1001, 1006 (1973)). Price has failed to come forward with any evidence to negate the stated rational bases by the City for implementing the challenged policy. Therefore, summary judgment is warranted in the City's favor. Price's equal protection claim is dismissed with prejudice.
III. State Law Claim
In her complaint, Price also asserts that the City violated state law by using birth dates to break ties for promotions. This court, having granted the City's motion for summary judgment on the Title VII claim and the § 1983 claim which provided this court with jurisdiction, declines jurisdiction over Price's remaining state law claim. 28 U.S.C. § 1367(c)(3); Hager v. City of West Peoria, 84 F.3d 865, 874 n. 7 (7th Cir. 1996). Without addressing the merits of Price's state law claim, this court dismisses the state law claim in Price's complaint.
CONCLUSION
For the above stated reasons, defendant City of Chicago's motion for summary judgment is GRANTED. Plaintiff Price's claim under Title VII and § 1983 are dismissed with prejudice. Plaintiff Price's state law claim is dismissed without prejudice. This court dismisses plaintiff Price's complaint. This case is dismissed in its entirety. All other pending motions are moot.