Biondo, Peter v. City of Chicago ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-2707, 02-3099 & 03-1921
PETER BIONDO, et al.,
Plaintiffs-Appellees,
v.
CITY OF CHICAGO, ILLINOIS,
Defendant-Appellant.
____________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 88 C 3773—James F. Holderman, Judge.
____________
ARGUED APRIL 2, 2004—DECIDED AUGUST 27, 2004
____________
Before EASTERBROOK, MANION, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. Chicago’s Fire Department
has five ranks: firefighter, engineer, lieutenant, captain,
and battalion chief. Promotions depend on competitive
examinations. Chicago developed the 1986 exam for lieu-
tenant (a position open to firefighters and engineers) with
care to ensure that it was both non-discriminatory and a
valid test of skills. Yet although 29% of those who took the
exam were either black or Hispanic, only 12% of those who
received the highest 300 scores were in these groups. The
Department concluded that this disparate impact could be
2 Nos. 02-2707, 02-3099 & 03-1921
justified, under the EEOC’s Uniform Guidelines on Em-
ployee Selection Procedures, 29 C.F.R. §1607.4, only if the
exam were valid for rank-order use—that is, if someone who
scores higher on the test is bound to perform better than the
person next in line. According to the Department’s expert,
this examination had a standard error of measurement of 3.5,
which is to say that a person who scored 80 and took a similar
test again could score as high as 83.5 or as low as 76.5
without implying that his skills and probability of success
in the higher position had changed. Convinced that it could
not make promotions from the 1986 list in rank- order
fashion, the Department established what it called “stan-
dardized” lists and what most people would call racially
segregated lists: it drew up one list for whites and another
for blacks and Hispanics, and then made 29% of all promo-
tions from the minorities-only list. The Department used
these lists until 1991, promoting a total of 209 lieutenants
from the 1986 exam.
This process meant that the promotion of some white can-
didates was delayed, and others were not promoted even
though minority candidates with lower scores became lieu-
tenants. Some of the disappointed applicants filed suit under
42 U.S.C. §1983 and Title VII of the Civil Rights Act of 1964.
The Department acknowledged that its approach can be
sustained only if a compelling interest supports its use of
race and ethnicity. See, e.g., Adarand Constructors, Inc. v.
Peña, 515 U.S. 200 (1995). It did not argue that either past
discrimination or a quest for diversity supports its approach.
Cf. Grutter v. Bollinger, 539 U.S. 306 (2003); Petit v. Chicago,
352 F.3d 1111 (7th Cir. 2003). Chicago instead maintains
that it had a compelling need to comply with federal regu-
lations that frown on using tests to make promotions in
strict sequence. The district court bifurcated liability from
damages and conducted a trial before an advisory jury,
which concluded that the Department violated both §1983
and Title VII. In open court the district judge agreed with
Nos. 02-2707, 02-3099 & 03-1921 3
this conclusion. Two later jury trials (limited to 19 of the
plaintiffs) led to substantial awards of compensatory dam-
ages plus equitable relief such as front pay. Biondo v. Chicago,
2002 U.S. Dist. LEXIS 3463 (N.D. Ill. Feb. 28, 2002); Cloud v.
Chicago, 2002 U.S. Dist. LEXIS 9817 (N.D. Ill. May 30, 2002).
According to the Department, the jury’s (and thus the
judge’s) finding that the 1986 exam was valid is clearly er-
roneous, see Pullman-Standard v. Swint, 456 U.S. 273 (1982),
even though the trier of fact credited plaintiffs’ statistical ex-
pert, who supported the exam’s validity. Bryant v. Chicago,
200 F.3d 1092 (7th Cir. 2000), sustains rank-order use of a
similar exam, making it hard to see how the outcome of this
trial could be deemed clearly erroneous. The Department
acknowledges that the evidence taken in the light most
favorable to the verdict shows the exam’s overall validity as a
test of skills but maintains that it does not demonstrate the
propriety of making promotions in sequence, given the stand-
ard error of measurement. Even if the plaintiffs’ expert un-
dermined the conclusion that the standard error of mea-
surement is 3.5, the Department insists, the record does not
show that the standard error is zero, and without such a
finding (which would be impossible, as no exam predicts
perfectly) the exam could not have been used to make pro-
motions in rank-order sequence, given the disparate impact
that would have ensued.
Let us suppose that the City has the better of the sta-
tistical argument on this record (perhaps the one compiled
in Bryant did more to show the exam’s validity). We shall
suppose further that the EEOC’s regulations tell employers
not to hire or promote in strict sequence when that would
cause minority groups to succeed less than 80% as often as
whites. But see Paul Meier, Jerome Sacks & Sandy L.
Zabell, What Happened in Hazelwood: Statistics, Employment
Discrimination, and the 80% Rule, 1984 Am. Bar Foundation
Research J. 139, 158-70. Still, the premise of the City’s ar-
gument is that regulations supply a compelling governmental
4 Nos. 02-2707, 02-3099 & 03-1921
interest in making decisions based on race. How can that
be? Then Congress or any federal agency could direct em-
ployers to adopt racial quotas, and the direction would be
self-justifying: the need to comply with the law (or regulation)
would be the compelling interest. Such a circular process
would drain the equal protection clause of meaning. Deci-
sions such as Adarand Constructors show that compliance
with federal laws cannot automatically be a compelling
interest; Adarand Constructors held a federal statute uncon-
stitutional precisely because it required public officials to
make use of race, and the statute was not itself supported
by a compelling governmental interest. Chicago does not
contend that 29 C.F.R. §1607.4 carries out any compelling
governmental interest, and given the holding of Washington v.
Davis, 426 U.S. 229 (1976), that disparate impact in hiring
or promotion by a public employer does not violate the equal
protection clause, it is hard to see how such an argument
could be constructed. If avoiding disparate impact were a
compelling governmental interest, then racial quotas in
public employment would be the norm, and as a practical
matter Washington v. Davis would be undone. Congress did
not attempt this; to the contrary, it provided in 42 U.S.C.
§2000e-2(j) that an employer’s desire to mitigate or avoid
disparate impact does not justify preferential treatment for
any group.
The Civil Rights Act of 1991 explicitly forbids the dual-
list response to disparate impact. 42 U.S.C. §2000e-2(l).
(That section also forbids differential validation, under which
scores predicting an equal probability of success on the job
lead to an equal probability of favorable decision even though
this may mean that minorities are promoted with scores
lower than those of white applicants. See Albemarle Paper
Co. v. Moody, 422 U.S. 405 (1975) (approving use of differ-
ential validation under statutes then in force). The City did
not attempt differential validation before resorting to
standardization.) The 1991 Act does not apply retroactively,
Nos. 02-2707, 02-3099 & 03-1921 5
see Landgraf v. USI Film Products, 511 U.S. 244 (1994),
but new §2000e-2(l) and old §2002-2(j) jointly reveal that
standardization cannot be an indispensable response to dis-
parate impact. Public employers have other options. One
will suffice here. Instead of making rank-order promotions,
Chicago could have created bands reflecting the standard
error of measurement. For example, the Department could
have treated all scores in the range 96-100 as functionally
identical and made promotions by lot from that band; when
all test-takers with those scores had been promoted, the
Department could have pooled scores in the range 91-95
and promoted randomly from that group, and so on. That
procedure would have respected the limits of the exam’s ac-
curacy while avoiding any resort to race or ethnicity. Given
options of this kind, the City’s two-list procedure cannot be
thought compelled. Indeed, it is hard to credit the
Department’s assertion that it viewed rank-order promotions
as unsupportable when that is how it actually used the exam.
After creating racially segregated lists, the Department pro-
moted in rank-order sequence from each list!
No more need be said about the merits. Remedies are more
problematic. Each of the two juries was asked six questions:
what was the likelihood that, but for the discrimination,
each firefighter would have been promoted to captain and
then battalion chief (and when each position would have been
achieved); what damages represented loss of pay until the
trial; and what damages were appropriate for emotional
distress. The district judge then ordered the Department to
make retroactive the positions of those plaintiffs who had
achieved one or more promotions since 1986, and he granted
front pay to those who (the jury found) would have been
promoted further. The judge also ordered the City to pay
prejudgment interest. This table shows most of the results:
Proba- Date of Promo- Probability of Date of Promo- Back Damages for Years
bility of tion to Captain Promotion to tion to Battal- Pay Emotional Dis- of
Promo- Battalion Chief ion Chief tress Front
tion to Pay
Captain
Peter Biondo 100% 08/16/93 100% 04/16/00 112,000 125,000 12
John Byrne 100% 08/16/93 100% 04/16/93 96,000 125,000 12
Richard Cloud 100% 07/01/96 100% 02/16/02 99,159 182,000 12
Timothy Corcoran 100% 08/16/93 28% -- 167,000 125,000 12
Michael Gacki 0% -- 0% -- 5,992 94,100 0
Clifford Gartner 100% 07/01/96 51% 02/16/02 126,794 177,000 12
Brian Gilhooly 100% 08/16/93 100% 12/01/00 156,000 125,000 12
George Healy 100% 08/01/95 0% -- 92,053 130,000 12
Patrick Joyce 100% 08/16/93 57% 12/01/00 165,000 125,000 12
Steven Kolecki 100% 01/01/96 49% 02/16/02 55,513 104,000 12
Thomas Maliska 100% 11/16/00 14% -- 115,000 125,000 12
Bernard McDevitt 100% 11/16/00 0% -- 125,000 125,000 0
David McElroy 100% 08/16/93 86% 04/16/00 173,000 125,000 0
Michael Oliver 90% 08/16/93 100% 02/01/98 113,725 195,000 12
John Piwinski 100% 07/01/96 0% -- 78,381 145,000 12
Thomas Tervanis 100% 02/01/98 0% -- 100,509 232,000 12
Michael Timothy 100% 07/16/92 100% 07/01/99 24,000 10,000 0
Victor Walchuk 100% 08/16/93 100% 03/01/97 187,256 220,000 12
Martin Wirtz 100% 08/01/95 100% 04/01/00 89,000 20,000 10
8 Nos. 02-2707, 02-3099 & 03-1921
Details for one firefighter show how these findings trans-
lated into a judgment. Peter Biondo received $35,125 in
prejudgment interest on the back-pay amount of $112,000.
The court did not add interest to the damages for emotional
distress. So money damages came to $272,125. Biondo had
been promoted (after his success on a later exam) to lieu-
tenant on February 16, 1998; the court ordered the Depart-
ment to make this promotion retroactive to November 1,
1990, which provided Biondo with additional seniority and
pension benefits. (This date was selected to leave an
adequate gap before the promotion to captain, which the
jury found would have occurred on August 16, 1993, but for
the delay in Biondo’s promotion to lieutenant.) Finally, the
court ordered the Department to pay Biondo at the rate of
a battalion chief for the period between March 1, 2002, and
March 1, 2014, unless Biondo left the Department’s employ
earlier.
Some of these findings are hard to quarrel with. For ex-
ample, Michael Timothy, whose promotion to lieutenant
was delayed, made it to both captain (from the 1992 exam
for that position) and battalion chief (from the 1994 exam);
his damages reflect just a short delay in promotion and a bit
of aggravation. Gacki and Wirtz became captains after the
1999 examination. But other findings are more problematic:
the juries found that most of the plaintiffs were sure to be
promoted even though, except for Gacki, Timothy, and Wirtz,
they have failed to achieve advancement through the com-
petitive process since becoming lieutenants (a position 15 of
them managed to achieve, eventually, on their own: 5 by
delayed promotion from the 1986 list, and 10 by promotion
from later examinations). The finding that Gacki had a “0%”
chance of becoming a captain is puzzling, as he actually
achieved that position in 1999. (This finding was the work
of the second jury; the first jury concluded that Timothy and
Wirtz, the others who already were captains, had a 100%
probability of promotion to that position. Neither jury be-
Nos. 02-2707, 02-3099 & 03-1921 9
haved inconsistently.) Then there is the inexplicable verdict
concerning Michael Oliver: 90% likely to become a captain
and certain to become a battalion chief, even though the
latter promotion is impossible without the former.
The City does not dispute the district court’s central ap-
proach: asking the jury to determine the probability that
being held back in 1986 cost the plaintiffs later chances for
advancement. This “loss of a chance” method is the best
way to handle probabilistic injuries. See Bishop v. Gainer,
272 F.3d 1009, 1015-16 (7th Cir. 2001); Doll v. Brown, 75
F.3d 1200, 1205-07 (1996); Griffin v. Michigan Department
of Corrections, 5 F.3d 186, 189 (6th Cir. 1993). If four people
competing for one position lost an equal chance to get it,
then each should receive 25% of the benefits available. Or
if a person would have had a 25% chance of promotion from
lieutenant to captain, then preventing that person from be-
coming a lieutenant should lead to a remedy equal to 100%
of the benefits of being a lieutenant plus 25% of the incre-
mental benefits of being a captain. (This assumes that all
plaintiffs are risk neutral; in most cases, however, they would
pay to reduce risk, so the proper award should be something
less than the actuarial value—for promotion is uncertain.
Neither side makes anything of this, however, so for sim-
plicity we assume risk neutrality.)
Unfortunately, the juries’ estimates do not reflect a plausible
appreciation of the lost chances: the juries concluded that
every one of the plaintiffs who had not yet achieved a cap-
taincy was certain to have done so—even though four plaintiffs
had been unsuccessful in post-1986 attempts to become lieu-
tenants, and 9 of the 15 plaintiffs who reached lieutenant
had tried and failed to achieve higher ranks. (Timothy, Gacki,
and Wirtz became captains after succeeding on exams;
Corcoran, Joyce, and McElroy were promoted independently
of the testing process, for reasons that the parties do not
relate.) Even in a world of grade inflation, where teachers
living far from Lake Wobegon think nothing of rating all
10 Nos. 02-2707, 02-3099 & 03-1921
students as “above average,” it is hard to swallow a con-
clusion that all candidates held back from promotion to
lieutenant in 1986 were sure to become captains. Remember
that 209 firefighters were promoted to lieutenant from the
1986 exam. Plaintiffs ranked well below many of those 209,
though high enough to have made the cut but for the
preference given to minority firefighters. They are not the
pick of the class, the people who regularly finish first on every
exam. Of the 528 lieutenants who took the 1992 exam for cap-
tain (the first that these plaintiffs could have taken had
they been promoted from the 1986 exam), only 136 (or 26%)
were promoted. That one-in-four chance was the outcome
for persons who, on average, had done better on the lieuten-
ants’ exam than plaintiffs (for even had they been promoted,
they would have been in the bottom half of the 1986
lieutenant class). And of the 137 captains who took the 1994
exam for battalion chief, only 54 (or 41%) were pro-
moted—though these juries concluded that 8 of our 19
plaintiffs had a 100% chance of promotion to battalion chief,
and that another four had chances exceeding 41%.
One must take into account the possibility of sitting for
multiple exams: 132 lieutenants who were not promoted from
the 1992 test for captain applied again in 1998; of these, 29
(or 22%) have been promoted. This suggests that of those
lieutenants who take the captain’s exam at all, about 33%
are promoted either from the first exam or a second try (if
they persist through a second exam, and one could extrapo-
late that around 40% of aspiring lieutenants could achieve
promotion by taking the exam) three or more times. Still,
this is a long way from the 100% success rate that the juries
calculated for our 19 firefighters.
The verdicts imply that, if we were to look at the most
comparable firefighters—say, the 25 who ranked immedi-
ately above the plaintiffs on the 1986 exam and were pro-
moted to lieutenant as a result—we would find that all
became captains no later than November 2000, and that
Nos. 02-2707, 02-3099 & 03-1921 11
most would be battalion chiefs today. The record does not
reveal how these firefighters actually fared, and plaintiffs,
who bear the burden of persuasion, suffer from the omis-
sion. The best evidence of the chance they actually lost is
missing. Nonetheless the verdicts might be sustainable if
evidence demonstrated that, despite finishing out of the top
hundred who took the 1986 exam, these plaintiffs must
have had a bad day and were really more likely to succeed
than the average exam-taker. That only 3 of the 19 have be-
come captains by examination (some after two chances, in
1992 and 1998), suggests otherwise.
The record does not contain any evidence comparing these
plaintiffs with other firefighters. Each of the 19 elected to
present a non-comparative case. Each testified that he loves
the work, strives to succeed, and studies hard for tests.
Each presented evidence about his education and experience.
Most presented family members and friends who testified
to the long hours the plaintiff studied, the plaintiff’s com-
mitment to the fire department, and so on. This evidence
does not permit quantification of the chance lost by being
held back in 1986. Firefighters do not strive to meet an
absolute standard; they compete against their colleagues.
The other firefighters taking tests for higher positions also
love the department and prepare thoroughly. Only a dem-
onstration that these plaintiffs are much better at tests than
their rivals would support a verdict that the chance lost was
100% or anything like it. Yet the plaintiffs bypassed their
opportunity to introduce comparative evidence; and what
evidence the record does contain—that these plaintiffs did
not excel on the 1986 exam; that they have not done well on
tests for promotion since then; that only 33% of those who
were actually promoted to lieutenant by 1992, and pursued
further promotion, made captain by 2002—undermines the
verdicts. Even giving all of the evidence and inferences a
reading favorable to plaintiffs, no reasonable juror could find
that all were destined to become captains. The verdicts there-
fore cannot stand.
12 Nos. 02-2707, 02-3099 & 03-1921
Because none of the plaintiffs presented comparative evi-
dence, the view most favorable to the plaintiffs as a group
is that each would have done as well as the average lieu-
tenant on the 1992 and 1998 exams. This means that, but for
the discrimination after the 1986 exam, 33% of the plaintiffs
(or 6 of them) would have become captains by 2002 via ex-
amination. Three actually reached that level (and Timothy
went on to battalion chief), and three more achieved a cap-
taincy in some other way, so the remaining 16 lost only 3
captaincies (or none, depending on how the non-competitive
promotions are handled). Perhaps it is inappropriate to hold
the promotions of some plaintiffs against the rest in this
way; it depends on whether we view these 19 as all of the
victims of discrimination (in which event at most 3 pro-
motions were lost) or as a random sample of the victims (in
which event the lost-chance figure should be applied person by
person). The City takes the latter view, which is the more
favorable to the 13 plaintiffs who have stopped short of
captain. (These 19 are not the only victims; other fire-
fighters have claims yet to be tried; their disposition has
been postponed to await our decision concerning these fire-
fighters.) Accordingly, on remand each of the 13 is entitled
to all of the benefits he would have received from a timely
promotion to lieutenant, plus 33% of the benefits available
from promotion to captain. And as about 41% of captains
eventually become battalion chiefs, the award for the 10
plaintiffs who the jury thought likely to achieve that goal
could include about 14% of the benefits of that position (a
33% chance of becoming a captain times the 41% chance that
a captain eventually will advance again).
Other remedies depend on the unsupported view that all
19 plaintiffs were sure to become captains. Promotion to bat-
talion chief is possible only for captains, so the high probabili-
ties assigned to battalion chief for 11 plaintiffs are untena-
ble. The back pay awards depend on the probabilities (and
dates) of these promotions; they too must be vacated. The
Nos. 02-2707, 02-3099 & 03-1921 13
awards of compensatory damages for emotional distress
also are linked to the estimates of promotional likelihoods.
As the district judge remarked, this is why the awards to
Timothy and Wirtz are relatively low: they suffered an
insult and aggravation but were not held back significantly
in their careers. The awards appear to be dominated by the
jurors’ belief that persons who should have been captains, and
were stuck for a decade in the rank-and-file, suffered acute
mental distress. Recognition that these plaintiffs were not
destined for the captaincy doubtless would influence the
evaluation of their degree of (justifiable) distress. Finally,
the district judge’s equitable orders (retroactive seniority
and pensions, front pay) assume the validity of the jurors’
conclusions. A change in the promotion probabilities and
dates requires everything else to be redone. Consequently
we vacate the entire judgment and remand for a new trial
limited to the calculation of back pay and damages for emo-
tional distress on the assumption that each of the plaintiffs
who has yet to reach captain lost a 33% chance of promotion
by 2002.
The district judge should see to it that any awards of com-
pensatory damages for mental distress are proportional to
the wrongs—and to the caps added by the 1991 Act. They do
not apply directly to injury before 1991, but much of the
harm post-dates that legislation. No matter how serious the
offense, compensatory damages for discrimination covered by
the 1991 Act cannot exceed $300,000. See 42 U.S.C.
§1981a(b)(3). The awards in this case reached $232,000 (to
Tervanis), yet the emotional distress that these firefighters
endured must be considerably less than that suffered by
other victims of discrimination—some of whom lose their
livelihood by racially motivated discharge, others of whom
endure sexually or racially based harassment or assaults
that can make a job a source of trauma and misery. Some-
times discrimination produces mental breakdowns and long-
term disability. See Wilson v. Chrysler Corp., 172 F.3d 50014 Nos. 02-2707, 02-3099 & 03-1921
(7th Cir. 1999); Williamson v. Handy Button Machine Co.,
817 F.2d 1290 (7th Cir. 1987). None of our plaintiffs suf-
fered such substantial injuries. If awards even in these ex-
treme cases are capped at $300,000, the award appropriate
to discrimination that simply retards the rate of promotion
must be considerably less in order to maintain proportional-
ity. Compare Hennessy v. Penril Datacomm Networks, Inc., 68
F.3d 1344 (7th Cir. 1995), with Fine v. Ryan International
Airlines, 305 F.3d 746 (7th Cir. 2002).
This leaves front pay. The district court added 12 years’
worth, at the highest position the jury projected for each
plaintiff (provided that the plaintiff was still employed at
the Department in 2002). The judge explained that this
unusually long period was justified by the infrequency of
promotional opportunities and the fact that the plaintiffs
were too distracted by the litigation (and the wrong done
them in 1986) to be effective exam-takers earlier. Front pay
must be reduced to match the opportunity lost—so a person
who lost a 33% chance to become a captain by 2002 is
limited to front pay at 33% of that position’s salary until it
is achieved by examination. (To be precise, such a person
gets the salary and benefits of the position actually held,
plus 33% of the difference in salary and benefits between
that position and captain.)
As for duration: we agree with the City that 12 years
exceeds the scope of a district court’s equitable discretion.
The goal of front pay is to put the victim in the financial
position he should have enjoyed, when circumstances make
it inappropriate to direct the employer to promote (or hire)
him. See, e.g., Pollard v. E.I. du Pont de Nemours & Co.,
532 U.S. 843, 846 (2001); Williams v. Pharmacia, 137 F.3d
944, 954 (7th Cir. 1998); Graefenhain v. Pabst Brewing Co.,
870 F.2d 1198, 1212 (7th Cir. 1989). This means, we ob-
served in Williams, that front pay cannot extend past the
time a reasonable person needs to achieve the same or an
equivalent position in the absence of discrimination. Even
Nos. 02-2707, 02-3099 & 03-1921 15
if the lingering effects of discrimination hindered promo-
tional opportunities until trial in 2002, front pay cannot
logically continue after the next unimpeded promotional
opportunity—the first post-2002 exam for captain (for those
plaintiffs who were lieutenants in 2002) or battalion chief
(for those who had become captains). The opportunity to
seek promotion then gives each plaintiff everything to
which he is entitled; a lieutenant or captain who does not
achieve a competitive promotion no longer can blame his
status on discrimination that delayed (but did not prevent)
promotion to lieutenant. Setting this limit also gives plaintiffs
an incentive to compete for promotions, unlike the district
court’s remedy, which all but guaranteed plaintiffs the highest
possible salary through retirement without the need to seek
advancement or perform the duties of the higher positions.
Perhaps what we have said will lead the litigants to resolve
these remaining issues (and the remaining firefighters’ claims)
amicably rather than slug it out again in the courtroom. We
hope so; this dispute is approaching its third decade. The
judgments are vacated, and the case is remanded for
proceedings consistent with this opinion.
16 Nos. 02-2707, 02-3099 & 03-1921
WILLIAMS, Circuit Judge, concurring. I concur in the result,
given the arguments presented to us. I write separately to
reiterate what the Supreme Court has made clear: “Al-
though all governmental uses of race are subject to strict
scrutiny, not all are invalidated by it.” Grutter v. Bollinger,
539 U.S. 306, 326-27 (2003). The City of Chicago’s use of
race in making promotional decisions is subject to strict
scrutiny, meaning it is constitutional if necessary to fulfill
a compelling government interest, so long as it is also nar-
rowly tailored to further that interest. Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 227 (1995). As my colleagues
note, we have recognized on numerous occasions that a gov-
ernmental agency has a compelling interest in remedying its
past unlawful discrimination. See Majeske v. City of Chi-
cago, 218 F.3d 816, 819 (7th Cir. 2000); McNamara v. City of
Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998); People Who
Care v. Rockford Bd. of Educ., 111 F.3d 528, 535 (7th Cir.
1997); Billish v. City of Chicago, 989 F.2d 890, 893 (7th Cir.
1993) (en banc); see also Erwin v. Daley, 92 F.3d 521, 527
(7th Cir. 1996) (“Courts have also held that a compelling
state interest can be demonstrated by the use of statistical
evidence of present discrimination plus a history of entry-
level and promotional discrimination.” (citations omitted)).
Yet unlike the position it has taken in other cases, the
City did not defend its actions on the basis that it was rem-
edying past discrimination in the Chicago Fire Department.
Cf., e.g., McNamara v. City of Chicago, 138 F.3d 1219 (7th
Cir. 1998) (finding that non-rank order promotions in
Chicago Fire Department were justified by City’s past racial
discrimination in employment of firefighters); Chicago Fire
Fighters Union Local 2 v. Washington, 1999 U.S. Dist.
LEXIS 20310, at *8 (N.D. Ill. Dec. 30, 1999) (defending non-
rank order promotions as part of policy to remedy effects of
past racial discrimination). Because the City made no
argument that past discrimination was a factor in any
decision related to the scoring of the 1986 examination, we
Nos. 02-2707, 02-3099 & 03-1921 17
are precluded from analyzing the case on this basis.
A nonremedial reason may also constitute a compelling
interest supporting the use of race and ethnicity in employ-
ment decisions. For example, this court found that the
Chicago Police Department had a compelling interest in
having a diverse population at the rank of sergeant. Petit v.
City of Chicago, 352 F.3d 1111, 1115 (7th Cir. 2003); cf.
Grutter, 539 U.S. at 329 (finding law school had a com-
pelling interest in a diverse student body). We similarly
recognized an operational need for persons of different races
in the corrections environment. Wittmer v. Peters, 87 F.3d
916, 919 (7th Cir. 1996). In this case, however, the City did
not argue that the pursuit of diversity constituted a com-
pelling interest.
Based on the arguments presented to us, I concur in the
result on the merits. I am in full agreement with the deci-
sion to vacate the damage awards.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-27-04