1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3 ERNEST T. BROWN, et al., )
)
4 Plaintiffs, )
) No. 95 C 1890
5 v. ) Chicago, Illinois
) November 18, 1997
6 CITY OF CHICAGO, ) 10:30 a.m.
)
7 Defendant. )
8 VOLUME 1
9 TRANSCRIPT OF PROCEEDINGS - TRIAL
10 BEFORE THE HONORABLE ROBERT W. GETTLEMAN
11 APPEARANCES:
12 For the Plaintiffs: KENNETH N. FLAXMAN, P.C.
122 South Michigan Avenue
13 Suite 1850
Chicago, Illinois 60603-6107
14 BY: MR. KENNETH N. FLAXMAN
15 and
16 FUTTERMAN & HOWARD, CHTD.
122 South Michigan Avenue
17 Suite 1850
Chicago, Illinois 60603
18 BY: MR. CRAIG FUTTERMAN
19
For the Defendant: MAYER, BROWN & PLATT
20 190 South LaSalle Street
Chicago, Illinois 60603
21 BY: MR. JAMES HOLZHAUER
MR. JEFFREY S. PIELL
22 MS. ANGELA K. DORN
MR. ANDREW NICELY
23
Official Court Reporter: JENNIFER S. COSTALES, CSR, RMR
24 219 South Dearborn Street
Room 1744-A
25 Chicago, Illinois 60604
(312) 427-5351
2
1 (Proceedings had in open court.)
2 THE CLERK: 95 C 1890, Ernest Brown versus City of
3 Chicago, for trial.
4 MR. FLAXMAN: Good morning, Your Honor. Kenneth
5 Flaxman for the plaintiffs.
6 MR. HOLZHAUER: Your Honor, James Holzhauer for the
7 City of Chicago. I'm joined by Angela Dorn, Jeffrey Piell and
8 Andrew Nicely.
9 MR. FLAXMAN: With me is Craig Futterman,
10 F-u-t-t-e-r-m-a-n.
11 MR. HOLZHAUER: Your Honor, I think the first issue
12 before the Court might very well be the issue of who goes first
13 in this case.
14 THE COURT: Well, first of all, that's not the first
15 issue. The first issue is scheduling.
16 MR. HOLZHAUER: Okay.
17 THE COURT: First of all, I apologize for the delay
18 yesterday. It was unavoidable. We were here until quite late
19 with a sentencing so that I could get it over with and get
20 started today. And then today, of course, we had the motion
21 call from hell. We're even starting late today.
22 We're going to knock off today at 4:00 o'clock.
23 Tomorrow we'll be able to go until 5:00. Thursday, we'll have
24 to knock off at 4:00. Monday, we'll have to knock off at
25 around 3:25. And Tuesday, we'll have to knock off at 4:00.
3
1 The week after that, I think we'll be pretty well able to go to
2 5:00 o'clock each day, each of the four days we have set. I
3 hope that's enough time to finish this case. If it's not,
4 we'll have to continue it in the fashion that bench trials are
5 often continued, but that I don't like to do if I can help it.
6 MR. HOLZHAUER: What is our starting time each day,
7 Your Honor?
8 THE COURT: Well, usually right after the call.
9 Tomorrow I have a fairly long call again. So let's say 10:00
10 o'clock. Wednesday, I do not have a long call.
11 MR. FLAXMAN: Tomorrow is Wednesday.
12 THE COURT: I'm sorry, Thursday, I know. The week
13 has gotten away from me. Thursday we can probably start around
14 9:30. I only have one motion. That's the way it happens.
15 You're either flooded or you don't have any.
16 So with that in mind, who goes first? I don't know.
17 What do you say about that, Mr. Flaxman?
18 MR. FLAXMAN: We actually had discussed this. And I
19 said that, well, I thought the plaintiff always goes first at a
20 trial. And we're the plaintiff and we go first.
21 THE COURT: Well, but they have conceded disparate
22 impact.
23 MR. FLAXMAN: They haven't conceded that plaintiff
24 wins. And the plaintiff has an opportunity usually to put on
25 its case. And our case is more than just a bare statistical
4
1 case.
2 THE COURT: Well, let me put it this way. It doesn't
3 really matter to me who goes first, in what order witnesses are
4 put on. I encourage you to make it as convenient as you can
5 for the witnesses. I don't care if we have to take people out
6 of order or accommodate people's schedules. The parties are
7 one thing. The witnesses are quite another. So --
8 MR. HOLZHAUER: Your Honor, if I may for a second.
9 THE COURT: -- let's keep that in mind.
10 MR. HOLZHAUER: We have some concern about the order
11 of presentation, the order of proof. And I think Mr. Flaxman
12 is dead wrong about his analysis of the law. In fact, the law
13 is quite clear that the person with the burden of proof goes
14 first, and we can cite lots of things for it.
15 He's also said that to the Court a number of times,
16 particularly when we were talking about trying to schedule who
17 declares witnesses. The concern that I have is this: If
18 Mr. Flaxman says that he has some of his witnesses here and he
19 needs to have them testify for their convenience, that's fine
20 with me.
21 What I don't think would be fine and appropriate
22 under the circumstances would be for him, for example, to call
23 our key expert witness before we've had a chance to do our
24 direct testimony from him and to present our case in chief on
25 whether the tests are valid.
5
1 MR. FLAXMAN: I won't do that. I won't do that.
2 MR. HOLZHAUER: Mr. Flaxman, who do you intend to
3 call?
4 MR. FLAXMAN: Oh, I'll be glad to provide everybody
5 with --
6 THE COURT: I would ask both of you, not ask both of
7 you, I am going to direct both of you to share your list of
8 witnesses and the order you are going to call them with each
9 other at least a couple days in advance, if not longer than
10 that if you can.
11 MR. FLAXMAN: In my defense, I thought I had
12 communicated that to one of the defense team. Perhaps my
13 message got garbled.
14 But we have two plaintiffs this morning. We have
15 Mr. Bishop this afternoon. We have Dr. York tomorrow. And we
16 have two plaintiffs in the afternoon, and then we're done with
17 our case in chief. We also have Mr. Holzhauer as our first
18 witness.
19 MR. HOLZHAUER: Well, we certainly hadn't been
20 informed that Mr. Holzhauer was going to be the first witness.
21 MR. FLAXMAN: I think that that was brought out very
22 clearly when Mr. Holzhauer sought to file his appearance that
23 we had named him as a witness.
24 MR. HOLZHAUER: As a witness certainly, but the order
25 was not --
6
1 THE COURT: Please, let's not --
2 MR. HOLZHAUER: That's fine.
3 THE COURT: These are games that I don't want to have
4 to play. We have more serious things to deal with here, all
5 right.
6 So you are going to call Mr. Holzhauer as your first
7 witness?
8 MR. FLAXMAN: I would like to, yes.
9 THE COURT: Okay. Do either of you want to make any
10 kind of opening statement? I've read your trial briefs. I've
11 read your proposed -- both of your proposed findings of fact,
12 conclusions of law. I will comment on that just for a moment.
13 It seems to me that many, many facts here are
14 undisputed. And yet as I looked at the pretrial order, I think
15 I only saw three or four facts that were listed as uncontested,
16 three with subparts. That's a bit disappointing. Before the
17 day is out, not this day, but before this trial is over, I'm
18 going to ask you to provide me with an agreed stipulated set of
19 facts.
20 MR. HOLZHAUER: Certainly, Your Honor.
21 In response to your question, I would like to do a
22 brief opening statement.
23 THE COURT: Well, I think that you're each entitled
24 to do that. I don't want to take too much time with opening
25 statements since we all know pretty much what's at stake here.
7
Flaxman - opening
1 But I think you have a right to present an opening statement.
2 So, Mr. Flaxman, do you -- are you going to waive
3 opening statement?
4 MR. FLAXMAN: Not if Mr. Holzhauer wants to give one.
5 I'll be glad to. If we both waive it, that's fine. But if
6 he's going to talk --
7 THE COURT: Well, then the floor is yours,
8 Mr. Flaxman.
9 MR. FLAXMAN: Thank you.
10 OPENING STATEMENT ON BEHALF OF THE PLAINTIFFS
11 MR. FLAXMAN: As we know, this case involves
12 promotional tests. One of the curiosities about a test in an
13 employment situation is that it's difficult to do a true
14 experiment to see if the tests are predicting who is going to
15 be a successful performer on the job.
16 If you're an employer, you want to select and promote
17 those who you believe will do better on the job. You're not
18 interested in doing a scientific survey with a control group
19 and a randomly selected group and those who you are selecting
20 on the test. You want to select the people who you think are
21 the best. So it's hard to do an experiment, a true experiment.
22 But for about the last 20 years or so in the City of
23 Chicago, we've had a quasi-experiment. There has been quotas
24 mandated by the district court and by the Court of Appeals.
25 And those quotas have forced the City of Chicago to promote
8
Flaxman - opening
1 minority officers to sergeant and lieutenant who scored
2 significantly lower on promotional tests than white officers.
3 One result of this quasi-experiment was to end the
4 long-standing history of discrimination in the Chicago Police
5 Department. In 1973, African-American and Hispanic police
6 officers made up about 11 percent of the lieutenant work force,
7 about the same with the sergeant work force, and about 17
8 percent of the police officer work force. By 1994, before any
9 promotions were made from the test at issue in this case,
10 race-conscious remedies had increased the representation of
11 African-American or Hispanic police officers to be about 34
12 percent of the police officer work force, about 28 percent of
13 the sergeant work force, and about 23 percent of the lieutenant
14 work force.
15 Promotions were allowed to go forward from the test
16 at issue in this case. We now have a lieutenant work force
17 that's about 12-percent minority. The representation of
18 minorities in the lieutenant work force is about half as a
19 result of the promotions that went forward. It's time to end
20 those promotions and to fashion a remedy.
21 One of the results of this quasi-experiment that's
22 been running in the City of Chicago, and a result that's
23 important to this case, is that we've all had a chance to see
24 how minorities who do not score as well as whites on
25 promotional tests do on the job. And you heard testimony about
9
Flaxman - opening
1 that at the preliminary injunction hearing from then Commander
2 Hilbring. And Commander Hilbring told you how he got promoted
3 because of a quota and how many other minority officers got
4 promoted because of quotas and made it to the highest levels of
5 the police department.
6 You're going to hear some additional evidence briefly
7 in this trial about that from Doris Byrd. Ms. Byrd is going to
8 tell you about she was on the list to be promoted to sergeant
9 back in 19 -- after the first quotas were imposed, 1979, and
10 then somebody decided there should be not just a
11 black-white-Hispanic quota, but there should be a female quota.
12 So Ms. Byrd, who is an African-American female, was
13 taken from the list of African-Americans and put on the list of
14 females. The result was that African-Americans who had scores
15 lower than Ms. Byrd got promoted to sergeant. And some of
16 those are now commanders in the highest ranks, and Ms. Byrd is
17 now a sergeant. She got promoted on the next test.
18 What we've seen, and maybe the City will agree, is
19 that the minority sergeants who have been promoted with lower
20 test scores performed just as well as the white sergeants who
21 had the higher test scores. It is in this historical context
22 of this quasi-experiment that we come to this case.
23 The City has conceded that the statistical evidence
24 establishes a prima facie case of disparate impact
25 discrimination for each part of the test; the written test, the
10
Flaxman - opening
1 so-called in-basket, and the so-called oral test, and for the
2 final rankings.
3 We will show at this trial that the job knowledge
4 test, like Mr. Joyce who is going to testify for the City said
5 about the 1987 test, is not content valid. We will also show
6 that the so-called in-basket test is an unvalidated exercise
7 that measures nothing other than how well you can do on that
8 test. We will show the same thing about the oral test.
9 One of the things we're going to be focusing on as
10 this trial progresses is the scoring system. One of the
11 questions that we're going to ask Dr. Barrett when he testifies
12 as a defense witness and we cross-examine him is: Where did
13 the time limits come from for the written short answer test and
14 the in-basket test? How did he decide that there should be 60
15 minutes for the in-basket or 150 minutes, I think it was, for
16 the short answer? Where did the scoring system come from for
17 the oral test? How did you get that 15 points? How did you
18 decide to take off points for somebody who made a long pause?
19 What's the justification for rank order use of the form -- of
20 the scores?
21 And Dr. Barrett is going to have answers for each of
22 these questions. And as the questions get harder, his answers
23 are going to get more and more complicated. And after
24 everybody hears all of Dr. Barrett's testimony, I think I'll
25 try to remind the Court about what Judge Posner said in one of
11
Flaxman - opening
1 his books. He said that "Scientists seek to bolster their
2 authority by affectations of mathematical rigor, by use of an
3 intimidating jargon, by suppressing doubts, and by concealing
4 the personal judgmental factors in the evaluation of
5 experimental, statistical or observational results." That's
6 what I think we're going to hear from Dr. Barrett.
7 When the defense is done, we'll return to argue about
8 the equally valid less discriminatory alternative, merit
9 promotions. We're going to start out with that with
10 Mr. Holzhauer. And that gets to the legal question which I
11 think is an easy, a baby legal question is: Is this Court
12 constrained by state law from fashioning a remedy for violation
13 of Title VII? The answer is clearly no.
14 And the answer has to be that if there is this
15 equally valid less discriminatory alternative, even if the test
16 is valid, even if Dr. Barrett's jargon, intimidating jargon
17 establishes that the test is content valid and that the scoring
18 system is valid, there is this equally valid less
19 discriminatory alternative which the City should have used and
20 did not use. That's what we believe the evidence will show.
21 Thank you.
22 THE COURT: Thank you, Mr. Flaxman.
23 Mr. Holzhauer.
24 MR. HOLZHAUER: Thank you, Your Honor.
25 OPENING STATEMENT ON BEHALF OF THE DEFENDANT
12
Holzhauer - opening
1 MR. HOLZHAUER: The threshold issue in this case is,
2 of course, whether the lieutenants exam, the 1994 exam was
3 job-related and consistent with business necessity within the
4 meaning of Title VII. And on that issue the City bears the
5 burden of proof, we acknowledge.
6 If we demonstrate that the test is job-related,
7 plaintiffs can prevail only if they prove that an equally valid
8 and job-related alternative selection device is available to
9 the City and would not have a similarly undesirable adverse
10 impact, and that the City refused to adopt that alternative
11 test.
12 The evidence is going to show that the 1994 exam was
13 the product of years of good faith efforts on the City's part,
14 efforts that have been frustrated at times by changes in the
15 law brought by both Congress and the courts. Litigation over
16 the lieutenants' promotions started with the Bigby case
17 challenging the 1977 promotional exam that had an adverse
18 impact against minority candidates.
19 As a result of the Bigby litigation, the City began
20 to use quotas to ensure not only that the promotions would not
21 have an adverse impact, but also beyond that to increase the
22 representation of minorities in lieutenants ranks. I suppose
23 that's the star in the lieutenants ranks of a grand experiment
24 that Mr. Flaxman referred to.
25 When that list, the 1977 list was exhausted, the City
13
Holzhauer - opening
1 prepared and gave another exam in 1988. Although the raw
2 scores from that exam had adverse impact, the scores were
3 standardized by race in order to eliminate the impact. And the
4 evidence will show that in addition to that standardization,
5 sometimes known as race norming, the City went out of rank
6 order off that list to promote additional minority candidates
7 in order to meet affirmative action objectives.
8 Now, the result of this, of course, was that the City
9 got sued again, this time by nonminority candidates who claimed
10 first that the standardization was unlawful, and, second, that
11 even with the standardization, but by going beyond that and
12 selecting people out of rank order, the City violated the law.
13 And that's the Erwin case, which is still pending.
14 Now, in 1991, the evidence will show the Civil Rights
15 Act was passed prohibiting race norming. And the City
16 Department of Law took the position that the previous
17 lieutenants exam was vulnerable to attack as being in violation
18 of that act and decided, rather than to go through that attack,
19 it would take that list down or stop promoting lieutenants off
20 that list. So for three years following 1991, the City was
21 unable to fill the vacancies that occurred naturally in the
22 position of lieutenant.
23 Finally, in 1994, the exam that was at issue in this
24 case was given. The City followed the recommendations of a
25 Blue Ribbon Panel and hired an outside test consultant of great
14
Holzhauer - opening
1 expertise to develop the test. That consultant, Dr. Gerald
2 Barrett of Barrett & Associates, will testify. He has -- and
3 it will be shown that he has extensive experience in developing
4 promotional tests generally and in developing promotional tests
5 for public safety forces in particular.
6 It will be shown that in developing this exam,
7 Dr. Barrett vigorously and rigorously followed the EEOC
8 guidelines for test development as well as the other
9 promotional standards for the development of promotional exams.
10 He began with a thorough and comprehensive job analysis, which
11 was based both on the work of a previous consultant who did a
12 job analysis and on his own independent investigation. That
13 investigation included interviews of scores of lieutenants and
14 other police officers. They observed lieutenants on the job.
15 They did ride-alongs in lieutenants' police cars. And they
16 reviewed the relevant materials.
17 The analysis ultimately produced a list of major work
18 behaviors of lieutenants and a list of the knowledge, skills
19 and abilities required of lieutenants. And those documents
20 will be shown during Dr. Barrett's report. Dr. Barrett then
21 developed a three-part exam consisting of an oral briefing
22 exam, a written job knowledge test and an in-basket exercise.
23 Each of these components and every item of each of these
24 components was specifically linked to those major work
25 behaviors and to those knowledge, skills and abilities that had
15
Holzhauer - opening
1 been identified in the job analysis.
2 Now, Dr. Barrett did not do his work in a vacuum.
3 Barrett & Associates did not work alone. At each stage, they
4 made use of well-qualified subject matter experts supplied by
5 the Chicago Police Department. The evidence will show that
6 these were high-ranking police officers with extensive
7 experience and with varied racial backgrounds. They reviewed,
8 weeded out, added to all of the materials that Dr. Barrett and
9 his group looked at and reviewed in composing the test.
10 They also reviewed, made modifications to, deleted
11 and added to all of the exam questions and exam items in the
12 three components of the exams with a goal of trying to make
13 sure that every item on each component of the test was related
14 to the position of Chicago police lieutenant.
15 When that was done, the evidence will show that
16 Barrett carefully evaluated how the three exam components were
17 going to be weighted. He took into account the likely
18 predictive validity of each component, and also the possibility
19 of adverse impact, and he determined that they should be
20 weighted equally.
21 Now, he followed the recommendations of the Blue
22 Ribbon Panel. One of their firm recommendations was that the
23 test components should be announced in advance. Candidates
24 should know exactly what they are being tested on and what
25 those weights are, and they should be stuck to. So before this
16
Holzhauer - opening
1 test was given, exactly what the procedure was going to be and
2 how these exam components were going to be weighted was
3 announced in advance.
4 Now, I think the evidence is going to show that by
5 following all these steps, Dr. Barrett developed a job-related
6 content valid promotional exam. And he certainly developed an
7 exam that he and the City of Chicago hoped would have no
8 adverse impact. Of course, we know, and we've stipulated, that
9 despite this effort the exam did have a significant adverse
10 impact on minority applicants. Three African-American exams
11 did extraordinarily well -- candidates, rather, did
12 extraordinarily well on this exam, two tying for 12th, one
13 finishing 28th. Those three were promoted in the first round
14 of 54. But looking at the overall statistics, there is no
15 denying that this test had a serious adverse impact.
16 Now, the evidence will show that the City, with
17 Dr. Barrett's help, carefully considered alternative ways of
18 using the test results in order to relieve that adverse impact.
19 First, in other exams, the City had used a banding approach
20 rather than make promotions in rank order. The City considered
21 doing that banding approach of discarding rank order for this
22 exam but discovered that that would not relieve the adverse
23 impact of the exam.
24 Next the City considered using the test for just 80
25 percent of the promotions and basing the remaining 20 percent
17
Holzhauer - opening
1 on a subjective process that is sometimes referred to as merit
2 promotions, Mr. Flaxman has referred to as merit promotions.
3 Under that system candidates would be nominated by their
4 supervisors, their credentials would be reviewed by an academic
5 selection board and the final choice would be made by the
6 superintendent.
7 Now, there is no proof that this procedure would be
8 equally valid or would reduce the adverse impact. But it had
9 been successfully tried in the past for the position of
10 detectives. After considering this option, the City decided to
11 try it and to promote 20 percent of lieutenants on the basis of
12 merit. But the evidence will show that nonminority sergeants,
13 who believed they were passed over for promotion as a result of
14 that procedure, filed suit to enjoin the merit promotions, and
15 that the state courts, the circuit court and the appellate
16 court both sided with those plaintiffs and enjoined the City.
17 That, as you know, is the McArdle litigation.
18 In the end, the City made 108 promotions off the 1994
19 list. It's recently announced that it doesn't intend to make
20 any additional promotions. The 108 promotions that it made did
21 have an adverse impact on minority candidates.
22 Now, Your Honor, from the pretrial briefs and from
23 the comments that Mr. Flaxman made today and from other
24 filings, I am sure that Mr. Flaxman will argue and try to
25 demonstrate that the test was not properly validated for rank
18
Holzhauer - opening
1 order selection. But the evidence is going to show that the
2 adverse impact of this test was not caused by rank order
3 selection.
4 To the contrary, the evidence will show that how the
5 City grouped candidates into statistically valid bands of large
6 numbers of 200, 215 candidates, and picked randomly within
7 those bands, the adverse impact would have been the same or
8 worse.
9 The evidence will also show that if the City had not
10 used rank order at all, it would have resulted in just as
11 serious an adverse impact. Accordingly, the City made the
12 promotions in rank order, because test scores do have some
13 predictive validity and because rank order selection did not
14 cause any additional adverse impact.
15 Plaintiffs will also try to demonstrate that a few of
16 the exam questions, particularly on the written job knowledge
17 component, were not adequately related to the position of
18 lieutenant in the Chicago Police Department. We seriously
19 question the propriety of the federal courts sitting as super
20 personnel departments reviewing and second guessing the
21 judgment of the police department as to what is and what is not
22 required of the position of lieutenant. We don't believe this
23 kind of management is what the City -- the statute requires.
24 But even if it were, the evidence will show that the
25 developer used police department subject matter experts to make
19
Holzhauer - opening
1 sure that each and every item on the test was job related for
2 the job of lieutenant in the police department.
3 Plaintiffs will also try to show, as he said, that an
4 alternative selection method, merit promotion existed and it
5 was equally valid and would not have had a similar impact. And
6 they have the burden of proof on this issue.
7 They will not be able to offer any evidence that
8 merit promotion would be equally valid and nondiscriminatory as
9 a complete alternative to testing. I assume they're going to
10 try to prove that the City could have reduced the adverse
11 impact by promoting a fraction of the new lieutenants, 20
12 percent perhaps, based on merit. Of course, that's exactly
13 what the City tried to do and the state court held that it was
14 unlawful. Therefore, that alternative was not available to the
15 City.
16 Now, I question whether the City can or the
17 plaintiffs, rather, can meet their burden by showing that the
18 adverse impact could be reduced by promoting a fraction of the
19 candidates on merit while using the very test they challenge
20 for the bulk of the promotions. But even if they could, I do
21 not believe the evidence will be sufficient to meet their
22 burden of proving that partial merit selection would have been
23 equally valid and would have had reduced adverse impact.
24 In sum, the evidence is going to demonstrate that the
25 1994 lieutenants exam was a job related, content valid
20
1 examination. The plaintiffs, we believe, will be unable to
2 meet their burden of proving that there was an alternative
3 selection device available.
4 Thank you.
5 THE COURT: Thank you.
6 MR. FLAXMAN: Could I have a minute?
7 MR. HOLZHAUER: Sorry for the cold.
8 MR. FLAXMAN: We need to resolve a scheduling issue
9 with plaintiff.
10 THE COURT: Okay.
11 (Discussion off the record.)
12 MR. FLAXMAN: We'll call Mr. Holzhauer.
13 THE COURT: Before you do that, we've got some
14 motions in limine.
15 But before I even get to those, just so I understand
16 the context of this case, there is no claim here that there was
17 willful or deliberate discrimination, is that correct,
18 Mr. Flaxman?
19 MR. FLAXMAN: That's correct, Your Honor.
20 THE COURT: All right.
21 And there is an issue, a legal issue, I suppose, as
22 to whether or not if I were to rule in the plaintiffs' favor on
23 the merits here I would be able to override, in effect, an
24 injunction that's in place in the state courts?
25 MR. HOLZHAUER: That is a legal issue, yes, Your
21
1 Honor.
2 MR. FLAXMAN: That's correct.
3 THE COURT: Okay.
4 I haven't, if they were in there, and I missed them,
5 I apologize, but I don't think I've seen briefing on that
6 particular issue.
7 MR. HOLZHAUER: I don't believe there has been.
8 THE COURT: It seems to me that there is two issues
9 in that. One is: Can I ultimately overrule it? And would
10 Title VII -- under the supremacy clause -- or would it
11 supersede any state requirements? I read that decision, and it
12 seemed to say that it was based on the state statutes --
13 MR. HOLZHAUER: That's correct.
14 THE COURT: -- and the authority.
15 So it would seem to me that Mr. Flaxman is right that
16 if I were to conclude that it was a violation of Title VII, the
17 statutory scheme by which that promotion was made or was
18 intended to be made would not supersede Title VII.
19 The more interesting question perhaps is whether or
20 not it was available to the City at the time that they tried to
21 make this promotion. And I'm not sure that, you know, that
22 that issue is necessary for a judgment in the plaintiffs'
23 favor.
24 MR. HOLZHAUER: Well, Your Honor, I think that is a
25 necessary issue.
22
1 I think the question here is whether there was an
2 alternative selection device available that the City refused to
3 use. And if that device was not available as a matter of state
4 law, I think that's the case. Now, if the state law itself was
5 contrary to Title VII, I think that would be a different issue.
6 But I don't think we have a state law here that's contrary to
7 Title VII.
8 THE COURT: You might have an injunction that could
9 be.
10 MR. HOLZHAUER: I'm not sure the injunction was
11 contrary to Title VII, Your Honor. I think that -- I don't
12 think there would be any Title VII violation if the City -- if
13 the statute read exactly as the appellate court says it should
14 read, and the City has to go through these steps in order to
15 promote this way, and the City didn't go through these steps,
16 and, therefore, it can't do it, I don't think that would be a
17 violation.
18 MR. FLAXMAN: This sounds like those cases where
19 there was a state law protecting women which -- and there was
20 an injunction. It's one of those cases where there is an
21 injunction saying the employer couldn't let women work more
22 than 38 hours and that was a violation of Title -- that was
23 enjoined. I don't think there is a serious problem.
24 THE COURT: Well, then we have a question of remedy.
25 MR. HOLZHAUER: That's correct. That's a very
23
1 different issue.
2 THE COURT: Which is a very serious question that I
3 think we have to address. All right. I just want to have
4 those in mind.
5 On the motions in limine, there were three that I
6 counted.
7 One was withdrawn, correct, Mr. Flaxman?
8 MR. FLAXMAN: Correct.
9 MR. HOLZHAUER: Correct.
10 THE COURT: The motion in limine to prohibit
11 testimony about the in-basket component was withdrawn. And the
12 other two will be denied.
13 MR. HOLZHAUER: Thank you, Your Honor.
14 THE COURT: So off we go.
15 Mr. Holzhauer, do you want to take the stand?
16 MR. HOLZHAUER: I think I do.
17 THE COURT: Maybe that was the wrong way to put it.
18 Will you please take the stand, Mr. Holzhauer.
19 MR. HOLZHAUER: As one of the lawyers earlier asked
20 you, do I have to?
21 THE COURT: Yes. Please raise your right hand.
22 (Witness duly sworn.)
23 THE COURT: Have a seat.
24 JAMES HOLZHAUER, PLAINTIFFS' WITNESS, SWORN
25 DIRECT EXAMINATION
24
Holzhauer - direct
1 BY MR. FLAXMAN:
2 Q. Could you state your name for us, please?
3 A. My name is James Holzhauer.
4 Q. And back in 1990 or thereabouts, did you serve on something
5 called the Mayor's Blue Ribbon Panel of Police Testing, Hiring
6 and Promotion?
7 A. Yes, I did.
8 Q. And were you in fact the vice chairman of that committee?
9 A. Yes, I was.
10 Q. Could you briefly tell us what your credentials were to be
11 the vice chairman of that committee.
12 A. At the time that I was asked to be the vice chairman of
13 that committee, I was a partner handling employment and
14 discrimination matters in the law firm Mayer, Brown & Platt.
15 I had also been and was still at that point on the
16 faculty of the University of Chicago Law School as a regular
17 faculty member until 1988 and thereafter as a part-time faculty
18 member teaching the entire labor and discrimination law
19 curriculum for the university.
20 Q. Did you have some experience?
21 A. I also had some experience in this area.
22 Prior to coming to the University of Chicago, I had
23 been at the law firm of Bradhoff & Kaiser, which is a union and
24 plaintiff's side law firm that has a practice in the area of
25 discrimination law in which I had represented the Fraternal
25
Holzhauer - direct
1 Order of Police and other police unions and plaintiffs in the
2 area of law enforcement and discrimination.
3 Prior to that, prior to going to law school, I had
4 been a city manager in upstate New York and for a relatively
5 short period of time had actually been the civilian police
6 commissioner in charge of an upstate New York police
7 department.
8 THE COURT: Let me stop you just for a moment.
9 Are we excluding witnesses? Do you have any desire
10 to exclude witnesses? Obviously, parties aren't excluded.
11 Most of these are experts, and it would not offend me at all to
12 have them -- to not exclude witnesses.
13 MR. FLAXMAN: I don't think there is anybody here who
14 is excludable as a nonparty or a nonexpert, actually.
15 THE COURT: Okay, all right. I just wanted to make
16 sure. Okay.
17 MR. HOLZHAUER: Being my lawyer, we have no objection
18 to keeping witnesses here, whether they are excludable or not.
19 THE COURT: Good.
20 BY MR. FLAXMAN:
21 Q. Did you use your considerable experience to be certain that
22 the committee did a thorough job of fulfilling its mission?
23 A. I certainly relied upon my experience and background and my
24 work for the Blue Ribbon Panel.
25 Q. And the panel's mission was to study police testing,
26
Holzhauer - direct
1 hiring, promotion in the City of Chicago, is that correct?
2 A. That's correct.
3 Q. And the commission consulted with several experts, is that
4 right?
5 A. The commission didn't primarily consult with experts. It
6 primarily consulted with different witnesses from the City of
7 Chicago Police Department. But it met with some experts, yes.
8 Q. And did it -- the committee made recommendations to the
9 mayor, is that right?
10 A. Yes, it did.
11 Q. And did the committee recommend that performance
12 evaluations should play a role in promotions?
13 A. Yes, it did.
14 Q. Did the committee recommend that in making promotions, the
15 appointing authority should consider attendance?
16 A. Yes.
17 Q. Did the committee recommend that the appointing authority
18 should consider medical and disciplinary records?
19 A. I believe that that's not correct. I believe that that was
20 considered by the subsequent task force rather than by the Blue
21 Ribbon Panel, if my memory serves me correct. But I haven't
22 reviewed those reports.
23 Q. Let me show you what has been marked as Plaintiffs' Exhibit
24 60.
25 A. Okay.
27
Holzhauer - direct
1 Q. Is that the report?
2 A. This is the Blue Ribbon Panel Report, that's correct.
3 Q. And that's the one of which you were vice chairman of?
4 A. That's correct.
5 Q. Let me ask you to look at page 11.
6 A. Okay.
7 You're correct. It says, "Medical, disciplinary and
8 records."
9 Q. Okay. And in the course of doing that report, did the
10 committee make reference to a particular consulting firm in
11 their performance evaluation system?
12 A. We did mention the Richardson, Bellows & Henry company that
13 had tried to do a performance evaluation system that the City
14 of Chicago was in the process of reviewing.
15 Q. And did the committee conclude that it was impossible to
16 measure the performance of police officers?
17 A. The committee acknowledged that it was very difficult and
18 very controversial. We did not have any evidence before us
19 that it was possible. But we certainly didn't include --
20 conclude that it was impossible. We thought it was worth a
21 try.
22 Q. And it made a recommendation that a performance evaluation
23 system be used, is that right?
24 A. Right, that it be given a try.
25 Q. And did the committee also reach a conclusion about the
28
Holzhauer - direct
1 unanimous view of testing experts about rank order selection?
2 A. That was part of our view on hiring.
3 Q. And --
4 A. Not in the promotional area.
5 Q. In hiring, did the Blue Ribbon committee make the
6 conclusion that it is plainly incorrect to regard one candidate
7 as better qualified than another or more deserving of a job
8 simply because he or she scored slightly higher on a written
9 test?
10 A. Our view was that it was impossible or difficult from the
11 expert testimony to distinguish between number one and number
12 two on a promotion exam, yes.
13 Q. That is -- you didn't say something about number one and
14 number two in the report, did you?
15 A. No.
16 Q. You just talked about then another, simply because he or
17 she scored slightly higher?
18 A. Slightly higher, yes.
19 Q. All right. Now, after you served on this Blue Ribbon
20 committee, did you serve on another Blue Ribbon committee?
21 MR. PIELL: Your Honor, the City objects to this
22 questioning about any Blue Ribbon Panel or task force work that
23 was done after the 1994 lieutenants exam was administered as
24 irrelevant.
25 MR. FLAXMAN: It's a party admission. It is
29
Holzhauer - direct
1 potentially a party admission if it's a statement attributable
2 to the City of Chicago, and it's relevant to the existence of
3 an equally valid less discriminatory alternative.
4 THE COURT: I'll see where he's going with it.
5 Overruled.
6 BY MR. FLAXMAN:
7 Q. Did you also serve on a second blue ribbon committee?
8 A. No. There was something called a task force, I think
9 you're talking about, a task force on testing and promotion.
10 Q. And were you the chairman of the Police Department
11 Promotion and Testing Task Force?
12 A. Yes, I was.
13 Q. And were you appointed as a chairman by the mayor?
14 A. Yes, I was.
15 Q. Did you study testing issues?
16 A. Yes.
17 Q. And promotion issues?
18 A. Yes.
19 Q. And did that committee --
20 THE COURT: Was there a date?
21 BY MR. FLAXMAN:
22 Q. Did that committee submit its report in January of 1987?
23 A. Yes, it did.
24 Q. Is that report the document that's been marked as
25 Plaintiffs' Exhibit 133?
30
Holzhauer - direct
1 A. I don't recall the number. Yes, it is.
2 Q. And to make that report, did the Blue Ribbon committee
3 confer with experts?
4 A. Again, our primary discussions were not with experts. We
5 met primarily with representatives of the various organizations
6 that represent police officers, with aldermen and alderwomen
7 and people from the City. I think we might have met with a
8 couple of experts during that, but that was not our primary
9 work.
10 Q. Did the second Blue Ribbon committee conclude that written
11 examinations which test for relevant knowledge, skills and
12 abilities sometimes inadvertently tested candidates'
13 proficiency at taking an examination rather than his or her
14 knowledge of the material?
15 A. Yes, it did.
16 Q. Okay. Did the blue ribbon committee also recommend that
17 some promotions to lieutenant be made on the basis of merit?
18 A. Yes, it did.
19 Q. And when it made that recommendation, the committee knew
20 about the 20 years' of experience that the City had had in
21 selecting some detectives by merit?
22 A. That's correct.
23 Q. And the committee knew that in selecting some of those
24 detectives by merit, the City had not discriminated against any
25 identifiable group?
31
Holzhauer - direct
1 A. No, it did not know that.
2 Q. Did the committee question about that?
3 A. The City -- the committee did not receive any evidence on
4 the gender or racial background or breakdown of the detectives
5 who had been promoted.
6 Q. So you don't know that that's true or not true, do you?
7 A. I don't know if that's true or not true, that's correct.
8 Q. Did the committee hear evidence about the attempts to make
9 merit promotions from the 1994 lieutenants test in the McArdle
10 decision?
11 MR. PIELL: Your Honor, at this time we object again
12 on the grounds of relevance as to why a report that was issued
13 in '97 would have any relevance to content validity of a 1994
14 lieutenants exam.
15 MR. FLAXMAN: This is the equally valid less
16 discriminatory alternative.
17 THE COURT: Overruled.
18 THE WITNESS: Could you repeat the question, please?
19 MR. PIELL: Your Honor, then we object again as to
20 the presentation of Mr. Holzhauer at this time to talk about
21 his equally valid alternatives when he said in his opening
22 statement that that would be part of his rebuttal case that we
23 would hear somewhere down the road.
24 THE COURT: Do you want Mr. Holzhauer to take the
25 stand more than once?
32
Holzhauer - direct
1 MR. PIELL: He's available. But we'll go ahead.
2 THE COURT: I think I can segment these in my mind.
3 MR. FLAXMAN: Thank you.
4 BY MR. FLAXMAN:
5 Q. Did the committee learn about the attempts to make merit
6 promotions from the 1994 lieutenants test?
7 A. Yes, it did.
8 Q. Did it learn anything about the racial composition of the
9 people whose promotions were sought by merit?
10 A. I don't recall that it did receive evidence about that.
11 No, I don't think it had evidence on that issue.
12 Q. Okay. Did the committee conclude that written tests placed
13 an unnecessary emphasis on an applicant's ability to memorize
14 written materials such as general orders and other department
15 directives?
16 A. I think the committee concluded that written exams were a
17 legitimate part, but some written exams could have that effect.
18 Q. And that unnecessarily emphasizes an applicant's abilities
19 to memorize written material such as general orders of the
20 department directly, is that right?
21 A. It did say that.
22 Q. And did the committee also conclude that merit promotion --
23 the history of the department, police department merit
24 promotions indicated that the practice had been successful in
25 identifying officers who exhibited excellent leadership
33
Holzhauer - direct
1 qualities?
2 A. That's correct.
3 Q. And did the committee make a recommendation about making
4 rank order promotions?
5 A. I haven't reviewed the report. I don't recall.
6 Q. Isn't there a recommendation in there about an exam being
7 used in other than rank order?
8 A. We talked about, I know, exams being used in banding
9 approaches when that reduced adverse impact.
10 Q. Could I have the exhibit? Let me ask you to look at page
11 5.
12 Do you see the bottom paragraph where it talks about
13 "made a recommendation of other than rank order"?
14 A. Right.
15 "You should consider the use of exam and other rank
16 order to allow for maximum flexibility, highly qualified,
17 qualified, not qualified, or pass-fail."
18 By maximum flexibility, we were really trying to
19 figure out ways to reduce adverse impact.
20 Q. Okay. And then is it fair to say that the committee's --
21 one of the committee's conclusions was that written tests do
22 not adequately measure the critical skills and abilities that
23 are needed for a supervisor?
24 A. If I recall, again, I haven't reviewed the report, but if I
25 recall the report correctly, we never said that written exams
34
Holzhauer - direct
1 should not be used at all. We don't -- we did not believe that
2 written exams should be the entirety of -- the written multiple
3 choice kinds of exams should be the entirety of the process.
4 Q. Did you specifically conclude that by looking at a
5 candidate as a whole, one can identify and test for critical
6 skills and abilities not adequately measured by written tests
7 alone?
8 A. It sounds like you're reading from it. I believe we did
9 say that.
10 Q. Okay. Now, when you did this you were working for the City
11 of Chicago, is that right?
12 A. No.
13 Q. You were appointed by the --
14 A. I was -- we were an independent task force. We weren't
15 employed by or paid by, in any sense, the City of Chicago.
16 Q. You were working at the behest of the mayor of the City of
17 Chicago, is that right?
18 A. We were outside experts making recommendations at the
19 behest of the City of Chicago. We weren't authorized by the
20 City of Chicago to make any kind of -- take positions or make
21 statements on behalf of the City of Chicago.
22 MR. FLAXMAN: Okay, thank you. I have nothing
23 further. Could I have my exhibit.
24 THE WITNESS: Sure. I screwed up the order.
25 CROSS-EXAMINATION
35
Holzhauer - cross
1 BY MR. PIELL:
2 Q. Mr. Holzhauer, you testified earlier about some of the work
3 done by the Blue Ribbon Panel. We're talking about the first
4 panel back in -- the 1990 panel. And you were asked questions
5 about meeting with particular experts. And you answered that
6 you had met with other people in addition to experts.
7 Did you meet with any minority police organizations
8 as part of that Blue Ribbon Panel?
9 A. Yes, we did. We met with organizations of
10 African-Americans, several organizations of African-American
11 police officers, an organization, or a couple of organizations
12 together of Hispanic police officers. We met with
13 organizations of sergeants and lieutenants. We met with a
14 variety of people.
15 Q. Did any of these minority organizations ask that the
16 lieutenant promotions decisions be based in whole or in part on
17 a merit-based system?
18 A. No. They didn't.
19 In fact, the most of the departmental representatives
20 and the minority representatives that came forward to us were
21 extraordinarily opposed to anything that was of subjective
22 natures. They felt subjective decision making processes would
23 likely be unfair.
24 Q. Did any of these minority police organizations express any
25 opinion or position as to whether job performance evaluation
36
Holzhauer - cross
1 should be considered in promotional decisions?
2 A. Yes.
3 MR. FLAXMAN: Let me object. What these people told
4 him is not relevant to anything that's at issue in this case.
5 MR. PIELL: Well, Mr. Holzhauer has been asked to
6 testify in his role as a member of the Blue Ribbon Panel. He
7 was asked a lot of questions about the conclusions made by the
8 Blue Ribbon Panel, work done by the Blue Ribbon Panel. It's
9 certainly fair to ask -- and he asked questions about experts
10 of the Blue Ribbon Panel. He can be asked about other people
11 that the Blue Ribbon Panel met with.
12 THE COURT: It's not being introduced for the truth
13 of the statements, I assume?
14 MR. HOLZHAUER: Correct.
15 MR. PIELL: Correct.
16 MR. FLAXMAN: I don't know why it is being
17 introduced.
18 THE COURT: Therefore, it would only be introduced
19 for the state of mind.
20 MR. PIELL: Correct.
21 THE COURT: The state of mind is really not an issue,
22 because the plaintiff has conceded there is no willful
23 discrimination.
24 However, I'm going to hear these questions, because I
25 think I would like to know what -- you asked for the ultimate
37
Holzhauer - cross
1 conclusions they reached. I think it's helpful for me to know
2 what they did to reach those conclusions, and that's the
3 purpose. So don't belabor it too much.
4 MR. PIELL: We won't go on too long.
5 THE COURT: His state of mind is really not --
6 BY MR. PIELL:
7 Q. There was a question posed, I believe, before the objection
8 as to whether these minority police organizations expressed any
9 opinion or position to the Blue Ribbon Panel about the use of
10 the current job -- job evaluation procedure in place at the
11 Chicago Police Department in promotion decisions?
12 A. One of the many things on which the groups before us
13 appeared virtually unanimous was that the performance
14 evaluation system was unreliable and should not be used in a
15 promotion process.
16 Q. Did the 1990 panel on which you served make any findings
17 that merit promotions were equally valid as a promotion
18 selection procedure to the exam developed by Barrett &
19 Associates for the 1994 lieutenant exam?
20 A. No. We weren't there yet.
21 MR. FLAXMAN: The test was developed after the 1990
22 panel made its conclusion.
23 MR. PIELL: I do apologize. I mixed up the dates.
24 BY MR. PIELL:
25 Q. The subsequent panel on which you served, the 1996-97 task
38
Holzhauer - cross
1 force, did they make any findings that merit promotions were
2 equally valid as a promotion selection procedure to the exam
3 developed by Barrett & Associates for the 1994 lieutenants
4 exam?
5 A. No. We were not aware of any study of the validity of
6 merit promotions or of the impact of them.
7 Q. And did the panel on which you served, the second panel,
8 make any finding that merit promotions were a less
9 discriminatory promotion selection procedure than the exam
10 developed for the 1994 lieutenants exam by Barrett &
11 Associates?
12 A. No, we didn't. As I testified earlier, we certainly
13 thought merit promotion was something that should be tried,
14 that there was merit to merit promotion, that it should be
15 tried. We really didn't know how it would work out. It hadn't
16 been tried yet at that rank.
17 MR. PIELL: That's all I have. Thank you.
18 THE COURT: Thank you.
19 MR. FLAXMAN: I have no redirect.
20 THE COURT: Okay. Thank you, Mr. Holzhauer.
21 THE WITNESS: Thank you.
22 (Witness excused.)
23 MR. FLAXMAN: The pretrial order has exhibits, some
24 of which we agreed to and some of which we disagree to. Are
25 those all admitted into evidence at this stage?
39
Byrd - direct
1 THE COURT: Well, the ones that you've agreed to
2 admit we'll assume are admitted. If you get to the point --
3 and I haven't studied them, you know them better than I do.
4 When you get to the point of a document that hasn't been agreed
5 to, let me know and we'll deal with it as we talked about.
6 MR. FLAXMAN: All right. Doris Byrd -- Sergeant
7 Byrd.
8 THE COURT: Please raise your right hand.
9 (Witness duly sworn.)
10 THE COURT: Please have a seat.
11 DORIS BYRD, PLAINTIFFS' WITNESS, SWORN
12 DIRECT EXAMINATION
13 BY MR. FLAXMAN:
14 Q. Could you state your name, please?
15 A. Doris M. Byrd, B-y-r-d.
16 Q. And what is your business or occupation?
17 A. I'm a Chicago police sergeant.
18 Q. How long -- when did you first start working for the
19 Chicago Police Department?
20 A. January 3rd, 1977.
21 Q. What was your position when you first started?
22 A. I was a patrol officer.
23 Q. And what did you do as a patrol officer?
24 A. I patrolled the streets. I wrote tickets. I had details.
25 General enforcement.
40
Byrd - direct
1 Q. Did you work on the street as a regular beat officer?
2 A. Yes, I did.
3 Q. Did you ever -- when -- did you ever take a test to be a
4 sergeant?
5 A. Yes, I did.
6 Q. When is the first time you did that?
7 A. September 1978.
8 Q. And did you get promoted to be a sergeant from that test?
9 A. No, I did not.
10 Q. When did you get promoted to be a sergeant?
11 A. 1990.
12 Q. Now, from 1977 to 1990, did you work as a police officer?
13 A. Yes, and as a detective.
14 Q. When did you become a detective?
15 A. In 1980.
16 Q. And what kind of work did you do as a detective?
17 A. Initially, I was a sex crimes investigator. Then I was a
18 violent crimes detective. And then I was assigned to the labor
19 relations unit.
20 Q. Now, from 1990 to the present, had you been working on the
21 street as a sergeant?
22 A. Yes.
23 Q. In the course of your work, have you become acquainted with
24 the work that lieutenants do?
25 A. Yes.
41
Byrd - direct
1 Q. How have you learned what lieutenants do?
2 A. Because I've done some of the work as a sergeant.
3 Q. Okay. Have you also seen -- you also -- who supervises
4 sergeants?
5 A. A lieutenant, a field lieutenant.
6 Q. You also become familiar with the work watch commanders do?
7 A. Yes.
8 Q. And how have you become familiar with that work?
9 A. I worked as a desk sergeant.
10 Q. Now, when you took that 1978 test, do you remember what
11 your number was on that test?
12 A. I was 1200.
13 Q. Were you in line to be promoted from that test?
14 A. Yes, I was.
15 Q. Was that as a result of quotas that had been superimposed?
16 A. Yes. It was 60/40; 60 percent white, 40 percent minority.
17 Q. And did you get promoted from that quota?
18 A. No, I did not.
19 Q. What happened?
20 A. Well, a group -- the white women went into court and filed
21 for a separate grouping of women. All the women was taken off
22 the list and put on a separate list. So, therefore, I was --
23 went down on the list.
24 Q. Were there African-American males who had a lower ranking
25 on the test who got promoted to sergeant from that 1978 test?
42
Byrd - direct
1 A. Yes.
2 Q. Did any of them rise to leadership, achieve higher rank in
3 the police department?
4 A. Yes, they did.
5 Q. Any of them become what we call exempt personnel?
6 A. Yes.
7 Q. Could you tell the Judge what an exempt personnel is?
8 A. Exempt personnel is like a commander, a deputy chief or
9 chief, or assistant deputy superintendent.
10 Q. Are the exempt personnel --
11 A. These --
12 Q. I'm sorry.
13 A. These people are appointed by the superintendent of police.
14 Q. And the superintendent can hire them or not -- can assign
15 them to a position and unassign them from the position?
16 A. Yes.
17 Q. They serve at his or her pleasure, is that right?
18 A. Yes.
19 Q. And of those people, do you remember the names of any of
20 those people who scored lower than you did on the sergeants
21 test but got promoted over you because of their quota?
22 A. Yes.
23 Q. Do you remember any? Could you tell us what you recall?
24 MR. PIELL: Your Honor, objection as to relevance as
25 to why we're going to go through a list of people who took a
43
Byrd - direct
1 test back in the '70s, its relevance to the '94 lieutenants
2 exam, and to the extent that testimony like this has already
3 been presented by the plaintiffs in the injunction hearing from
4 Commander Hilbring.
5 THE COURT: We're starting over. The injunction --
6 we're not building on the injunction hearing here. We're
7 starting as if that hearing didn't happen.
8 Can you tell me what the relevance is? And then I'd
9 like you to explain what this lawsuit was that got the lists
10 changed. I'm not quite sure I understand that.
11 MR. FLAXMAN: Well, it might be easier if we agreed
12 what it was rather than try to get it from the witness.
13 THE COURT: Well, tell me.
14 MR. FLAXMAN: It's a matter of record.
15 The 1979 or 1980, there was a 60/40 quota for
16 promotions to sergeant from the existing promotional roster.
17 The Department of Justice and a group of white female police
18 officers intervened and asked that there be a separate female
19 quota. I believe it was a 5 percent female quota.
20 And to effectuate that quota, all of the females,
21 black, white and Hispanic, were taken off of the -- whatever
22 list they had been on before and lumped together with the
23 females. This resulted in two African-American females not
24 being promoted because they were women that would have been
25 promoted if there hadn't been a female quota.
44
Byrd - direct
1 There was a lawsuit -- an attempt to intervene on
2 behalf of Ms. Byrd and the other African-American female. The
3 case was called, I think, Kimber versus City of Chicago. It's
4 reported in a Seventh Circuit decision. This is when Judge
5 Marshall and the Seventh Circuit said intervention was untimely
6 and refused to provide any relief for the African-American
7 women. And this is something that I think could be judicially
8 noticed. But I happen to know it.
9 THE COURT: I wonder how.
10 MR. FLAXMAN: I was there. I was there too late.
11 THE COURT: Okay.
12 MR. FLAXMAN: And where this is going -- this is,
13 well --
14 THE COURT: Is this historical?
15 MR. FLAXMAN: This is historical, yes, this is
16 historical, and it's very short.
17 THE COURT: All right.
18 MR. FLAXMAN: And I'll try to be quicker.
19 BY MR. FLAXMAN:
20 Q. The man named Mike Toliver, did he get promoted to sergeant
21 with a lower score than you did?
22 A. Yes.
23 Q. He's African-American?
24 A. Yes.
25 Q. Was he subsequently appointed to an exempt position?
45
Byrd - direct
1 A. Yes.
2 Q. Did he become commander of public housing?
3 A. Yes.
4 Q. How about Ron Evans?
5 A. Correct.
6 Q. Is he an African-American male promoted to sergeant with a
7 score lower than you?
8 A. Yes.
9 Q. Is he currently the commander of the 7th District?
10 A. Yes, he is.
11 Q. Bill Batts, was he promoted to sergeant with a score lower
12 than yours?
13 A. Yes.
14 Q. Did he become, before his retirement, the commander of the
15 6th District?
16 A. Yes.
17 Q. And those three gentlemen are African-American males?
18 A. Yes, they are.
19 Q. Okay. Now, you took the test that's at issue in this case,
20 the 1994 lieutenants test, is that right?
21 A. Correct.
22 Q. And before taking the test, did you get a copy of the
23 reading list, which was the general orders and special orders?
24 A. Yes, I did.
25 MR. FLAXMAN: And that's Defendant's Exhibit 20,
46
Byrd - direct
1 which we objected to, but are withdrawing our objection.
2 THE COURT: All right. So do you want to admit it at
3 this point?
4 MR. HOLZHAUER: We'll move for admission.
5 THE COURT: Okay.
6 (Defendant's Exhibit 20 received in evidence.)
7 BY MR. FLAXMAN:
8 Q. Defendant's Exhibit 20 is the reading list that you
9 studied, is that right?
10 A. Yes.
11 THE WITNESS: May I get -- I need my glasses.
12 BY MR. FLAXMAN:
13 Q. Is that the reading list that you studied from?
14 A. Yes.
15 Q. And did you study every general order and special order
16 that's on that list?
17 A. Yes.
18 Q. Now, in preparation for your testimony today, did I give
19 you an opportunity to look at what's been marked as pages 283
20 of Defendant's Exhibit 1? And I'll show it to you.
21 A. Yes.
22 Q. That says that it's the linkage chart of test items of
23 major work behaviors?
24 A. Yes.
25 Q. Okay. Now, let me ask you to look at the reading list.
47
Byrd - direct
1 And is general order 80-8 one of the things that you studied?
2 A. 80-8, yes.
3 Q. Okay. Let me show you --
4 MR. FLAXMAN: Now, Judge, we're going to be referring
5 to general orders, which are all in a defendant's exhibit. Is
6 it your pleasure that we mark them separately or refer to them
7 generally?
8 THE COURT: Which exhibit are they in?
9 MR. FLAXMAN: I think it's 6, is that right?
10 MR. PIELL: I believe it's 7.
11 MR. FLAXMAN: 7 is the general orders. We did object
12 to that set because they had the wrong set. But then they
13 produced the right set. So we'd move the admission into
14 evident of Defendant's Exhibit 7.
15 MR. HOLZHAUER: We do not object.
16 THE COURT: Okay.
17 (Defendant's Exhibit 7 received in evidence.)
18 MR. FLAXMAN: Is it adequate if we just refer to them
19 as general order rather than number?
20 THE COURT: Are they in order? Let me try to find
21 it. I'm being -- already, we've just begun this trial, and I
22 can't hold all these exhibits.
23 MR. FLAXMAN: To speed things up, I'll give you mine.
24 THE COURT: Well, I must have it here. I think I
25 have it here. It's just sort of getting it is cumbersome.
48
Byrd - direct
1 MR. HOLZHAUER: Your Honor --
2 MR. PIELL: Your Honor, it's volume 4 of our
3 exhibits.
4 THE COURT: Volume 4?
5 MR. PIELL: Yes. That entire volume, I believe, is
6 this exhibit.
7 THE COURT: That says Exhibit 7 on my copy.
8 MR. PIELL: That's right.
9 THE COURT: Exhibit 7, okay.
10 MR. FLAXMAN: Now, I have extra copies of the ones
11 I'll be referring to. Perhaps I should use them if we just --
12 but I'm hesitant about marking each one separately, but --
13 THE COURT: Well, they're in.
14 MR. FLAXMAN: They're in, all right.
15 THE COURT: They're in evidence. So you can do
16 whatever you want as far as making it easy for the witness to
17 review them.
18 BY MR. FLAXMAN:
19 Q. Let me show you general order 80-8.
20 MR. FLAXMAN: Could I hand these up?
21 THE COURT: Yes, that would be very helpful. I'll
22 give them back to you.
23 MR. FLAXMAN: You can keep them.
24 THE COURT: Or I can keep them.
25 BY MR. FLAXMAN:
49
Byrd - direct
1 Q. Is that one of the general orders that you studied for the
2 test?
3 A. Yes.
4 Q. What's it entitled?
5 A. Watch changes, roll call training.
6 Q. Now, let me ask you to look at that linkage chart, page 283
7 of defendant's exhibit which you have in front of you, Defense
8 Exhibit 1, I think. Is there a question that was linked to
9 general order 80-8?
10 MR. PIELL: Your Honor, objection. This is an
11 exhibit, Exhibit 1, which Mr. Flaxman has objected to. This is
12 not an exhibit prepared by Sergeant Byrd. There is no
13 foundation that has been laid that she even knows what this
14 document is or how it is being used.
15 MR. FLAXMAN: We will withdraw our objection to
16 Exhibit 1, which I think we had agreed to be admitted in the
17 preliminary injunction hearing. I think we're stuck with it.
18 MR. PIELL: Same objection though as to lack of
19 foundation, if she knows how this document is used and what the
20 various charts mean and refer to.
21 THE COURT: Page 283?
22 MR. FLAXMAN: That's correct. And I happen to have
23 an extra copy of that if --
24 MR. PIELL: That's appendix K, Your Honor.
25 THE COURT: And your question is for her to see
50
Byrd - direct
1 whether what?
2 BY MR. FLAXMAN:
3 Q. Look at appendix K. Do you see any question that was
4 linked to general order 80-8?
5 MR. PIELL: The objection remains. He's now admitted
6 this exhibit is part of evidence, it's in. He can argue from
7 it. Dr. Barrett will be here to testify later. He can be
8 asked about it. I don't see that it makes sense to walk
9 through with Sergeant Byrd what is and is not on this list.
10 THE COURT: I'm not even sure I understand the
11 question. Schedule K, or Exhibit K to Exhibit 1.
12 MR. FLAXMAN: It's entitled "Linkage Chart of Test
13 Items to Major Work Behaviors."
14 THE COURT: Right. It has general order 80-18, not
15 80-8. Is that your point?
16 MR. FLAXMAN: Well, the point is that of the first 53
17 questions that are based on general orders, there isn't a
18 question that's based on question 80- -- 80-8.
19 THE COURT: All right. I assume that that's an
20 empirical fact, if it is.
21 MR. PIELL: It is something you can look at the chart
22 and look at the test and probably show that is true. However,
23 it's not relevant to whether this test is content valid or --
24 THE COURT: All right. That we will argue later.
25 But what's the point of asking the witness this
51
Byrd - direct
1 question?
2 MR. FLAXMAN: I want her to tell you that she studied
3 it, and it's not on there. She can answer questions about the
4 order and why she studied it.
5 THE COURT: Well, that certainly I would like to
6 hear. But I'm not sure what she can tell me about Exhibit 1.
7 MR. FLAXMAN: She can tell you it's not there. Maybe
8 we could stipulate it's not there.
9 THE COURT: Well, I'm looking at it. I don't see it.
10 MR. FLAXMAN: It's not there. But I think I want to
11 prove it's not there rather than just my testifying or my
12 arguing it later.
13 THE COURT: Well, is Exhibit 1 in evidence, are you
14 moving it into evidence?
15 MR. FLAXMAN: Yes.
16 THE COURT: Any objection?
17 MR. PIELL: No objection by us.
18 THE COURT: So there it is.
19 (Defendant's Exhibit 1 received in evidence.)
20 THE COURT: So I think I can tell whether or not it's
21 included within Exhibit 1.
22 MR. FLAXMAN: If you think you can, then I'm sure you
23 can.
24 THE COURT: Well, I mean, I'm looking at this linkage
25 chart. I don't see this particular question in it.
52
Byrd - direct
1 BY MR. FLAXMAN:
2 Q. Did you study general order 80-8 for the test?
3 A. Yes.
4 Q. Is there any reason other than it being on the list that
5 you studied it?
6 A. It's something that a lieutenant should know.
7 Q. Okay. Let me ask you to look at general order 86-4. And
8 that's also on the reading list, is that correct?
9 A. That's correct.
10 Q. And that's also not on the linkage chart, is that right?
11 MR. PIELL: Same objection, Your Honor.
12 THE COURT: I'll take it for what it's worth.
13 BY MR. FLAXMAN:
14 Q. It's also not in the linkage chart, is that right?
15 A. Correct.
16 Q. And did you study this order?
17 A. Yes.
18 Q. Why did you study this order?
19 A. It's a possibility as a lieutenant or if you're a watch
20 commander, there may come a time when you will be the acting
21 district commander.
22 Q. Let me ask you to look at general order 88-19. Now, that's
23 on the reading list and it's not on the linkage chart, is that
24 right?
25 MR. PIELL: Objection, leading.
53
Byrd - direct
1 MR. FLAXMAN: Well, I'm trying to speed it up. I
2 will be glad to --
3 THE COURT: I'll let him ask the question. Go ahead
4 BY MR. FLAXMAN:
5 Q. That's on the reading list. It's not on the linkage chart,
6 is that right?
7 A. It's on the reading list. I don't see it on the linkage
8 chart.
9 Q. What does this order deal with?
10 A. Felony review by an assistant state's attorney.
11 Q. Could you -- does the -- how is the assistant state's
12 attorney felony review involved in charging someone with a
13 felony in the Chicago Police Department?
14 A. If there is an arrest made of a felony nature and the
15 detectives are called out, after they do their investigation of
16 it, and if it warrants felony charging, they have to call
17 felony review.
18 Q. Does the felony review state's attorney make the decision
19 about what felony someone should be charged with?
20 A. Yes.
21 Q. Is that decision made by the lieutenant?
22 A. No.
23 Q. Now, you recall that on the written test there were several
24 questions about elements of crimes?
25 A. Correct.
54
Byrd - direct
1 Q. And those decisions -- are those decisions about what
2 elements of crimes, which felony something is -- that's covered
3 by this general order, is that right?
4 A. Correct.
5 Q. Thank you.
6 Let me ask you to look at general order 91-11. Is
7 that on the reading list and not on the linkage list?
8 A. It's on the reading list; not on the linkage chart.
9 Q. And is there any part of this order that's important for a
10 lieutenant to know?
11 A. Yes.
12 Q. And did you study this general order for the test?
13 A. Yes.
14 Q. Let me show you what's been -- what's general order 91-14
15 and ask you if that's on the reading list but not on the
16 linkage list?
17 A. 91-14, it's on the linkage chart.
18 Q. And what question is it linked to?
19 A. No. 34.
20 Q. Now, let me ask you to look at the written test.
21 MR. FLAXMAN: Which I think has been introduced in
22 evidence, or it's been marked and we will now move into
23 evidence as Defense Exhibit 6. No, excuse me. Defendant's
24 Exhibit 14.
25 BY MR. FLAXMAN:
55
Byrd - direct
1 Q. This is the written test that you took, is that correct?
2 THE COURT: Well, is there any objection?
3 MR. PIELL: No objection.
4 (Defendant's Exhibit 14 received in evidence.)
5 BY MR. FLAXMAN:
6 Q. That's the written -- the parties have agreed that's the
7 written test. Could you look at page 34, excuse me, question
8 34.
9 A. Yes.
10 Q. Does question 34 have anything to do with general order
11 91-14?
12 A. No, it does not.
13 Q. What does question 34 ask about?
14 A. It asked about approval from the on-duty assistant deputy
15 superintendent from bureau of operation service regarding
16 incidents of -- and then it has five choices here.
17 Q. And is the correct answer to that question found in general
18 order 91-14?
19 A. No.
20 Q. Now, other than question 34, is there anything else that
21 the linkage chart says is based on general order 91-14?
22 A. Would you repeat that, please.
23 Q. Other than question 34, which we've just talked about as
24 not being based on general order 91-14, is there anything in
25 the linkage chart that the linkage chart says is based on
56
Byrd - direct
1 general order 91-14?
2 A. Repeat that one more time.
3 Q. Other than question 34 on the linkage chart, do you see any
4 other question that appears to be based on question -- on
5 general order 91-14?
6 A. No, I don't.
7 Q. Okay. Now, in addition to general orders of the Chicago
8 Police Department, there is something called special orders, is
9 that right?
10 A. Correct.
11 Q. And special orders are yellow, is that right?
12 A. Yes.
13 Q. What is the difference between a special order and a
14 general order?
15 A. A general order -- I may not get it verbatim -- but a
16 general order is in existence. It's made up -- it's like in
17 existence for a long time.
18 A special order comes out when there is -- oh, I
19 don't remember exactly what they are.
20 Q. Okay.
21 A. I'm not going to mess it up.
22 Q. On the reading list, there are also a list of special
23 orders that you had to study, is that right?
24 A. Yes.
25 Q. And did you study each and every special order?
57
Byrd - direct
1 A. Yes.
2 MR. FLAXMAN: At this time I would move the admission
3 into evidence of Defendant's Exhibit 8, the special orders from
4 1994.
5 MR. PIELL: No objection.
6 (Defendant's Exhibit 8 received in evidence.)
7 BY MR. FLAXMAN:
8 Q. Let me show you special order 78-33. Is that one of those
9 special orders you studied?
10 A. Yes.
11 Q. And is there any question that the linkage chart shows is
12 linked to special order 78-33?
13 A. No.
14 Q. Is there anything in special order 78-33 that you think a
15 lieutenant should know?
16 A. Yes.
17 Q. Okay. Let me show you what's special order 82-18. Is that
18 one of the special orders on the reading list that you studied?
19 A. Yes.
20 Q. Is there any question that you see on the linkage list
21 that's linked to special order 82-18?
22 A. Yes -- I mean, no.
23 Q. Okay.
24 A. There is nothing on here, sorry.
25 Q. Excuse me?
58
Byrd - direct
1 A. No, there is nothing on the linkage chart.
2 Q. Is there anything in special order 82-18 that you believe a
3 lieutenant should know?
4 A. Yes.
5 Let me ask you to look at special order 91, 91-8.
6 Was that special order on the reading list?
7 THE COURT: Wait a minute.
8 Are you asking her whether they were on the reading
9 list or the linkage chart?
10 MR. FLAXMAN: I'm asking both. We're establishing
11 for each one that they're on the reading list and not on the
12 linkage chart. There was one question that was on the linkage
13 chart, but there was a mistake. It was linked to question 34.
14 BY MR. FLAXMAN:
15 Q. Just general order -- special order 91-8 was on the reading
16 list, is that right?
17 A. Yes.
18 Q. And is that one of the special orders that you read to
19 prepare for the exam?
20 A. Yes.
21 Q. And if you look at the linkage list, there are no questions
22 that were based on that special order, is that right?
23 A. No.
24 Q. Okay. Now, do you remember before you testified you had a
25 chance to look over the written test?
59
Byrd - direct
1 A. Yes.
2 Q. And do you remember looking at a question about arrest
3 notification when an employee of the Board of Education is
4 arrested?
5 A. Yes.
6 Q. Was there a question about that special order on the
7 written test?
8 A. Yes, there was.
9 Q. And special order 91-8, what does this refer to?
10 A. City of Chicago employee arrest notification.
11 Q. Is this something that happens to -- in the real world of
12 policing in Chicago?
13 A. Yes, it does.
14 Q. Thank you.
15 Now, let's go back to general, general order, let me
16 ask if general order 79-15 was on the reading list?
17 A. Yes.
18 Q. And what is general order 79-15?
19 A. Patrol field lieutenants.
20 Q. Is this the main order that defines the responsibilities of
21 a patrol field lieutenant?
22 A. Yes, it is.
23 Q. How many questions were linked to general order 79-15, the
24 main order that defines the job of a field lieutenant?
25 A. None.
60
Byrd - cross
1 MR. FLAXMAN: Thank you. I have nothing further.
2 CROSS-EXAMINATION
3 BY MR. PIELL:
4 Q. Good afternoon, Sergeant Byrd.
5 A. Good afternoon.
6 Q. Let me just start a bit with your background.
7 Sergeant Byrd, you've never served as a watch
8 commander in any district, isn't that correct?
9 A. Correct.
10 Q. You've only worked as an acting field lieutenant on two
11 occasions, is that correct?
12 A. That's correct.
13 Q. Sergeant Byrd, you testified before that you saw a copy of
14 the reading list that was published in conjunction with the
15 1994 lieutenants exam?
16 A. That was part of my deposition.
17 Q. Okay. You did see the reading list, correct?
18 A. Yes.
19 Q. And that reading list not only included general orders and
20 special orders, but it also included other directives,
21 ordinances, a copy of the FOP contract, and a copy of the
22 pamphlet from the alternative policing strategy, isn't that
23 correct?
24 A. Correct.
25 Q. And you saw this reading list before the exam was given,
61
Byrd - cross
1 isn't that correct?
2 A. Yes.
3 Q. And so after reading the list you had some idea that the
4 items that were on the reading list would be tested on the
5 exam?
6 A. Yes.
7 Q. Despite this knowledge, you did not go and read all the
8 sections from the Municipal Code that were on the reading list,
9 though, did you?
10 A. No.
11 Q. And despite this knowledge, you did not review the entire
12 FOP contract, even though it was on the reading list, did you?
13 A. No.
14 Q. Despite this knowledge of the reading list, you did not
15 study all of the listed sections of the Illinois Compiled
16 Statutes now, did you?
17 A. No.
18 MR. PIELL: One second, please.
19 (Discussion off the record.)
20 MR. PIELL: Your Honor, that's all we have for
21 Sergeant Byrd.
22 THE COURT: Thank you.
23 MR. FLAXMAN: No redirect.
24 THE COURT: Thank you. You're excused, Sergeant.
25 (Witness excused.)
62
Kimber - direct
1 THE COURT: Please call your next witness.
2 Would you please raise your right hand.
3 (Witness duly sworn.)
4 THE COURT: Have a seat.
5 VANCE KIMBER, PLAINTIFFS' WITNESS, SWORN
6 DIRECT EXAMINATION
7 BY MR. FLAXMAN:
8 Q. Could you state your name and spell your last name.
9 A. Vance Kimber, K-i-m-b-e-r.
10 Q. And what is your business or occupation?
11 A. My occupation, I'm a sergeant of police with the Chicago
12 Police Department.
13 Q. How long have you worked for the Chicago Police Department?
14 A. I've been employed by the Chicago Police Department since
15 1970.
16 Q. What capacity did you start as?
17 A. In 1970, I was hired as a police cadet with the Chicago
18 Police Department. In 1973, I was appointed to patrolman. And
19 in 1985, I was appointed to sergeant.
20 Q. And what is your present assignment as a sergeant?
21 A. I'm currently assigned to the management and labor affairs
22 section of the Chicago Police Department.
23 Q. What is that? What do you do in that capacity?
24 A. I represent the City at arbitration hearings of discipline
25 cases. I interpret the contract for supervisors and
63
Kimber - direct
1 management.
2 Q. When you say you "interpret the contract," what contract
3 are you talking about?
4 A. The FOP contract which the City currently has with
5 Fraternal Order of Police.
6 Q. Is that the same FOP contract that was on the reading list
7 for the lieutenants test?
8 A. Yes, it is.
9 Q. Before testifying today, did you have a chance to look at
10 the questions you got wrong on the 1994 lieutenants written
11 test?
12 A. Yes, I did.
13 Q. Did you get any of those questions wrong about the FOP
14 contract?
15 A. No, I did not.
16 Q. Do you ever -- for whom do you answer questions about the
17 FOP contract in the course of your everyday work?
18 A. My job consists of answering questions from the
19 superintendent's office, deputy superintendents, command
20 personnel, which would be lieutenants and exempt members of the
21 police department, and lieutenants and sergeants that are
22 assigned to districts.
23 Q. Now, before working in management and labor affairs, did
24 you work on the street?
25 A. Yes, I did.
64
Kimber - direct
1 Q. How long did you work on the street?
2 A. I worked on the street from 19 -- from appointment as a
3 patrolman, I worked in the 2nd District. I worked in human
4 relations, which is hate and bias crimes. I worked -- as a
5 sergeant I worked in the 3rd District, the 11th District and
6 the 12th District as a sergeant.
7 Q. And in the course of your work for the Chicago Police
8 Department, have you become acquainted with the work that
9 lieutenants do?
10 A. Yes, I have.
11 Q. Have you become acquainted with the work that watch
12 commanders do?
13 A. Yes, I have.
14 Q. Now, do you know how many lieutenants there are in the
15 Chicago Police Department now working as lieutenants?
16 A. In the rank of lieutenant, approximately 252.
17 Q. In addition to lieutenants, the rank of lieutenant, there
18 is also exempt people, is that right?
19 A. That's correct.
20 Q. Does that 252 number include or not include the people in
21 the rank of lieutenant who are in exempt positions?
22 A. It does not include the exempt personnel.
23 Q. Of those 252 nonexempt lieutenants, how many are
24 African-American?
25 A. There are 29 currently; one female, 28 males.
65
Kimber - direct
1 Q. Of the -- and how many exempt are there?
2 A. Approximately 92, 95, I believe the number is.
3 Q. And the exempt people, is it fair to say that those are
4 selected by merit by the superintendent?
5 A. Correct.
6 Q. And of course --
7 THE COURT: When you say "exempt people," you mean
8 lieutenants?
9 MR. FLAXMAN: Well, let's go back.
10 BY MR. FLAXMAN:
11 Q. To be an exempt person, do you have -- are any of those
12 exempt personnel people who hold the civil service -- career
13 service rank of lieutenant?
14 A. Yes.
15 MS. DORN: Your Honor, object to this line of
16 questioning. This really is not a case about intentional
17 discrimination. That is what this line of questioning is
18 getting at. I think it's irrelevant.
19 THE COURT: Overruled.
20 BY THE WITNESS:
21 A. To be an exempt member of the police department, you don't
22 even have to be a police officer. Some exempt members are
23 civilians, appointed.
24 Most -- and all of the current exempt members of the
25 police department that are police officers are currently
66
Kimber - direct
1 exempt. We have in the past, though, have had sergeants serve
2 as exempt members of the Chicago Police Department.
3 BY MR. FLAXMAN:
4 Q. I think except -- let me just -- all of the present exempt
5 members who are police officers hold what career service rank?
6 A. Their career service rank is either lieutenant or captain.
7 Q. And captain is a rank that's no longer tested for or
8 promoted to?
9 A. Correct.
10 THE COURT: So of the 95 exempt people, are they all
11 -- they're all lieutenants and captains?
12 THE WITNESS: Correct.
13 BY MR. FLAXMAN:
14 Q. Of those 95 who are lieutenants and captains, how many of
15 those are minorities?
16 A. Approximately 18.
17 Q. Now, in addition to being one of the plaintiffs in this
18 case and working in management and labor affairs, you're also
19 the president of the Guardians?
20 A. That is correct.
21 Q. Could you tell us what the Guardians is?
22 A. The Guardians is an African-American police organization
23 made up of males, females and retired police officers, as well
24 as sworn police officers assigned to the Chicago Police
25 Department.
67
Kimber - direct
1 Q. Is it fair to say that in the course of your work for the
2 department and for the Guardians, you've become knowledgeable
3 about the employment practices of the Chicago Police
4 Department?
5 A. Yes, I have.
6 Q. Have you ever testified for the City of Chicago about those
7 employment practices?
8 A. I've testified at a deposition regarding the employment
9 practices.
10 Q. Did you testify -- did the City of Chicago ask you to
11 testify?
12 A. Yes, it did.
13 Q. You testified as the City's witness?
14 A. Yes, I did.
15 Q. Were you testifying about employment practices?
16 A. About previous discrimination on the police department.
17 Q. Now, are you familiar with merit promotions to the rank of
18 detective?
19 A. Yes, I am.
20 Q. How are you familiar with that?
21 A. Through being employed by the Chicago Police Department and
22 watching the various detectives being promoted meritorious.
23 Q. Are minorities better represented on the merit promotions
24 to detective than they are on those promoted from the written
25 test?
68
Kimber - direct
1 A. Yes.
2 Q. Now, you took the 1994 lieutenants test, is that right?
3 A. That's correct.
4 Q. And in the course of taking it, you dealt with what's been
5 -- well, what I will now move the admission into evidence of --
6 it's been marked as Defendant's Exhibit 15, which is the
7 in-basket test?
8 THE COURT: Any objection?
9 MS. DORN: No objection.
10 I believe it's 16, Your Honor.
11 MR. FLAXMAN: I think 16 is the oral.
12 MR. HOLZHAUER: So you're withdrawing your objection?
13 MR. FLAXMAN: Yes.
14 THE COURT: 15 is admitted.
15 (Defendant's Exhibit 15 received in evidence.)
16 BY MR. FLAXMAN:
17 Q. Could you describe for us what that exercise, the in-basket
18 exercise consisted of, what you had to do when you took it?
19 A. When you took the in-basket test for the lieutenants exam,
20 you had to take the series of papers that they had listed. And
21 you had to turn around and put them in organized order. You
22 were in a classroom. We had to use -- you had to put your
23 papers really on the floor, there was not enough room, to do
24 all the paperwork.
25 And they gave you a time limit in which to organize
69
Kimber - direct
1 your paperwork. I think it was two hours. I can't remember
2 the exact time limit.
3 Q. Then after you organized the papers, did you have to answer
4 60 multiple-choice questions?
5 A. Yes, you did.
6 Q. There was a time limit for those questions?
7 A. That's correct.
8 Q. Had you ever seen a lieutenant in the Chicago Police
9 Department do anything at all like any of the tests on that
10 in-basket test?
11 A. No, I have not.
12 Q. Did you ever see a lieutenant having to organize 123 pieces
13 of paper?
14 A. No.
15 Q. Ever see a lieutenant having to answer multiple-choice
16 questions?
17 A. No.
18 Q. Let me have that one back.
19 Did you also take the oral examination component of
20 the 1994 lieutenants test?
21 A. Yes, I did.
22 Q. Do you recall what that was about?
23 A. You went into a classroom, a proctor, I'll just say, gave
24 you brief instructions, and you spoke into a tape recording
25 regarding -- you read, you read some material. And you gave a
70
Kimber - direct
1 presentation, after reading the material, as to a roll call
2 presentation about a gang, I believe it was, and what colors
3 they wore.
4 They gave you 15 minutes, as I recall, to give this
5 presentation.
6 MR. FLAXMAN: At this time, Judge, I would move the
7 admission into evidence of Defendant's Exhibit 16, the oral
8 examination booklet.
9 MS. DORN: No objection.
10 THE COURT: It will be admitted.
11 (Defendant's Exhibit 16 received in evidence.)
12 MR. FLAXMAN: This apparently is -- schedule Y is
13 what I have.
14 THE COURT: Please either talk off the record.
15 MR. FLAXMAN: Sorry, I'm sorry.
16 THE COURT: Or talk to the record.
17 MR. FLAXMAN: I'm sorry.
18 I don't think this is a correct exhibit, Judge. So
19 could we have a minute to be sure?
20 THE COURT: The one in the book here, you mean?
21 MR. FLAXMAN: Yes.
22 Could we have a minute so I could confer with my
23 opponent?
24 THE COURT: Sure.
25 (Discussion off the record.)
71
Kimber - direct
1 MR. FLAXMAN: All right. We have agreed that this is
2 incorrectly xeroxed. We will be substituting the correct.
3 BY MR. FLAXMAN:
4 Q. Let me show you what has been introduced in evidence as
5 Defendant's 16. Is that part of the oral exam?
6 A. Yes, it is.
7 Q. Now, have you observed Chicago police lieutenants give oral
8 presentations to police officers and sergeants?
9 A. They do not give oral presentations like the oral exam that
10 is given here.
11 Q. Well, what kind of oral presentations do police lieutenants
12 make to police officers?
13 A. Lieutenants make presentations in the field units, the
14 districts.
15 The presentations that they make is made from written
16 material that they receive from the commander's office or the
17 teletypes or information of special orders and general orders.
18 And this information is disseminated at roll call. It is read
19 to the patrol officers and the sergeants.
20 Q. Well, for that oral examination that's before you,
21 Defendant's 16, did you have to give a speech based on
22 materials you read?
23 A. That is correct.
24 Q. And do lieutenants ever have to do that, summarize
25 information like that?
72
Kimber - direct
1 A. Lieutenants that I observe have never had to summarize
2 information and give a speech at a presentation of a roll call
3 such as this exam as given.
4 Q. In the course of your work as a sergeant, have you ever
5 been out in the field?
6 A. Yes, I have.
7 Q. Have you ever been into a watch commander's office?
8 A. Yes, I have.
9 Q. How has that come up in your work?
10 A. My commander is assigned at various times as the street
11 deputy, we call it the street deputy. That is street
12 terminology. His assignment is assistant superintendent acting
13 at various times throughout the year.
14 What that entails is that he rides and controls the
15 city as in charge, basically. I am -- I serve as his driver.
16 And during those times, we have been in every watch commander's
17 office in every district, in fact. We serve a 10-hour shift.
18 We ride a 10-hour shift throughout the 25 districts throughout
19 the city.
20 Q. So you've been in every watch commander's office?
21 A. Every watch commander's office. In fact, that was what we
22 did one tour. We went to every single district.
23 Q. And in every watch commander's office did you see a set of
24 general orders?
25 A. Every watch commander's office that I can recall had not
73
Kimber - cross
1 only one set, if I recall, I think they had two. I know they
2 had one set, one complete set of general orders.
3 Q. Did you ever observe any watch commander's office that was
4 poorly lit?
5 A. No, I did not.
6 Q. Did you ever observe any watch commander's office that was
7 hectic?
8 A. No, I did not.
9 Q. Any that was noisy?
10 A. No, I did not.
11 Q. And is there a general order that requires that there be a
12 set of general orders available 24 hours a day in each police
13 station?
14 A. Yes, it is.
15 MR. FLAXMAN: Thank you. I have nothing further.
16 THE WITNESS: Excuse me, counsel. Do you want this?
17 MR. FLAXMAN: Oh, thank you.
18 THE COURT: Any questions?
19 MS. DORN: Yes, yes, Your Honor.
20 THE COURT: Your witness.
21 CROSS-EXAMINATION
22 BY MS. DORN:
23 Q. Good afternoon, sir.
24 A. Good afternoon, counsel.
25 Q. Just a few questions.
74
Kimber - cross
1 Sergeant Kimber, I believed you testified on direct
2 that you had an opportunity to observe how the City's merit
3 selection process works with respect to detectives versus
4 lieutenants. And you said that it had a positive effect with
5 respect to detectives, is that correct?
6 A. I believe the question was it had a positive effect as
7 regards African-Americans as detectives as opposed to
8 African-Americans as lieutenants.
9 Q. You stated that minorities were better represented as
10 detectives?
11 A. To the best of my knowledge.
12 Q. And what did you mean by that? Can you give me some
13 numbers in terms of the representation?
14 A. Based on -- I do not have any hard statistical numbers, I'm
15 sure the City can supply them -- but based on my information
16 from my membership, African-Americans are better represented in
17 the detective division because they have been promoted to
18 detective on a meritorious basis.
19 Q. So the answer is you don't have any hard statistical
20 information, is that correct?
21 A. My hard statistical numbers come from my membership, which
22 I know from talking to 500 members that we have more
23 African-American detectives than we have African-American
24 sergeants and lieutenants based on a percentile basis.
25 Q. And the police department also has more detectives in
75
Kimber - cross
1 general than it has sergeants and lieutenants, does it not?
2 A. I said on a percentile basis. On a percentage basis there
3 are more African-Americans as detectives as opposed to
4 sergeants.
5 Q. Sergeant Kimber, I believe you testified on direct that you
6 had served as -- your commander has served periodically as a
7 street deputy, and when he does that, you were assigned to work
8 with him as a street deputy. Is that correct?
9 A. That is correct. I'm assigned to drive him.
10 Q. Now, you said that you've done that around 25 times?
11 A. No. I did not give a number.
12 Q. How many times have you done that?
13 A. Five.
14 Q. So five times total, you've worked with your commander when
15 he served as street deputy?
16 A. That is correct. To the best of my knowledge, it's been
17 about five.
18 Q. In the course of those five times, you've gone to every
19 single district in the Chicago Police Department?
20 A. In fact, during one tour of duty, that's what we did. Our
21 tours is 10 hours. So what we did is we started out on the
22 north side and went to all 25 districts.
23 Q. Okay. So that's 10 hours per time?
24 A. 10 hours each shift.
25 Q. 25 districts, though, in the Chicago Police Department,
76
Kimber - cross
1 that's correct?
2 A. That's correct.
3 Q. And you said that while you were serving with the
4 commander, you had had an opportunity to see that there were
5 general orders, special orders, and other police department
6 materials in every single district, is that correct?
7 A. In 25 districts that we went in. We went into every watch
8 commander's office.
9 The question was -- on the direct was: Did we go
10 into watch commander's offices and observe general orders? And
11 my answer was yes.
12 Q. Okay. But you don't know, though, Lieutenant, if those
13 general orders and special orders were complete, do you?
14 A. To the best of my knowledge, I do not know.
15 Q. Okay.
16 A. You've promoted me, though. I'm a sergeant.
17 Q. I'm sorry. I'll keep you a sergeant.
18 You've also talked about the oral briefing exercise
19 on direct?
20 A. That is correct.
21 Q. And you claim that the oral briefing exercise is not like
22 the job of lieutenant because you've seen lieutenants at roll
23 call read from tapes as opposed to putting together materials,
24 is that correct?
25 A. Correct.
77
Kimber - cross
1 Q. However, you would agreed with me, wouldn't you, in the
2 Chicago Police Department that it's appropriate to test
3 candidates on their ability to use oral skills, is that
4 correct?
5 A. That is correct.
6 Q. And would you agree that a lieutenant should be able to
7 review information and orally present that information to his
8 subordinates in a logical and clear manner?
9 A. Yes, I would.
10 Q. And would you agree that a lieutenant should be able to
11 present the correct information orally after review of
12 information?
13 A. Would he receive incorrect information?
14 Q. Well, after looking at the materials, shouldn't the
15 lieutenant be able to put it together and present it to his
16 people correctly, is that right?
17 A. I'm sorry, I don't understand the question. When you mean
18 "correctly," how do you mean?
19 Q. I'll withdraw the question.
20 Isn't it true that in today's police department it's
21 essential for lieutenants to be able to communicate effectively
22 with the public?
23 A. That's any police officer, yes.
24 Q. Okay. But also lieutenants, correct?
25 A. Correct.
78
Kimber - cross
1 Q. And in terms of oral communication, don't lieutenants make
2 presentations to community groups at community meetings?
3 A. Yes, they do.
4 Q. And are there also times when lieutenants have to review
5 information and give clear instructions to their subordinates,
6 is that correct?
7 A. That is correct.
8 Q. So is it your testimony that lieutenants only orally
9 communicate information or directions by reading verbatim the
10 information out of a CO book or off a tape?
11 A. I'm sorry, repeat that. You say "a tape." Repeat the
12 question, I'm sorry.
13 Q. Is it your testimony that lieutenants only orally
14 communicate information by reading verbatim that information
15 from a CO book or from a tape?
16 A. Well, they don't -- no lieutenants have a tape to read
17 from. So when you say "tape," I'm a little confused.
18 Q. Well, strike the tape. From the CO book?
19 A. Okay. No.
20 Q. No.
21 Lieutenants put information together on their own and
22 present it orally, is that correct?
23 A. I have not seen a lieutenant put together information other
24 than what he receives from a commander or a superintendent or
25 any administrative office put together. And then he deciphers
79
Kimber - cross
1 the information and gives it out.
2 Q. Okay, Sergeant. Let's go to the in-basket exercise.
3 Is it your testimony that the in-basket exercise is
4 not like the job of lieutenant, because the information --
5 because, first of all, the in-basket exercise contained a
6 series of papers requiring you -- you are required to organize
7 in some manner within a short time period, and lieutenants
8 don't do that?
9 A. I think my testimony on direct was that it contained not
10 only a series of paper, but 120 copies of sheets of paper, who
11 I have never seen a lieutenant in a district put together 120
12 copies of sheets of paper and try to give a presentation on it.
13 Q. Okay. Would you agree with me, though, that the in-basket
14 exercise required you to review arrest reports for accuracy and
15 completeness?
16 A. If you can show me, do you have a copy of -- I can't recall
17 from memory whether the in-basket had the arrest report on it.
18 If you show it to me, I can testify.
19 Q. Okay, okay. If I tell you that the in-basket review
20 exercise required the review of arrest reports for accuracy and
21 completeness, would you agree that that is something that a
22 watch commander does in serving as lieutenant?
23 A. A watch commander does approve arrest slips, that is
24 correct.
25 Q. All right. If I tell you the in-basket exercise required
80
Kimber - cross
1 candidates to review documents regarding a weapons discharge
2 incident, would you agree with me that that is something that a
3 watch commander does as a lieutenant?
4 A. If it was contained on the -- I'm sorry. Repeat the
5 question.
6 Q. Do watch commanders as lieutenant review documents
7 regarding a weapons -- regarding weapons discharge incidents?
8 A. Watch commanders usually put together the report. They
9 make a report regarding the weapons discharge incident.
10 If you could show me the copy in the in basket, maybe
11 I can reference -- because your reference just goes to the
12 in-basket test itself, not what an actual lieutenant does, am I
13 correct?
14 Q. That's correct. That's correct, Sergeant.
15 A. Okay. Can I see a copy of it to refresh my memory and what
16 question you are referring to?
17 (Discussion off the record.)
18 BY MS. DORN:
19 Q. We're going to try to speed this along. So I'll just ask
20 you questions about what lieutenants do and you can tell me
21 whether or not I'm right when I say that they do these things.
22 Would you agree that lieutenants review documents
23 regarding weapons discharge incidents, yes or no?
24 A. Yes.
25 Q. Would you agree that lieutenants review documents regarding
81
Kimber - redirect
1 complaint register investigations, yes or no?
2 A. Yes.
3 Q. Would you agree that lieutenants review documents regarding
4 summary punishment report forms, yes or no?
5 A. Yes, I do.
6 Q. And would you agree that lieutenants review documents
7 regarding manpower scheduling issues, yes or no?
8 A. Yes.
9 (Discussion off the record.)
10 MS. DORN: I have nothing further.
11 THE COURT: Thank you. Any redirect?
12 MR. FLAXMAN: Very briefly.
13 REDIRECT EXAMINATION
14 BY MR. FLAXMAN:
15 Q. Let me ask you to look at general order 93-4, which is part
16 of the exhibit general order.
17 THE COURT: Mr. Flaxman, when you do that, try to get
18 them a little closer.
19 MR. FLAXMAN: I'm sorry.
20 BY MR. FLAXMAN:
21 Q. Section 3-C-2 is where I would like you to direct your
22 attention.
23 A. Okay, counsel. I found it. Page 2 it's on page 2, 3-C-2.
24 Q. Right. Now, does this general order contain the directive
25 of the Chicago Police Department about general orders, complete
82
Kimber - redirect
1 sets of general orders being in districts?
2 A. What it -- yes, it does, because it lists, "Every unit will
3 maintain at least one set of general orders and department
4 special orders and department notices and the bureau and
5 division directives."
6 Q. And does it say anything about whether they shall be
7 available to members?
8 A. In fact, it also says that, "The districts will maintain
9 two sets of such directives. One set will remain accessible to
10 all members on a 24-hour basis."
11 And the only --
12 Q. Go ahead.
13 A. And the only office that is maintained on a 24-hour basis
14 where a set of general orders would be maintained would be in a
15 watch commander's office due to his responsibilities.
16 Q. Is this general order consistent with what you observed
17 when you were touring the city?
18 A. Yes. Not only touring the city, I served as a watch
19 commander in communications for over a year, for about a year,
20 year and a half. As a sergeant I was assigned as a watch
21 commander because we did not have a lieutenant. And we also
22 kept a set of general orders in our -- in the watch commander's
23 office at that time which I served in as a watch commander.
24 Q. Was that a complete set of general orders?
25 A. It was a complete set of general orders.
83
Kimber - redirect
1 MR. FLAXMAN: Thank you. Nothing further.
2 THE COURT: Anything?
3 MS. DORN: Nothing further.
4 THE COURT: Okay. You're excused, Sergeant. Thank
5 you very much.
6 THE WITNESS: Thank you.
7 (Witness excused.)
8 Let's take our lunch break. Be back in about an
9 hour.
10 MR. HOLZHAUER: Okay.
11 MR. FLAXMAN: My next witness is coming at 2:00.
12 THE COURT: 2:00? All right. Be back at 2:00.
13 Remember, we're quitting at 4:00 today. But this is going
14 fast. Okay. See you after lunch.
15 (Recess at 12:30 p.m. until 2:00 p.m.)
16
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19
20
21
22
23
24
25
84
1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3 ERNEST T. BROWN, et al., )
)
4 Plaintiffs, )
) No. 95 C 1890
5 v. ) Chicago, Illinois
) November 18, 1997
6 CITY OF CHICAGO, ) 2:00 p.m.
)
7 Defendant. )
8
9 TRANSCRIPT OF PROCEEDINGS - TRIAL
10 BEFORE THE HONORABLE ROBERT W. GETTLEMAN
11 APPEARANCES:
12 For the Plaintiffs: KENNETH N. FLAXMAN, P.C.
122 South Michigan Avenue
13 Chicago, Illinois 60603-6107
BY: MR. KENNETH N. FLAXMAN
14
FUTTERMAN & HOWARD, CHTD
15 122 South Michigan Avenue
Chicago, Illinois 60603
16 BY: MR. CRAIG B. FUTTERMAN
17 For the Defendant: MAYER, BROWN & PLATT
190 South LaSalle Street
18 Chicago, Illinois 60603
BY: MR. JAMES HOLZHAUER
19 MR. JEFFREY S. PIELL
MS. ANGELA K. DORN
20 MR. ANDREW NICELY
21
22 Official Court Reporter: JENNIFER S. COSTALES, CSR, RMR
219 South Dearborn Street
23 Room 1744-A
Chicago, Illinois 60604
24 (312) 427-5351
25
85
Bishop - direct
1 (Proceedings heard in open court.)
2 THE COURT: Please be seated, folks. From now on,
3 figure an hour break for lunch. Okay.
4 MR. FLAXMAN: Our next witness, your Honor, is Edwin
5 Bishop.
6 (Witness sworn.)
7 EDWIN BISHOP, PLAINTIFFS' WITNESS, DULY SWORN
8 DIRECT EXAMINATION
9 BY MR. FLAXMAN:
10 Q. Could you state your name for us, please.
11 A. Edwin Bishop.
12 Q. Is that B-I-S-H-O-P?
13 A. Yes, it is.
14 Q. What's your present business or occupation?
15 A. I'm a retired police officer.
16 Q. And did you work as a Chicago police officer?
17 A. Yes.
18 Q. When did you start working for the Chicago Police
19 Department?
20 A. The 18th of September, 1961.
21 Q. And what was your position when you started?
22 A. Police officer.
23 Q. What did you do as a police officer?
24 A. After recruit school, I worked first in traffic, then in
25 riding a three wheel motorcycle in what was called Traffic
86
Bishop - direct
1 Area 2 at 9059 South Cottage Grove.
2 Then I worked in beat cars in the 21st District,
3 worked on the desk and in the lockup in the 21st District.
4 Then I transferred to the 3rd District, where I did the same
5 thing.
6 In 1966, the early part of 1966 I was promoted to
7 detective.
8 Q. And what did you do as a detective?
9 A. I was a burglary detective, again in Area 2, for about
10 two years. A little over two years.
11 Q. And when you stopped being a detective, what -- why did
12 you stop being a detective?
13 A. I was promoted to sergeant in, I believe, February of
14 1968, and was first assigned to the task force in Area 2 until
15 I transferred to what was called gang intelligence. We were
16 headquartered at 11th and State. We stayed there for about
17 two years.
18 I then went to the 3rd District for a couple of
19 months, and then to the 11th District as what was called a CR
20 sergeant.
21 Q. Was this work that you did as a police officer and a
22 sergeant work outside in the field as opposed to inside in the
23 office?
24 A. Yes.
25 Q. Did you ever achieve a rank higher than sergeant?
87
Bishop - direct
1 A. Yes.
2 Q. When was that?
3 A. I was promoted to lieutenant in the early part of 1976,
4 and then to executive assistant to the superintendent of
5 police in December of 1983.
6 And my final civil service rank was captain, and I
7 was promoted to that rank in either '84 or '85.
8 Q. Did you ever work as a field lieutenant?
9 A. Yes.
10 Q. Did you ever work as a watch commander?
11 A. Yes.
12 Q. When you were the executive assistant to the
13 superintendent, what did you do?
14 A. Well, there were a lot of things. I reviewed all
15 sustained -- one of the duties was reviewing all sustained CR
16 numbers and making recommendations to the superintendent.
17 I attended a number of meetings on the
18 superintendent's behalf as the department's legal officer. I
19 served on a lot of committees.
20 I conferred daily with the people in the corporation
21 counsel's office. The officers who worked for me received
22 subpoenas that were served upon the police department and
23 passed them out to the members.
24 There were just many other things.
25 Q. Now, the executive assistant is what's known as an exempt
88
Bishop - direct
1 position?
2 A. Yes. It is.
3 Q. Could you briefly tell us what exempt positions are?
4 A. Those are the positions appointed by the superintendent
5 of police, and you hold them at the pleasure of the
6 superintendent. If he decides to demote you, then you revert
7 back to your civil service position.
8 Q. Aside from holding the exempt position of executive
9 assistant, did you hold any other exempt positions?
10 A. Yes. I was the assistant deputy superintendent in charge
11 of Internal Affairs for about a year. I was a street deputy,
12 also an assistant deputy superintendent's position for about
13 three months, maybe four months. And I was a deputy chief of
14 patrol for Area 2 for a little over three years. And my last
15 assignment, I was a deputy superintendent for staff services,
16 and that was for two years.
17 Q. You talked about being a street deputy. What does a
18 street deputy do?
19 A. The street deputy is out on the street and is responsible
20 for responding to major situations in the city, taking charge
21 of those situations until the patrol division people can come
22 on to the scene. In some instances, the street deputy stays
23 in command until the situation is over.
24 As the eyes and ears of the superintendent, the
25 street deputy visits the district stations, goes to roll
89
Bishop - direct
1 calls, confers with watch commanders. He's a conduit of
2 inquiries and complaints from the field and provides the
3 people in the field who asks those questions with the
4 answers.
5 Q. In the course of your work as a street deputy, did you
6 have occasion to go into the districts?
7 A. Yes.
8 Q. There are 25 districts?
9 A. Yes.
10 Q. Each district has a watch commander's office?
11 A. Yes, it does.
12 Q. Have you been in every watch commander's office?
13 A. I don't know about every, but I've been in most of them.
14 I would say out of the 25, 20 to 23.
15 Q. Of those 20 to 23 that you were in, was there a copy of
16 the general orders and special orders in each watch
17 commander's office?
18 A. I didn't look all of the time, but there is supposed to
19 be. There is a general order that requires that two copies of
20 general orders, special orders and department notices be
21 maintained in each district station, and that one copy be
22 available to the officers assigned to that station 24 hours a
23 day. And that typically is kept in the watch commander's
24 office.
25 Q. When you worked as a lieutenant, or ranks higher, did you
90
Bishop - direct
1 ever have occasion to look things up in the general orders?
2 A. Yes.
3 Q. Were you able to find the answer to your question in the
4 general order?
5 A. Yes.
6 Q. Did you ever have occasion, when you needed to know the
7 answer about a rule or regulation, to consult with someone
8 else in the police department?
9 A. Yes.
10 Q. Are there, in fact, specialized areas in the police
11 department that answer specialized questions?
12 A. I wouldn't characterize them as that. I mean, you can go
13 to people who are specialists and ask them questions. They're
14 not their sources of information, but because of their
15 specialty, they might have -- they have the specific
16 knowledge.
17 Q. Was there a key person to answer specific questions about
18 landlord-tenant problems at one time?
19 A. I was that person.
20 Q. And did people consult you about questions?
21 A. The -- I believe it was the metropolitan tenants'
22 organization -- this was after the city passed the ordinance
23 that's still in effect -- had a number of complaints from
24 tenants about the police department not enforcing the
25 ordinance properly. Many of the police officers simply didn't
91
Bishop - direct
1 know.
2 And after meeting -- I was a part of the committee
3 that met with these people over -- if my memory serves me
4 correctly, several weeks, and the solution was that the
5 complaints that the metropolitan tenants' organization
6 received would be forwarded to me, and then I would call the
7 watch commander and explain to him -- it was him, at that time
8 we didn't have any females, how to correctly have the problem
9 resolved.
10 Q. And aside from you with that specialized knowledge about
11 the landlord tenant, is there somebody to call with a question
12 in the police department about the collective bargaining
13 agreement?
14 A. Yes. The management and labor affairs section.
15 Q. Now, to get promoted to sergeant, lieutenant and captain,
16 did you have to take a promotional test?
17 A. Yes. A written examination.
18 Q. And did you study for each of those written examinations?
19 A. Yes, I did.
20 Q. Could you briefly tell us how you studied?
21 A. Well, in the first examination to sergeant -- actually
22 the first one was detective, but -- I think I just took it. I
23 read the orders for that.
24 But the sergeant I had kind of a plan. I read all
25 of the general orders, excerpted from the general orders is a
92
Bishop - direct
1 finite amount of information about the duties of sergeant, so
2 I took that out. And then I collected a number of questions.
3 There are test books that have questions about prior police
4 exams from all over the country. And I think I conservatively
5 went through 5,000 questions. And so at the time of the exam,
6 I felt that I was proficient.
7 I also read a booklet about how to take a multiple
8 choice exam. So at the time of the exam I felt confident that
9 I knew it, and out of the 5,000 or so people who passed, I was
10 number 46.
11 Q. When you studied for lieutenant, did you pick out the
12 general orders that stated a lieutenant is responsible for and
13 concentrate on that section of the order?
14 A. Yes.
15 THE COURT: Are you just talking about the
16 sergeant's exam?
17 THE WITNESS: Yes, sir.
18 BY MR. FLAXMAN:
19 Q. You took the lieutenant's test in 1977; is that right?
20 A. No, I think it was 1974, '75. I was promoted in '76.
21 Q. And that was before there was any court orders about
22 quotas or anything?
23 A. Yes.
24 Q. For promotions?
25 A. For promotions, yes.
93
Bishop - direct
1 Q. When you studied for that lieutenant's test, you studied
2 general orders; is that right?
3 A. General orders, special orders and notices. The exam had
4 been changed to be more job-related.
5 Q. When you picked out which general orders -- well, when
6 you picked out the general orders to study, did you look for
7 those that said a lieutenant is responsible for, and then
8 study that section?
9 A. Yes.
10 Q. And did you look for those instead of watch commander is
11 responsible for and then study that section?
12 A. No. Because at that time captains were watch commanders,
13 and so there were no questions on the exam about the duties of
14 a watch commander.
15 Q. Later did you take a captain's exam?
16 A. Yes.
17 Q. And when you took the captain's exam, did you study the
18 questions of general orders that dealt with watch commander's
19 responsibility?
20 A. Yes.
21 Q. Now, in the course of preparing for your testimony here
22 today, did you get a chance to look at what I told you was the
23 1994 police lieutenants' written examination?
24 A. Yes, I did.
25 Q. And did you go through the 150 questions?
94
Bishop - direct
1 A. Yes, I did.
2 Q. Before we get to the questions, there was a time when you
3 took a leave from the police department in like -- about 1980;
4 is that right?
5 A. Yes.
6 Q. What did you do during that leave?
7 A. I served -- worked as an assistant state's attorney in
8 Cook County. I had passed the bar exam in '79 and took a
9 leave.
10 Q. Did you go to law school while you were working as a
11 police officer?
12 A. Yes. DePaul University.
13 Q. And you're still a licensed attorney in the State of
14 Illinois?
15 A. Yes, I am.
16 Q. Let me ask you to look at --
17 MR. FLAXMAN: Does your Honor have the plaintiffs'
18 exhibit book?
19 THE COURT: I have all three of them.
20 BY MR. FLAXMAN:
21 Q. I'm going to direct your attention to what's been
22 previously marked and I think stipulated to as Plaintiffs'
23 Exhibit 61.
24 THE COURT: Okay.
25 BY MR. FLAXMAN:
95
Bishop - direct
1 Q. Now, is it your view that knowing the correct answer to
2 question 61 is something that's important for a lieutenant to
3 know?
4 A. It's important --
5 THE COURT: What is 61? Is this question 2 from the
6 written exam?
7 MR. FLAXMAN: That's correct.
8 BY THE WITNESS:
9 A. It's important because if a lieutenant doesn't know it,
10 then the officer may not be credited with the right amount of
11 overtime, or may get too much.
12 Q. When you worked as a watch commander, was there a
13 district -- a secretary?
14 A.